81 P. 107 | Idaho | 1905
— It is contended by appellant in this case that there was such a separation of the jury after the case had been finally submitted to them for their consideration as to entitle him to a new trial. The facts constituting the separation are substantially as follows: The case was finally submitted to the jury about 11:30 o’clock A. M., February 24th, and they thereupon retired to deliberate as to their verdict. Between 12 and 1 o ’clock they were taken by the bailiff to their dinner, and about 1 o’clock they all came out of the dining-room and stood on the sidewalk in front of the hotel. While the jury were standing on the sidewalk in charge of the bailiff, the juror Canfield, without saying anything to anyone and without any permission, left the bailiff and the remainder of the jury and walked down Main street in the town of Mountain-home, a short distance, and then turned the comer and proceeded up another street at right angle to Main street for a distance of about one hundred and fifty feet from the corner and entered a store. The juror was gone for'a period of about five minutes, and then returned and joined the other jurors who had remained during the meanwhile in front of the hotel. The prosecution furnished the affidavit of the bailiff to the effect that he remained with the eleven furors
John Joseph testified that he was the proprietor of the store that Canfield claims to have visited, and that he “believes that he was in charge of the said store between 12 and 1 o ’clock on Wednesday, the twenty-fourth day of February, 1904, and he is 'positive that if Hiram Canfield bought a sack of tobacco during the hour above mentioned, that he did not speak of the above-mentioned case to said Canfield.” He further testifies that it was seldom that any persons were loafing in his store. Joseph’s wife testifies that she “believes” that her husband was in charge of the store on the day mentioned. This constitutes the showing made by the state to rebut the presumption of prejudice to the defendant. It will be noted that Joseph, the proprietor of the store, really testifies to nothing. He does not pretend to remember whether or not the juror caine to his store, nor does he appear to remember anything in connection therewith. We then have only the affidavit of the juror himself in explanation of his conduct and whereabouts for the period of from three to five minutes while he was out of sight of the bailiff and other jurors. The
In People v. Backus, 5 Cal. 275, Hempton v. State, 111 Wis. 127, 86 N. W. 596, and Organ v. State, 26 Miss. 78, it was held that the uncorroborated affidavit of a juror was not sufficient to purge his conduct from the imputation of corruption or impropriety. Upon this point we think those authorities are sound. We do not think, however, that such affidavits are inadmissible, but that, uncorroborated, they are insufficient For this misconduct of the juror the ease must be reversed.
Appellant also complains of the refusal of the court to give the following instructions requested by him: “Possession of property recently stolen, while evidence of guilt, is not conclusive, and where the defendant gives a reasonable explanation of his possession, the jury cannot arbitrarily ignore such evidence. If the facts stated by the defendant and the witnesses produced by him be true, the jury cannot find him guilty. It devolves upon the state to establish defendant’s guilt beyond a reasonable doubt by legal evidence, and until that is done the presumption of innocence is an absolute shield for him. ’ ’ The court refused to give this instruction on the ground that it was covered by the general instructions. We think this request was substantially covered by the court’s instructions, and there was, therefore, no error in refusing it.
The appellant assigns as error the insufficiency of the evidence to sustain the verdict, but since this case must be reversed and a new trial had, we refrain from any discussion of the evidence in the case. The judgment is reversed and a new trial granted.