State v. Devlin

Ryland, Judge,

delivered tbe opinion of tbe court.

This was a prosecution for an assault and battery. There was a trial by a jury, and a verdict against tbe defendant. The record shows that after tbe testimony in this case was closed, tbe court called tbe nest case on tbe docket, being for a misdemeanor, against another defendant, and the testimony in this last, case being also finished, tbe jury were then instructed as to the law in this case against Devlin. This course of proceeding was objected to by tbe defendant, Dev-lin, who insisted that bis case should be first submitted to tbe jury and be determined before any other matter should be submitted to tbe same jury. In this we think the defendant was right, and for the irregularity in this matter tbe judgment below must be reversed. This may be looked upon as a small matter, and that tbe irregularity might have done injury to either party; but it is nevertheless an irregularity which this court must not allow. If we begin in this manner to sanction such a proceeding, we can not tell when or *176 where it may end. It is the right of the accused to have his case tried by a jury free from any improper bias. This trial must be in its nature a single matter, and the court has no right to impose on the defendant and his counsel the necessity of waiting and listening to a different prosecution for a different offence; and has no right to draw the attention of the jury to a new and different prosecution before the first one submitted to them is determined.

This is a dangerous precedent, and it requires condemnation at once. Irregularities begin at first by degrees, and are tolerated because no perceivable injury has followed the first step. But the best method is not to sanction one so new, and which may lead to such consequences as the one here complained of. The judgment below is reversed alone on the ground of the irregularity here mentioned. The other judges concurring, the judgment will be reversed, and the cause remanded.