Durr v. State

Chalmers, J.,

delivered the opinion of the court.

The permission given by the court to the attorney who had been employed to assist in the prosecution, to go before the grand jury with the witnesses, and there act for the district attorney in framing the indictment, was improper. We entertain doubts as to whether the objection to it could be taken advantage of on a motion to quash. Mr. Bishop says that irregularities in the proceedings before the grand jury “ may under some circumstances be taken advantage of upon this motion.” We regard it as bad practice, and certainly as being much more appropriately done by plea in abatement. 1 Bishop on Criminal Procedure, §§ 747, 748.

After the jury had retired to consider of their verdict, one of their number was conducted by the bailiff to the house of a friend, a quarter of a mile distant from the court house, and there took dinner in a room by himself, out of the presence of the bailiff. It was affirmatively shown that he was not improperly communicated with by any of the white persons about the house; but there was no proof in relation to his communication with two negroes, one of whom certainly was, and the other may have been, on the premises. He was entirely alone while eating his dinner, but was in a room in the rear of the building remote from the observation of the bailiff and the white persons present, and the room had four entrances, through which strangers may have had access to him.

The rule on this subject is that the verdict was prima facie vitiated by his separation from his fellows. In order to rebut this presumption, the State must affirmatively demonstrate that he was not tampered with.! She fails to do this when she fails to account for all the period of his separation from his brother jurors, if it was at a time and place where he may have been improperly approached.

It is hoped that the circuit judge did not fail to punish the bailiff who was guilty of this gross violation of duty.

Judgment reversed and new trial awarded.