1 Cow. 221 | N.Y. Sup. Ct. | 1823
It was clearly irregular in the two jurors to separate from their fellows. But this does not affect the merits of the case, as between the parties. The ancient strictness, in relation to the conduct of jurors, is somewhat relaxed, as may be seen in Hackley v. Hastie & Patrick, de cided by this Court (3 John. Rep. 252.) Whether the verdict is to be set aside, must depend upon circumstances and the real justice of the case. If there is a probability of abuse, we then notice it; but here is none.
Motion denied.
As remarked by the Court, different degrees of strictness, in relation to the conduct of juries, have prevailed at different times : and, it maybe added, that their misconduct is vie»» ed in different lights, and with more or less jealousy, according to the nature of the cause, as whether it be civil or criminal ; and, as Judges have differed upon this subject, and the decisions hereon, by our Supreme Court, are few in number, a short review of the decisions iu.England, and in other states, cannot, I think, be unacceptable, (Ati(l
“ After the evidence has been heard, and the jury retire to consider of their verdict, the oath administered to the bailiff, who is sworn to keep them, is as follows: You shall swear that you shall keep this jury without meat, drink, fire, or candle; you shall suffer none to speak to them, neither shall you speak to them yourself, (not adding the words, touching any matter relative to this trial, as in 6 T. R. 530, 1, & supra,) but only to ask them whether they are agreed. So help you God. (Dalt. c. 185 ; 2 Hale, 296 ; Dick. Sess. 223; Bac. Ab. Juries, G. ; 1 Chitty, C. L. 632.) AccordiBglyi in ComrDig. tit Enquest, F, it is laid down, that after the evidence given, the jury ought to continue together till they agree of their verdict, without eating, drinking, fire or candle, or speaking with any one, except the bailiff, to know if they be agreed. (Co. Litt. 227, b ; 3 Inst. 29, pl. 13. 15 Hen. 7. 1,2.) If a great tempest happens, the jury may depart from the place where they are to consider of their verdict. So if a sudden affray happens, or if the house be upon the point of falling. (vin. Abr. tit. Trial, G g 4. cites Bro. Verdict, pl. 19,14 Hen. 7,29. Per Rede, Davers, & Tre
Accordingly, in The King v. Woolf et al. (1 Ch. Rep. 401) at an adjourned Sittings, at Guildhall, in April, 1819, Cor. Abbott, Ch. J. the trial of an indictment for conspiracy commenced on the morning of the 20th, and continued till about 11 at night. The case being then unfinished, Abbott informed the jury that they might retire to their families ; but specially warned them not to have any communication, with any person, touching Or concerning the matter in issue. They retired, accordingly, and the next morning they assembled again; and, the case being concluded at a late hour in the afternoon of that day, "they found the defendants guilty. The defendants, and their attomies, were ignorant of such separation and retirement, until after they had found their verdict.
On motion to set aside this verdict, the cases were fully gone into by four counsel for the defendants; and they cited Lord Delamere’s case, (4 Harg. St. Tr. 232, 1 Jac. 2, A. D. 1685; and Kelyng, 56) where it is said, by all the Judges, (on a question whether the Court could allow the jury to separate) the jury, being once charged, can never be discharged till they have given their verdict; this is clear; and the reason of that is, fop feqr of corruption and tampering with the jury. An officer is stfom te
But the Court were unanimous in refusing the rule. Abbott, C. J. who tried the cause, ¡¡aid, (inter alia) “ The trial began between 9 and 10 in the morning ; it had proceeded until 11 o’clock at night, or later, before the evidence on the part of the prosecution closed. Learned counsel were employed separately for several defendants. It must be assumed, (and nobody could assume to himself the contrary,) that in that stage of the case, evidence would be laid before the jury on the part of the defendants. It became matter, therefore, of necessity, that the trial should be adjourned, and an adjournment accordingly took place from the necessity of the case, the jury being fatigued both in mind and body; audit would have been injurious to the case of the defendants, even if the Judge and jury had had strength enough to go on till the trial came to a close ; I say, most injurious
