16 S.D. 180 | S.D. | 1902
Upon an informatian duly filed, charging the plaintiff in error with the crime of grand larceny, he was tried, convicted, and sentenced to a term in the state’s prison. A motion for new trial was made and denied. The case is now before us on writ of error issued out of this court. The plaintiff in error seeks a reversal of the judgment of the court below on three grounds: First, alleged error of the court in denying the challenge of the plaintiff in error to the panel of jurors summoned by the officer, on the ground that the officer was disqualified to summon the same by reason of bias; second,, for the alleged error of the court in denying the challenge of
It is contended by the attorney for the state that the affidavit of the juror was inadmissible, and should not have been considered by the court. .This, no doubt, is correct. This affidavit, however, seems to have been disregarded by the court, and properly so. It may be regarded as settled law in this state that the affidavits of jurors cannot be received by the court to impeach their verdict. Edward Thompson Co. v. Gunderson, 10 S. D. 43, 71 N. W. 764; Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142, 9 L. R. A. 820; Gaines v. White, 1 S. D. 434, 47 N. W. 524; Ulrick v. Trust Co., 2 S. D. 285, 49 N. W. 1054; Territory v. King, 6 Dak. 131, 50 N. W. 623. The record, however, discloses the fact, independently of the juror’s affidavit, that the foreman of the jury did propound to the-court a certain question, and that the court, made a reply thereto. In the bill of exceptions the then circuit judge has certified that the following proceedings took place on the trial of the action: “The court states; That, while the jury in the above-entitled action were deliberating as to what their ver
The learned state’s attorney has called our attention to the case of Lovett v. State (Fla.) 11 South. 550, 17 L. R. A. 705, and Gandolfo v. State, 11 Ohio St. 114. It appears from the former case that the state of Florida had a statute providing that in homicide cases, where the majority of the jury should recommend the prisoner to the mercy of the court, it should have the effect of reducing the punishment from death to imprisonment for life — practically, in effect, the same as our own statute upon this subject. In view of the provisions of the statute, the instruction was held proper. ° In the latter case the only irregularity complained of was that of the court in sending the statutes of the state to the jury, on their request, with a reference to certain sections bearing upon the matter they were considering. The learned supreme court of Ohio arrived at the conclusion that, as no rule of law governing the trial of criminal cases was violated, it was not error, as the court could not say the act operated or might have operated to the prejudice of the defendant. The authorities cited, therefore, do not sustain the proceedings of the trial court in the case at bar.
In our opinion, the action of the trial court was unauthorized and irregular; and, as'it may have prejudiced the plaintiff in error, the case must be reversed, and a new trial granted. It is so ordered.