241 N.W. 595 | N.D. | 1932
Lead Opinion
This is an appeal from a judgment of conviction in the county court of Benson county, of the offense of receiving stolen property of the value of $17.00 and from an order overruling a motion for new trial.
It is the contention of the appellant that the court erred in permitting the jurors to separate after the case had been finally submitted to them. The case was submitted to the jury at 5:45 P.M. on a very stormy evening on the 20th day of November, 1930. A short time after the jury had retired, the trial judge, Hon. O.D. Comstock, met defendant's attorney in the cloak room of the courthouse and stated to him that on account of the storm he thought of calling the jurors back and excusing them for the night. The defendant's attorney Mr. Butterwick made no objection and he was also present when the jurors were later brought into the courtroom by the bailiff and excused by the judge, without objection on the part of defendant's attorney.
The defendant states in an affidavit that he did not consent to a separation of the jury, but he does not say that he was not present when the jury was excused and permitted to separate.
There are affidavits from each juror stating, that before they were permitted to separate, "the judge cautioned us again not to discuss the case with anyone and not to allow any one else to talk to us about it, and that at no time during the trial did affiant ever discuss the case with anyone nor did anyone discuss it with affiant."
T.A. Hanson and Harry Adelman made affidavits stating, in substance, that the jurors, while at supper in the hotel, discussed the case among themselves and laughed and joked about it.
H.C. Hanson states in an affidavit that he and Even Lamen were appointed by the court as bailiffs in charge of the jury. That they made arrangements at the hotel for the jurors' supper; that they ate at tables by themselves away from the public and during all of the time he was in charge of the jurors, he did not hear or see a juror talk to anyone and did not see anyone talk to any of the jurors.
There is no claim that there was any error in the trial. The *58
contention is that it was error to permit the jury to separate, after having once retired for a consideration of the case. It is well settled in this jurisdiction that a separation of the jurors after the case is finally submitted, is an irregularity, but where it affirmatively appears that no improper influences were used or attempted, and that no prejudice could have resulted therefrom, such irregularity does not entitle the defendant to a new trial. State v. Zimmerman,
In the instant case the jury had been out for some little time after retiring, when they were brought into court by the bailiff under orders from the court. They were again admonished not to talk to anybody about the case or to permit anybody to talk to them, after which admonishment the court permitted the jurors to separate, but ordered them to appear in court the next morning at nine o'clock. At nine o'clock the next morning they appeared and were again sent out by the court for a further consideration of the case, and in a very short time they found the defendant guilty.
The only question on appeal is was it error for the court to permit the jury to separate after the case had been submitted to them. South Dakota under the same statute, in the case of State v. Church,
This opinion was written on rehearing and it overrules the former decision of the court in the same case,
The case of People v. Hawley,
"In the state of Ohio the statute provided that `in the trial of felonies the jury shall not be permitted to separate after being sworn, until discharged by the court.' In Cantwell v. State,
In some states statutes have been passed permitting the separation of jurors after the case has been finally submitted in cases of misdemeanors. The case of State v. Church, cited above, is a misdemeanor, but as said by the South Dakota court, the statute makes no distinction between felonies and misdemeanors. The statute says specifically that jurors sworn to try acriminal action may at any time before the cause is submitted to the jury, in the discretion of the court, be permitted to separate or be kept in charge of the proper officers, etc. In the case of People v. Weston,
The primary purpose of keeping the jury together during the trial is to prevent communications reaching them except through the properly guarded channels of the law. The cases on the subject are collected in the note to People v. Casino,
There is some confusion in the decisions arising from different statutes and there is a clear distinction between separation of the jurors before the case is finally submitted to them and after the case has been submitted. It has always been and is now clearly the intent of the law, requiring jurors to be kept together, to safeguard the rights of the defendant and of the state, by preventing an opportunity for communication with the jurors after the case has been finally submitted. It is *62
true that under subdivision three of § 10,917 a new trial may be granted where the jury have separated without leave of the court after retiring to deliberate upon their verdict. Under this subdivision it has been held that the court has implied authority to permit the jury to separate, but this statute must be read in connection with § 10,857, which states specifically that "The jurors sworn to try any criminal action, may, at any time before the cause is submitted to the jury, in the discretion of the court, be permitted to separate or be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial and to return them into court at the next meeting thereof." This is the only statute which expressly gives the court authority to permit the jurors to separate and the authority given is limited to the granting of permission before the case is finally submitted. It follows that any action on the part of the jurors in conflict with this section is irregular, but there are cases like the California case, where the doctor was called in an emergency and where it appears affirmatively that no harm was done; like the Zimmerman Case,
We are of the opinion that the statute does not contemplate any such separation after the case is finally submitted. Such a separation furnishes the opportunity, which the statute is intended to avoid. Inasmuch as the statute does not make any distinction between felonies and misdemeanors, but applies specifically to all criminal actions, the judgment appealed from must be and is reversed and a new trial is ordered.
