State v. Andrews

29 Conn. 100 | Conn. | 1860

Ellsworth, J.

We are all satisfied that the prisoner is entitled to a new trial.

We do not attach any great importance to what was said by Small in the hearing of two of the jurors in the stage coach, for these remarks may be regarded as accidental, the hearing of which the jurors could not have avoided, situated as they-were, and which in fact, as they say, they did not notice or regard. But it is otherwise with the conversation in the bedroom. That was neither accidental, unavoidable or unheeded. It was a part of a conversation, private, free and confidential, and which took place after the two jurors had retired to rest, occupying the same room, if not the same bed. They both very well knew that the question in issue on the pending trial was the condition of the prisoner’s mind as to sanity and his capacity to commit the crime charged upon him. In such a case, to allow one of the jurors of the panel to listen to, if not participate in, a conversation addressed to him by a brother juror, not of the panel, in which it was stated that the prisoner on trial was a hard case, and, as the speaker had heard, had attempted the commission of a like and more barbarous offense at the south, stating the particular circumstances, without checking such freedom or silencing the speaker by reminding him that he was addressing a juror, can not possibly receive the sanction and approval of this court, unless we are prepared to remove every restraint upon jurors and allow them to be addressed as freely out of court as in.

We are aware that, under our practice of allowing jurors to go at large and unattended during the trial, they are unavoidably' exposed to an occasional remark touching the matter in issue addressed to them or uttered in their hearing; but any juror who has intelligence enough to comprehend the meaning of his oath, must know that he may not listen to such remarks, but must scrupulously avoid hearing them, and if he is so situated that he can not do this he must at once state what his relation to the case is and request that nothing be said in his hearing on the subject; which, if done, will probably secure the object. But if he will not do this, and will lend a willing ear to a continued series of remarks, the verdict must, however much it is to be regretted, be set aside, and the juror, and whoever has knowingly co-operated with him in causing this violation of a juror’s oath, be fined or punished. It is no slight matter to defeat or put at hazard a protracted laborious and expensive public trial. In this instance a second trial will involve the defendant and his friends, as well as the state, in great expense, besides greatly inconveniencing the numerous witnesses to be called upon, and interrupting the business if not consuming the entire term of the court.

The affidavit of the juror, that he did not act from an improper motive, is of no importance, for that is not the difficulty on which the motion in arrest is founded; nor that his mind was not essentially affected by what was told him. This he can not certainly know; he may think it is so, and after all his mind be insensibly affected. And so unsatisfactory is such a denial that some courts will not receive the juror’s affidavit at all, for they say he can not know with certainty that his view of the case has not been affected. This is the law in New Hampshire. I have no doubt this juror’s mind was essentially affected. The information given was direct, important in its character, and from a source which he must have regarded as trustworthy. We can see clearly that his mind might have been affected, and this is enough of itself to satisfy the rule; but I think it must in fact have been affected and greatly prejudiced.

We do not feel called upon to review the cases read from our own or the English books by counsel. They appear to us to be in harmony with the views which we have expressed, although it would at first seem that Judge Waite, in giving the opinion of the court in Pettibone v. Phelps, (13 Conn., 450,) laid down the rule with greater latitude. But the case called for nothing of the kind, and we very much doubt whether that learned judge or either of the members of the court intended to go beyond the case then on trial.

The other point in the case, the relationship of the juror Thomas to the defendant, has not been very much relied upon by the defendant’s counsel, and we think that it could not properly be. Its application to the case is placed upon the peculiar nature of the defense, but this we think can not afford a satisfactory distinction. Though it might be a proper matter to be addressed to the discretion of the court if brought to its notice in season, it is not to be regarded as a positive disqualification of the juror, and is not a sufficient reason for setting aside the verdict.

We advise that a new trial be granted.

In this opinion the other judges concurred.

New trial advised.