The opinion of the court was delivered by
Aftеr the appellant, A. J. Snyder, was discharged by this court in the case of In re Snyder, reported in
It appeared from the affidavits filed on the part of the appellant, on his motion for а new trial before the district court, that the jury retired for deliberation a little after twelve o’clock on the morning of the 1st of August 1877, and were out several hours before they agreed upon a verdiet; that said McGlothlin remained in the room with the jury during their deliberations and their discussion of the case the greater portion of the time they were absent from the court-room, and was actually present with them while they were considering what their verdict should be. No counter-affidavits were filed, and all the statements contained in these affidavits we may assume to be true. We suppose it must be conceded, that the continued presence of the officer in the jury-room during their deliberations was an irregularity; and the question is presented, whether such conduct will render the verdict void, and require it set aside, in the absence оf all explanation of the reasons of the officer with the jury, and in the absence of all showing whether the accused was prejudiced. It was held in The State v. Mulkins,
In view of thе law thus stated, and the provision of the criminal code, that the court shall grant a new trial “when the verdict has been decided by means оther than a fair expression of opinion on the part of all the jurors,” if the irregularity of the officer could have affected the rights of the prisoner injuriously, we are required to undo what was. improperly done. Can we say it is no harm for a bailiff, who has been producеd on the part of the state -in a criminal action to testify to material facts against an accused, to be with the jury in their deliberatiоns? This certainly would be a very unsafe rule, if answered in the affirmative. If the bailiff in this very case had been the prosecuting witness, John Hood, and hе had acted as McGlothlin did, no argument would be needed to show the gross impropriety of sanctioning such proceedings; and the faсt that the bailiff only testified to a few material matters instead of many, as Hood did, lessens, perhaps, the probabilities of improper influences being used toward the jury, but does not convince us that his presence might not have been prejudicial. The actual presence of the bailiff was not only unfair to free and private deliberation by the jury, but was a constant menace to the jurors who might have wished to question the facts testified to by the witness. Would not his presence have been likely to have deterred discussion upon his own evidenсe, and thereby prevented a fair expression of opinion on the part of the jurors? The very fact that this witness gave evidencе against the prisoner at the instance of the prosecution, might have induced the belief, in the minds of some of the
We are clearly of opinion that the law does not sanction a verdict surrounded with the opportunities for improper influenсes as this was, and that the district court erred in refusing to grant a new trial. It is therefore ordered that the verdict of the jury and the sentence аnd judgment of the court be annulled and avoided, and that the case be remanded for a new trial. It is further directed that the appellаnt be returned from the state penitentiary, and delivered over to the jailer of Linn county, there to abide the order of the district court of said county.