BIRDZELL and NUESSLE, JJ., concur.
Dissenting Opinion
The only question involved in this case is — *63 was it error for the court, under the particular circumstances of this case, to permit the jury to separate after the case was submitted to them and before the verdict was returned?
The case was submitted to the jury at 5:45 P.M. on November 20, 1930. On account of a storm raging, the trial court in consideration of the interests of the jurors, desired to permit the jury to separate so as to go home and look after affairs. But before this, however, in the absence of the jury, he consulted with Mr. Butterwick then counsel for the defendant as to his intention and there being no objection voiced by the counsel for the defendant he had the jury brought into court. The defendant, in his affidavit says:
"That the defendant after the court had instructed the jury visited with his wife in the court room for a few minutes and then . . . started down town and he had gotten to the first stair landing out of the court room and stood there visiting . . . for a short time and while so doing his daughter called to him that the jury had returned into court and were through. That thereupon he went upstairs and entered the court room; that the judge was releasing the jury then and he did not at that time know what had been done and he had not been advised by his attorney of what had been done prior to it and did not know till the jury was released what had been done. He did not give his consent to the discharge of the jury in this manner nor did he know that they were discharged by the court at the time he entered the court room as it was too late for him to sense what was going on before the jury was discharged in this manner. If his attorney made an assent to this it was without the knowledge or consent of the defendant and that he gave him no authority to waive any of his legal rights in the premises if he had any."
Defendant's counsel was present, listened to the statements of the court permitting the jury to separate, and to the instructions the court gave to the jury regarding their duty not to consider the case until they met for deliberation. Neither the defendant nor his counsel raised any objection to the separation — in fact it is clear the separation was with the tacit approval of the defendant's counsel, and therefore of the defendant.
As early as 1891 this court discussed the effect of tacit consent by *64
party and consent through counsel. In Boss v. Northern P.R. Co.
The defendant was being tried for a misdemeanor. He could waive his right to be present at the trial (Comp. Laws, § 10,771); he could waive his right to a trial by jury (Comp. Laws, § 8966); and certainly he could waive his right to the jury being kept together.
In State v. Glass,
It will be noted this separation was not a case of "misconduct on the part of the jury;" but was with the consent of the defendant and under the direction of the court. If a separation of jurors without the consent of the court, and in violation of the instructions of the court, does not in all cases vitiate a verdict then why should a separation permitted by the court with the consent of the defendant and in a case of a misdemeanor vitiate the verdict? In the case of State v. Thompson,
A new trial can not be granted except on the grounds set forth in the statute. Comp. Laws, § 10,917. These statutory grounds are exclusive in their nature. State v. Hagen,
Subdivision 5 says a new trial may be granted when the court "has done or allowed any act in the action prejudicial to the substantial rights of the defendant." If there be error here it was error on the part of the court; but such error must be prejudicial to the defendant's substantial rights. The record affirmatively shows there was no prejudice to his substantial rights.
On this appeal the appellant, in his specifications of error, nowhere specifies that the evidence is not sufficient to justify the verdict. It is true one specification says "The court erred in refusing to grant the defendant herein a new trial as prayed for in a motion for a new trial." But the specification of error thereafter, in setting forth wherein the court erred, nowhere specifies the insufficiency of the evidence, though the motion for a new trial as made in the lower court did say "the verdict is contrary to law and clearly against the evidence." But the verdict is not against the evidence, as an examination of the evidence shows.
We must recall the consent of the defendant, through his counsel, was not obtained in the presence of the jury. It might be that the refusal of a defendant to consent to a separation, made in the presence of the jury and on such an occasion as this, where the jurors were anxious to get home to attend to their stock, might raise the question of prejudice against him if he had refused; but that is not the situation here. His consent through his counsel, by failing to object and by his tacit approval, was made in the absence of the jury and the jury when brought in must have known the defendant consented, and therefore if *66 it had any effect would be likely to make a favorable impression for him.
No prejudice is shown here. Every one of the jurors swears that they had not begun to deliberate or consider the case when they were recalled to the court room and discharged. Each one swears that he did not talk with any one or discuss the matter with any one while separate from the others. It is true there are affidavits from two outsiders stating they heard some references to the case — its triviality and its expense — on the part of some of the jurors while in custody of the bailiff. But this is contradicted by the jurors and by two others. Clearly it affirmatively shows no prejudice resulted.
The majority opinion cites the case of State v. Church,
The majority opinion cites the case of People v. Hawley,
To say that the separation of the jury by direction of the court and with the tacit approval of defendant's counsel, in a case which ordinarily could be tried by a justice of the peace, or a justice and one juror, where the evidence shows defendant guilty and where it affirmatively appears there was no prejudice to him, necessitates a new trial, is certainly overlooking the principle involved in § 11,013 of the Comp. Laws which says: "After hearing the appeal, the court must give *67 judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties."
The judgment should be affirmed. I am authorized to say Judge CHRISTIANSON concurs in this dissent.