8 Ohio 405 | Ohio | 1838
delivered the opinion of the court:
Two questions seem to be necessarily involved in the examination of the first error assigned in this case. The first is, whether' after a jury have retired to consider of their verdict, and shall have separated before returning their verdict to the court, they can afterward be permitted to retire to their room and further deliberate upon the case submitted to them; and, second, whether it-is in the power of the court, after a jury shall have agreed upon their verdict, and delivered the same in court, to send them out again for further deliberation.
As a general rule, a jury shall not be permitted to separate,, after retiring from the bar of the court, until they have agreed upon their verdict. Still, there may be peculiar circumstances which would, to some extent, justify a separation. But in no case-would it be proper for individual jurors to mingle with others than their fellows until a verdict is found. And should a jury, of their own pleasure, having been put in charge of a case, leave
Formerly, jurors were not permitted to separate .until their verdict was returned into court; and in order to compel them to .agree, they were deprived of the necessaries of life for the time being. But these rigid rules have been much relaxed in the practice of this state. We do not, it is true, permit jurors to separate until a verdict is found, but we allow them all necessary refreshment, and when they have agreed upon a verdict, if the ■ court is not in session they are permitted to put it under seal, and then separate. This verdict they return when the court again convenes. The verdict thus returned has the sarne^ effect, and must be treated in the same manner, as if returned in open court» before any separation of the jury had taken place. But if, after' having once agreed, and put their verdict under seal, a jury shall separate, and subsequently meet in their room and change this sealed verdict, such altered verdict could not, with propriety, lay ■the foundation of a judgment. Such conduct in a jury would constitute that degree of misbehavior for which a verdict ought to be set aside. The most common practice of this court is to direct the jury that if the court shall not be in session when they shall have agreed, to return their verdict to the clerk; and if he can not be found, to put it under seal, and bring it in at the open-ing *of the court In thus far relaxing ancient rules, we have experienced no inconvenience, and I have no doubt we might go further without any danger; for I believe the more confidence is placed in jurors, the more they are treated like reasonable men, the more will right and justice, through their instrumentality, be done. ,
In the case under consideration, the jurors did not misbehave. They did not separate until a verdict was found and placed under seal. This same verdict was, at the opening of the court on the ■next morning, delivered to the court. As before remarked, it must be treated and considered the same as if returned before there had been any separation of the jury. The question then arises, whether the court, after a jury have once returned a verdict, have the power to remand them to their room for further .consultation. When the jury return a general verdict settling the
The case under consideration is somewhat analogous. The jury found in favor of the plaintiff; they fixed upon the rule of •damages, and that rule was, the amount for which the property in litigation sold, together with the interest from a specified time. Nothing remained but to compute this interest, and for this purpose the jury might well be sent out. It was not with a view to make any change in the verdict, or to settle any new principle, but to carry out the original finding. And if there was any evidence before the jury showing the amount for which the property had been sold, and which had by them been overlooked, it was proper for the court to refer them to it. There was, then, no error in this case, in sending out the jury a second time.
The second error assigned is intimately connected with the first, and only differs from it essentially in this, that by it it seems to be supposed that the jury did not respond to the issue between the parties, inasmuch as they did not explicitly say that‘the defendants were guilty of the trespass. It is rarely the -case in our practice, that the jury return a formal and technical verdict. They usually find in general terms for the plaintiff or defendant, and-the clerk, in recording the verdict, applies this finding to the issues made up- by the pleadings. In this case the jury found for the plaintiff, which was equivalent to finding the' •several defendants guilty; and the clerk very properly so recorded their verdict.
The third error assigned, raises the question whether a plaintiff can.make use of a notice-attached to the defendants’ plea of •the general issue as evidence against the defendant. This is
in itself contain a defense to the action. If the facts therein alleged are true, the plaintiff may demur to it, and thereby raise the question whether those facts constitute a defense. But it is not so with a notice. It can not be demurred to. So far it is not. a part of the record. It does not constitute the defense in the case. That defense consists in the denial of the whole cause of action by the plea of the general issue. If the notice, then, can be used as evidence by the plaintiff, it must be on the ground that it-is an admission or confession by a defendant of the facts therein stated. But this is not the character or intention of a notice. It is intended merely to apprise the opposite party of the matters and things to be relied upon in defense, in the event that the-
In the case under consideration, the court directed the jury that, in the absence, of other proof, they might take as evidence against the defendants, an allegation in the notice as to the amount for which the property in litigation was sold at sheriff’s sale. In this there was error, and for this error the judgment must be reversed, with costs.
The case will be again set down for trial, and remanded to Trumbull county.