Bailey, J. said, “ In almost every trial, it is in the experience of persons who attend courts of justice, the J udge as well as the jury are occasionally absent for a short period. This is very often so ; and, perhaps, it may he said, improperly. But they go out only for a few minutes. If, then, a, separation for a night will vitiate a verdict, why not k separation for a few minutes ?” Again : “ Every object and purpose of justice is effectually answered, and every supposed inconvenience rebutted, by the law as it now stands ; for as the law now stands, if the jury separate without consent, and, improperly so, it is in the discretion of the Judge who tries the cause, to impose upon them such punishment'and fine as he may think fit.” [lie admitted that, where the verdict was against evidence, the separation might weigh towards setting it aside ; but proceeded,] “ When the fact of' separation, per se, is urged as the ground for a new trial, it is of no weight.”, Bailey & Holroyd, Js. both thought this question might be more solemnly reviewed on error, if the party choose to proceed in that way ; and Holroyd, J. said, “ I do not find any authority, inlaw, which says that the separation of the jury, in a case between party and party, or in case of a misdemeanor, does avoid the verdict. If the jury are guilty of any improper conduct, in any separation, which ought not to take place without the authority of the Court, they may be guilty of a misdemeanor, and may be fined as such ; but it appears to me that that would not avoid the verdict. In case any probable mischief is likely to result from a separation, without any care being taken to prevent it, either from the inattention of the Judge, or upon any suggestion of that kind, you may ^¡reet such measures to be taken as shall prevent the effects of such sepa».
Best, J. said, “lam alarmed at the extent to which the proposition contended for may be carried, if it is well founded ; for if thi*is a mis-trial, in consequence of a separation of the jury, I cannot discover any distinction between a separation for a minute, and a separation for a considerable period of time ; for, if the argument is right, it is right to this extent, that if by any accident a jury gets out of the box for a single minute, it is a mis-trial. Let us see the extent of mischief to which this doctrine may be carried. Suppose, in the ease of a trial for capital felony, some of the jury by accident get out of the box, and the prisoner, in the result of the trial, is acquitted, the consequence of this argument would he a mis-trial, and the man must be put on his trial again. That is a consequence which alarms me, and I do not feel that we ought to give any countenance to an objection which would go to such a mischievous extent. Several cases have been cited, and it appears that the only one which touches this question is that of Lord Delamere, in the 4th Stale trials, where the Judges appeared to have said, that the jury once charged cannot he discharged. That that might be law at one time, I have no doubt; but the practice for a long period of time will shew what the law is; and Ijbelieve there is no J udge, who has sat for any length of time in this Hall, that has not known and approved of discharges of juries. The constant and uniform practice which has existed for a considerable length of time, will! shew that what is stated in Lord Delamere’s case is not now to govern our decision.” In another place, he remarked; “The J udge is vested with' a discretion on the subject, which be will exercise on his own motion, in keeping the jury together, or if either ef the parties desired it, no J udge would refuse such ah application. If it were stated by the parties, that there is cause to apprehend that some imgroper practices might take place if the jury were separated—that by mix-.
The American cases, on this subject, present nearly the same view of the question as the English, with the exception of Connecticut. In that state, though formerly held otherwise, and now apparently forbidden by a statute, the jury exercise the right of separating and assembling according to convenience, like our grand jurors in this state, even after they have retired from the bar, under charge of the officer. In Brandin v. Grannis, et ux. (1 Con. Rep. N. S.n. (a) in Error, JVoo. 1811, this practice was sanctioned by a judicial decision, of their highest tribunal. Yet shortly before this, (1808,) tlie late Livingston, J. (C. C. U. S. Lester v. Stanley, 3 Day's Rep. 287.) did not consider that practice warrantable under the statute, which he said appeared to have been made in affirmance of the common law ; and he told the jury, if they separated before they had agreed, he should set their verdict aside. The ancient practice, in that state, was in accordance with Judge Livingston's decision, as appears by an adjudged case in 1811 (Nichols v. Whiting, 3 Day's Rep. 287, n. a.) And in Bran-din v. Grannis, Baldwin, J. who delivers the opinion of the Court, seems to admit, that a literal interpretation of the statute would forbid a separation. He reposes himself upon a practical construction to the contrary, for a great number of years, which he holds consonant to the spirit of the statute, and vindicates the correctness of the practice by another provision, requiring from the petit jury an oath of secresy, like that which our grand
