18 Kan. 16 | Kan. | 1877
Defendant in this ease was prosecuted in the court below under section 233 of the crimes act, (Gen. Stat. 369,) and was convicted and sentenced to imprisonment in the penitentiary for the term of three years and six months. He now appeals to this court. The facts necessary to be considered in the case are substantially as follows: On September 5th 1876, in the afternoon, a jury was impanneled to try the cause., A portion of the evidence for the state was introduced, but there not being time sufficient on that day to complete the trial, the cause was adjourned at about 6 o’clock until the next morning, at 8J o’clock. During this adjournment the jury were allowed to separate, but they were not admonished as required by section 235 of the criminal code, (Gen. Stat. 857, 858.) Said section 235 reads as follows:
“When jurors are permitted to separate after being impanneled, and at each adjournment, they must be admonished by the court, that it is their duty not to converse among themselves, nor suffer others to converse with them on any subject connected with the trial, .or to form or express any opinion thereon, until the cause is finally submitted to them.”
On September 6th, and 7th, the parties proceeded with the trial; and'on September 7th the defendant was found guilty by said jury. The defendant made a motion for a new trial, alleging among other things that the jury were permitted to separate as above set forth, without being admonished by the court, and that there was misconduct of the jurors, and others, during such separation. On the hearing of this motion, an affidavit of one of the jurors was read in evidence, which affidavit states among other things, that during said separation, and “during the evening of the 5th day of September 1876, and again on the next morning, a person who had heard the testimony of the witness Helen Banning, said to him (affiant) that he wished he (the person speaking) “was on the jury;” “that he” (the person speaking,) “would hang the old rascal;” “that he” (the defendant) “was guilty, and' ought to be hung.” (With regard to reading affidavits of
About the only question to be determined in this case is, whether the said failure of the court below to admonish the jury ás required by law, and the subsequent refusal of the court below to grant a new trial to the defendant because of such failure, must, under the circumstances of this case, be considered as substantial error. That the failure to admonish the jury was error, we suppose will not be questioned. But still it is claimed by the prosecution that it was not substantial error. It is claimed that a failure to admonish the jury, as required by statute,'is not per se prejudicial to the defendant’s rights, and therefore that it is not per se substantial error. We shall assume that this is correct, and still we cannot wholly ignore the imperative demands of this premonitory statute. The statute says that the court “must” admonish the jury; and therefore no construction should be put upon the statute that would allow it to be wholly disregarded, or even to be lightly considered. By failing to admonish the jury, as required by statute, the door is opened wide for intervening prejudice to enter during the irregular separation of the jury. By such a failure one of the safeguards to an impartial trial is broken down, one of the securities to an impartial verdict is overthrown, one of the evidences that impartial justice is done, is obliterated; and all this, without any fault on the part of the defendant. Therefore, where there has been a separation of the jury during an adjournment of the trial, without such admonition, and the defendant afterward moves for a new trial upon the ground of such separation, want of admonition, and intervening prejudice, we think it ought to be presumed, in the absence of everything to the contrary, that prejudice, injurious to the defendant’s rights, did intervene during such separation, and did result from such want of admonition; and therefore we think, that in such a case the new trial ought to be granted, and a refusal to grant the same would be substantial error. While
The judgment of the court below will be reversed, and cause remanded for a new trial. The defendant will be returned to Bourbon county, and delivered over to the jailor thereof, there to abide the further order of the court below.