State v. Perry, 121 N.C. 533

ClArK, J.:

In Jenkins v. Railroad, 310 N. C., 438, it is said: “The granting or refusal of the application for the jury to view the premises is a matter which rested in the sound discretion of the trial Judge. .On some occasions it may be very useful and indeed almost necessary. The matter is one which must be left to' the sound discretion of the trial Judge by whom such motion should only be granted when it shall seem clear to him that it is required in the interest of justice. But this practice is not to be encouraged.” There are some States in which express statutes have been passed recognizing the right to grant a jury of view, but the authority inheres in the Courts in the investigation of truth to call in this and other aids, and rests in the discretion of the presiding Judge in the absence of constitutional or statutory prohibition. It is upon this principle that maps, photograph, expert evidence and the like have been admitted without express statutes authorizing it. In the celebrated trial of Professor Webster for the murder of Dr. Parkman, the jury was permitted to see the place where the crime was committed. Com. v. Webster, 5 Cush. (Mass.), 295; and this was also done on the trial of Gluverius, 81 Va., 787, in both instances there being no statute to authorize it. In State v. Gooch, 94 N. C., 987, and other cases it lias been the recognized practice in this State. That excellent authority Wharton’s Cr. PI. and Practice (Section 707) says that the jury is permitted to visit the scene of the res gestae in criminal as well as civil cases, whenever such visit appears to the Court important for the elucidation of the evidence, but the visit must be jealously guarded to prevent conversation with third parties.” This is the accepted modern doctrine and is founded on reason, as the object of a trial is to avail of every means to ascertain the truth of the issue, guarding against an3r thing that may muddy its source.

Considered as an authorized inspection of the locus in quo, and as such counsel argued it, there was error; for it appears that the jury interrogated a passer by as to the identity of a certain house whose distance from the scene of the alleged crime was material. The answer may or may not have been correct, and the query was based upon the assumption of a given spot as the immediate locality of the crime which may have been erroneous. While there is a difference between the authorities as to whether or not the prisoner must accompany the jury on their inspection of the premises, (Thompson on Trials, Sections 886, 887), all concur that evidence cannot he taken on such occasions, the object being merely to present to the jury the scene more vividly than is possible by the description of witnesses, so that the jury may with a better comprehension apply the evidence of the witnesses, which must be taken only in open Court and in the presence of the prisoner. Under the settled practice, showers are appointed by the Court to point out the localities merely, and no more, so the jury may apply the evidence received on the trial. Thompson, supra, Section 914; Bailey’s Practice, 228; Archbold Practice, 407, (6th Eng. Ed.); State v. Lopez, 15 Rev., 407.

For a still stronger reason it was error for the jury to receive evidence on this occasion since in fact it was a view by the jury of the premises not under authority-of the Court. It ought rather, therefore, to be considered as a charge of misconduct by the jury. There are decisions that the bare fact of the jury having visited the scene of a capital offence with whose trial they are charged, though made without leave of the Court, is not, per se, ground for anew trial but that some prejudice must appear. People v. Hope, 62 Cal., 291. But we are not called upon to pass on that point, as to which authorities conflict, for the interrogation of the passer by was misconduct calculated to prejudice the prisoner. Hayward v. Knapp, 22 Maine, 5; State v. Lopez, 15 Nev., 407, in the leading case of State v. Tilghman, 33 N. C., 513, it is held that where “on a trial, the circumstances are such, as merely to put suspicion on the verdict by showing not that there was, but that there might have been undue influence brought to bear on the jury, because there was opportunity, the granting or refusing a new trial rests in.the discretion of the presiding Judge; but, if the fact be that undue influence was brought to bear on the Jury, as if they were fed at the charge of the prosecutor or the prisoner, or if they be solicited and advised how their verdict should be, or if they hear other evidence than that which was offered on the trial; in all -such cases there has been no trial in contemplation of law, and the court on appeal will as a matter of law direct anew trial, whether the prisoner was acquitted or convicted.” This has ever since been recognized as law and has been repeatedly cited and approved. The jury having, by their questions to-the passer by, “elicited other evidence than that offered on the trial”, it is ground for a new trial equally whether the visit of the jury to the spot was by leave of the (hurt or without such leave.

New trial.

Case Details

Case Name: State v. Perry

Court Name: Supreme Court of North Carolina

Date Published: Sep 5, 1897

Citations: 121 N.C. 533; 27 S.E. 997

Court Abbreviation: N.C.