Neio-Jersey, In Clark v. Cole, (1 Penn. Rep. 278) the jury separated, after retiring, and before delivering their verdict. Some of them, while considering of their verdict, went out of the room, and returned again in a few minutes, and the Court refused to set the verdict aside, for this reason, as there was no improper practice of the party in whose favour the verdict was rendered. In Crane v. Sayre, on certiorari, (1 Halsted's Rep. 110) while an argument was pending before the Justice, as to the competency of certain testimony, some of the jurors left the room, and returned again without leave or consent, and without an officer to attend them. Curia. “ A juryman, who leaves his fellow jurors, without notice or leave, certainly treats the Court with great contempt, for which a fine ought to he imposed on him, as soon as the verdict is rendered ; and he ought to be committed till the fine is paid. It would retard the trial extremely, and work great confusion for the parties, if the Court had to call the list of jurors every few minutes, to be sure they were all present, as must he done if jurors may go off without notice or leave. But a verdict is never set aside for a juror’s misbehaviour towards the Court, unless it is prejudicial to one or other of the parties, and no suclt thing appears in this case.” Judgment a'f-
Rhode-Island. In Burrill v. Phillips, cor. Story, J. (1 Gall. Rep. 360)-the jury were charged late in thfe evening, and one of them, through mere mistake of his duty, left his fellows, and went immediately to his own home, at the distance of 2 miles, but was sent for, and returned back in about 2 hours, when the jury, without difficulty, agreed on their verdict; and, per Story, J. “ At first, I was struck with the inconvenience of allowing a verdict after a separation of the jurors; and when an opportunity had been given to tamper with them And, without doubt, as this is an application to the discretion of the Court, the verdict ought to be set aside, unless the conduct of the juror be free from unfavourable presumption. I am perfectly satisfied with the verdict in this case. Indeed, I do not see how it could have been otherwise, upon the evidence before the jury; and I should feel great reluctance in setting aside a verdict so well founded in law and justice. I am glad to be relieved from all doubt, by authority. The case of St. John v. Abbot, (Barnes, 441) is directly in point, and the distinction assumed by the plaintiff’s counsel, is, in general, well supported* I overrule the motion to set aside the verdict.”
Virginia. But in the important case of the Commonwealth v. John M'Caul, (Virginia Cases, 271) decided by the Superior Court, in 1812, the prisoner was indicted for grand larceny: The trial continued 4 days: on each of which the Court adjourned for about 2 hours, giving orders, that in the mean time the jury should be kept together, in a room by themselves, where they were allowed refreshments. On their way to the jury room, at the 2d adjournment, one of the jurors, having been unexpectedly sworn on the jury, separated from his felloWs for about 20 minutes, to attend to,
On moving to set this verdict aside, Mr. Wirt, for the prisoner, defied the Attorney General to produce a single case of life and death, in which a verdict was allowed to stand after a separation of the jury; and Mr. Nicholas, the Allomes; General, said that Mr. Wirt could not produce a single-case from the English books, in which the separation of one juryman from his fellows was considered sufficient to set aside the verdict. He said “ there are many instances in which the jurors may be subject to punishment for misbehaviour, and yet the verdict will stand ; and he referred to 2 Hale, 306. 21st Viner, 448. Bull. N. P. 308, and 7 Bac. 11,12. He referred also to a case stated in 2 Hale, 296, which is thus given by him: “ Upon not guilty pleaded, 12 are sworn to try the issue; after their departure, A, one of lhel2, leaves his companions, wMch being discovered to the Court, by consent of all parties, B, another of the panel, is sworn in the place of A, and afterwards A returns to Ms company, which being made known to the Court, A is called, and examined why he departed ? he answered “to drinkand being examined whether he had spoken with the defendant, denied it upon his oath; whereupon B was discharged from giving any verdict, and the verdict taken of A and the other 11, and A fined for Ms contempt.” (34 E. 3. Office de Cour, 12, in trespass.)
A majority of the Court were of opinion that actual tampering, or conversation on the subject of the trial with a juryman, was not necessary to set aside the verdict. And per Nelson, J. (who delivered the opinion of