30 Ill. 256 | Ill. | 1863
This was an indictment for manslaughter, and a verdict of guilty. A motion for a new trial was overruled, and exceptions taken, and the record brought here by writ of error.
The plaintiff in error makes these points :
That it was error to instruct the jury by consent of parties to seal their verdict and separate, and meet the court the following day, when their verdict would be opened and entered of record;
In refusing to hear the affidavit of Addison Weeks, one of the jurymen, in support of the motion to set aside the verdict, and for a new trial;
In refusing the first instruction asked by the defendant, and in 'modifying the second, third and fifth instructions asked by him.
The first point assumes the offense was not a misdemeanor, and therefore not within section 189 of the criminal code. That section, after providing that -an officer shall be sworn to attend the jury,'proceeds as follows: u Provided, however, That in any cases of misdemeanor only, if the prosecutor for the People, and the person on trial, by himself or counsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agreement, and receive any such verdict so delivered to the clerk, as the lawful verdict of any such jury.” (States’ Comp. 408.)
By the common law, in all cases, civil and criminal, it was required that a bailiff should be sworn to attend the jury, and keep them together without meat or drink, fire or candle, until-they had agreed on their verdict.
If they did not agree before the departure of the judge into another county, the sheriff was required to send them along in carts, and the judge took and recorded the verdict, in the foreign county. 5 Bac. Abr., title “ Juries,” 369.
The section quoted allows the jury not only to withdraw from the charge of an officer, but to seal their verdict and separate as an organized jury.
The order of the court, in this case was, not .to dispense with the attendance of an officer, seal their verdict and separate as a jury, but they were required to meet the court on the following day, when their verdict would be opened, and entered of record, thereby keeping the body in existence under the charge of an officer, and the verdict in their own control. In the one case under the statute, the jury would be fundue oficio / in this case, still existing. It is enjoined on the jury, by the terms of the order of court, that after sealing their verdict and separating for the night, they should meet the court on the next morning, and deliver their verdict in due form in open court. Being so, the accused could, by no possibility, lose any advantage, or be deprived of the privilege of examining the jury by the poll, which the law gave him. This is really the only reason why a jury, in any case, should deliver the verdict into court, so that they may be polled, and disagree if they desire so to do, or if the verdict is informal, that it may be put in form in their presence.
The question then arises, independent of any statute on the subject, when parties in a case, not capital, consent to such proceedings as are here shown, is the verdict vitiated ?
We cannot, seriously, discuss such a position; it is too plain for argument. We know of no ruling against it, except in the case of The State v. Populus, 12 Lou. An. R. 710, referred to by the counsel for the plaintiff in error. That case holds, that in all criminal cases, the separation of the jury, though by leave of the court, and with the consent of the accused and his counsel, will vitiate the verdict, if such separation takes place after the evidence has been closed, and the charge of the •court given, and before the verdict is rendered. We understand the whole current of authority to run the other way.
In capital cases even, where life is at stake, the separation of a jury, without consent, is not of itself error, and ground for a new trial. Something more must be shown. It must be shown that the accused might have been prejudiced by it —that the jurors, or some one of them, might have been tampered with, or improperly influenced, or some means exerted over them, in consequence of their separating, so as to influence their verdict. McKinney v. The People, 2 Gilm. 553; The People v. Douglass, 4 Cowen (N. Y.) 26; The State v. Babcock, 1 Conn. 401. These were all capital cases.
The People v. Dawson, 7 Wendell, 423. In this case, which was an indictment for murder also, the court, in commenting on the various decisions on this point in civil cases, say, the doctrine is the same in criminal and even capital cases, referring to the case of The People v. Douglass. In cases less than capital, in misdemeanors, and in all civil cases, the doctrine is too well established to be questioned. The King v. Woolf, 18 Eng. C. L. 117; 2 Blackford, 114; 2 Carter (Ind.) 435; 11 Ohio, 471; 2 Strobhart (S. C.) 178; 2 Richardson (S. C.) 119; 12 Pick. 496; 5 Hill (N. Y.) 32; 21 Mo. 461; State v. Weber, 22 id. 324.
The cases cited are cases where no consent was given. For much stronger reasons, then, where consent has been given, and entered of record, and the party deprived of no right, he should be bound by his agreement, and the proceedings held regular.
The record recites, “as the jury were about to retire to consider of their verdict, it was- suggested by the prosecuting attorney, as it was late in the day, the jury had better be allowed to seal their verdict, if they should agree before the court met on the following day, and disperse, and return their sealed verdict into court on the following day; to which proposition, the defendant, by his counsel, assented, waiving all exceptions to such separation on the ground of irregularity, if the practice should be held irregular.” We are clear in our opinion, that the verdict is not vitiated by this action of the court: No other rule could be adopted consistent with a proper, honest, and efficient administration of the law. Where consent has been given, and even without it, and it is not shown improper influences have been exerted upon the jury during their separation, and no ground afforded for the suspicion of any such influences, it would be but trifling with the administration of the criminal law, to listen and give weight to the objection. The statute has nothing to do with this case.
The refusal of the court to hear the affidavit of Addison Weeks, one of the jurors, was correct. Affidavits cannot be read to impeach the verdict of a jury. The juror should have declined to hear the remark of the sheriff. The officer might be fined for his improper conduct, but it could not vitiate the verdict.
As to the instructions, we are of opinion, a portion of the second, asked for by the People, was improper, as there was no evidence that the defendant had a knife. It was wrong then, for the court to insert in this instruction, the words, “also the manner in which the knife was used by the defendant,” thereby telling the jury the defendant had used a knife. A portion of the fourth instruction given for the People, is also objectionable. The charge was manslaughter, and the defense was justification. The words of the statute are, in substance, that a person indicted for this offense, may prove that, in order to save his own life, or to prevent his receiving “ great bodily harm,” he may kill his antagonist. “ Great bodily harm ” falls far short of the most serious bodily harm; the one may endanger life, the other not.
The first instruction asked by the defendant should have been given.
Section thirty-two of our criminal code defines justifiable homicide to be “the killing of a human being in necessary self-defense, or in the defense of habitation, property or person, against one who manifestly intends, or endeavors by violence or surprise, to commit a known felony, such as murder, rape, robbery, burglary, and the like, either' upon person or prop-, erty, or against any person or persons who manifestly intend and endeavor in a violent, riotous, or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein.”
We perceive no error in the modification of other instructions, except that the word “may,” at the close of the third instruction, should be “shall.” It is the right of the accused, under a well founded doubt of his guilt, to have a verdict of acquittal; the jury have no discretion about it. For the reasons given, the judgment of the court below is reversed, and the cause remanded.
Judgment reversed,.
