Organ v. State

IIaNdt, J.:

The first, second, and third errors are assigned to the venire fa-inas for the grand jury, the return on it, and the oath administered to the grand jury when it was organized in the circuit court. No motion to quash was made, nor plea in abatement filed, presenting any of these objections, but the prisoner appeared and pleaded in bar to the indictment.

The venire does not constitute a necessary part of the record. *687 unless some objection bas been taken to it in tbe court below, and it is introduced into tbe record by bill of exceptions, for tbe purpose of having its validity examined in this court. Boyd v. State, 1 How., 253 . Its absence from tbe record is, therefore, no ground of error.

Nor is it competent for the prisoner to question its sufficiency in this court, when he has raised no objection to it either by motion or plea in abatement, in the court below, but has pleaded in bar, and been convicted. Brantley v. State, 13 S. and M., 468.

It is also urged, that the court erred in refusing to exclude from the jury the exclamation of the witness Obannion, as to the prisoner having stabbed another person than the party named in the indictment. None of the circumstances connected with that exclamation are set forth in the bill of exceptions. Nothing appears but the isolated expression, and the bill of exceptions does not show that this was all the testimony of the witness. Other facts and circumstances might have been stated by the witness necessarily connected with the res gestee, and making the exclamation proper evidence. Experience shows that witnesses are not unfrequently in the habit of stating much irrelevant matter in giving their testimony, and also, that many things which, taken disconnected from all the facts and circumstances proved by the witness, seem to have no relevancy to the cause, when taken in connection with the w'hole evidence, have a most important bearing. In the absence, then, of all other testimony, this court cannot properly deterrpine whether this evidence was improperly admitted, and will presume that the court below acted properly in refusing to exclude it. Otherwise, it would be in the power of any party on trial, to isolate from the entire evidence any portion of it, seeming, when alone, to be wholly foreign to the res gestae, except to its admission, and have the judgment against him reversed in this court, when, upon the whole evidence, it would appear that the court below acted with perfect propriety.

It is next objected, that after the case had been submitted to the jury, and they had left the bar to retire to their room to deliberate on their verdict, one of them separated for a few minutes from his fellows, and was out of the presence and supervis *688 ion of the bailiff. This presents a point of much diversity of opinion among the most learned courts of the Union.

On the one hand, it is held to be incumbent on the accused to show something more than the mere separation of the jury to set aside the verdict. This is the rule in New Hampshire, in Connecticut, in North Carolina, and in Indiana. 7 N. H., 290; State v. Babcock, 1 Conn., 401 ; State v. Miller, 1 Dev. and Batt., 500; Wyatt v. State, 1 Blackf., 25 .

On the contrary, it is held in Yirginia and in Tennessee, that if the separation was such that the juror might have been improperly influenced by others, it is sufficient ground for setting aside the verdict. Commonwealth v. McCall, 1 Va. Cases, 271; Overbee v. Commonwealth, 1 Rob., 756 ; 10 Yerger, 241. The reason of this rule seems to be fully sanctioned in Massachusetts, in 12 Pick., 496 , and this court has acted in conformity to it. Hare v. State, 4 How., 187 ; Boles v. State, 13 S. and M., 398.

We are satisfied that this is the sound and safe rule. In dispensing with the ancient rigor in the treatment of juries, which tended to operate coercively on their judgment, the most enlightened courts have ever firmly adhered to the necessity of keeping the jury together. Any departure from this practice, which is not sufficiently explained to exclude the possibility of undue influence in the particular instance, must lead to the greatest uncertainty in the rule, the most unsafe judicial discretion in its application, and the destruction of public .confidence in the solemnity of trials by jury. If any separation is to be allowed, without incurring the imputation of irregularity, for what length of time and for what purposes may it be ? How frequently may it be practiced, and to what distance may it extend ? By what means are communications between the juror and other persons which may take place, and which must necessarily be secret, to be disclosed ?

These considerations show the looseness and dangerous uncertainties to which the practice would lead, and the soundness of the rule, that every separation of the juror from his fellows and the bailiff, should be treated as vitiating the verdict, unless it be affirmatively proved by competent evidence that the juror has been guilty of no improper conduct.

*689 This leads us to consider the last question, whether it is proper to admit the juror himself as a witness to prove the propriety of his own conduct.

We think such a practice of the most evil tendency. If there have been corrupt communications between the juror and others, they must from their nature be secret, and, in almost every case, impossible of proof by other testimony. Any juror who would be guilty of corruption, would not scruple to purge his conduct of all suspicion by the most comprehensive swearing, and then the only security for justice would be the right of the judge to examine his credibility; and as there would probably be no evidence to impeach his veracity, and no circumstances going to show that he was tampered with, it would rarely, if ever occur, that the judge would treat his testimony as false. Thus the verdict, however corrupt, is established beyond the possibility of correction.

We think, therefore, that, the regularity and purity which should ’characterize judicial proceedings are best promoted by establishing the rule, which, though rigid, is the more plain and easy of application, that any separation of the juror from the presence of his fellows, and the superintendence of the bailiff, is prima facie evidence of irregularity, and that his affidavit is inadmissible to justify his conduct during the separation.

For these reasons, we reverse the judgment, and grant a new trial.