nication, (the juror's affidavit,) says: From what has been disclosed to the court, I am satisfied in my conscience, that an improper communication took place between the plaintiff and the foreman of the jury, and therefore, I am of opinion that the verdict should be set aside. New trial awarded. A new trial was grant ed, because the plain tiff's son in-law said to one of the jurors, that the cause was of great 2. KNIGHT V. THE INHABITANTS OF FREEPORT, May T. 1816, 13 Mass. Rep. 218. Motion for a new trial, on the ground that one Briggs, who was a witness for Knight, on the trial of the cause, after the empannelling of the jury, and before the trial, applied to one of the jurors, and stated to him that this cause was of great consequence to him, Briggs; and, if it went against Knight, he, Briggs, should have to pay the costs; and that the defending the action was a spiteful thing on the part of the inhabitants of Freeport. quence to The juror testified to the truth of the foregoing statements, him, that and added, that Knight was not present at the time, nor did the have to pay juror know that he, Knight, had any knowledge thereof. It was the costs, if admitted that the said Briggs was Knights' son-in-law, and did assist him in supporting the cause. conse he should the cause should go against the plaintiff, and that of the ac the defend ants. Per Cur. Too much care and precaution cannot be used to preserve the purity of jury trials. The attempt to influence the the defence juror in this case, was grossly improper, and ought to be distion was a countenanced. It is not necessary to show that the mind of the spiteful thing on juror, thus tampered with, was influenced by this attempt. Perthe part of haps it is not in his power to say whether he was influenced or not. If he was, there is sufficient cause to set aside the verdict; and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes; and every one ought to know that for any, even the least, intermeddling with jurors, a verdict will be set aside. New trial ordered. And where the prevail ing party in a cause 3. COTTLE V. COTTLE, June T. 1829, 6 Greenl. Me. Rep. 140. Per Cur. Weston, J. The party obtaining a verdict in this ry, previ case, did, during the session of the court at which this action tried by ju trial, but conveyed was tried, carry one of the jury to whom his cause was submit- ous to the ted, knowing him to be a juror, several miles in a sleigh to the during the house of a friend of the party, where the juror was gratuitously same term, provided with refreshment and lodging. Whether furnished at one of the the party's own house, or at the house of another by his procure- jurors seve ment, either as an act of hospitality, or for a pecuniary compen- his own sation to be paid by the party, is equally exceptionable. This sleigh, to is by statute made a sufficient reason, at the discretion of the of a friend, court, to set aside the verdict; St. 1821, ch. 84, s. 15. There is where he was hospi no doubt, also, that at common law, independent of the statute, tably enter it would afford just ground for the interposition of the court. ral miles, in the house tained for the night; a new trial There is too much reason to believe that the party intended the verdict to practice with the juror. He sought his society, and attempted this rea was, for to impress his mind with the justice of his claim. It is insisted son, set that the juror was not in fact influenced, and that justice has aside, and been done between the parties. It may be so; but it may be use- awarded. ful to the party to learn, that a good cause may be injured, but cannot be promoted, by conduct of this sort, and to the public generally, to know that it will be tolerated in no case whatever. New trial granted. II. FOR MISCONDUCT OF THE JURY. 1. The court GRENNELL V. PHILIPS, June T. 1805, 1 Mass. Rep. 530. Sewall, J. With respect to the conduct of the jury among will grant a themselves previous to their verdict, the testimony of a juror new trial for gross may be admitted as to overt acts, which may be the subject of mishaviour legal inquiry, and that each member of the jury may be a com- or legal im petent witness. And when, upon such evidence, any gross mis- propriety in a jury. behavior or legal impropriety of conduct, sufficient to destroy the credit of a verdict shall be made to appear, a verdict thus invalidated ought to be set aside.* 2. MITCHELL AND WIFE V. EHLE AND WIFE, Dec. T. 1833, 10 Wend. N. Y. Rep. 595. Where a ju The jurors in this case, after an ineffectual attempt to agree ry left it to * See Castairs v. Stein, 4 M. & S. 192; and Rex v. Burr, 5 Price, 173; Hill v. Yates, 12 East. 229; 1 Stra. 642. And see Aylett v. Jewell, 2 Black. Rep. 1299' as to casting lots, and Clark v. Stevenson, 2 Black. Rep. 803, where the court held. that the subsequent declarations of the jury should not vitiate a general verdict given according to the merits of the case. er the ver lot wheth on a verdict, left it to lot whether the verdict should be for the dict should plaintiffs or defendants, by placing ballots in a hat, some marked be for the prize, and others being blank, to be drawn out by the jurors ; plaintiffs or defendants, and, if more prizes than blanks were thus drawn out of the hat, and the lot it was agreed the verdict should be for the plaintiffs, otherwise eventuated in favor of for the defendants. the defend ants, a new trial was granted. It Per Cur. Sutherland, J. The verdict was manifestly the result of the lottery, and not of the deliberations of the jury. must be set aside. 3. It is a suffi cient cause FRENCH V. SMITH, ET. AL. Feb. T. 1827, 4 Vt. Rep. 363. The defendants moved for a new trial, because one of the for grant jurors had, at a previous term of the court, formed and expressing a new ed an opinion on the merits of the cause, which was in accordtrial, that one of the ance with the verdict. This motion was supported by the affijurors, pre davits of two witnesses, swearing to declarations of the juror, trial, had expressive of a strong opinion in favor of the plaintiff, and by formed and the affidavits of the defendants, showing their ignorance of the expressed an opinion facts until after the trial. On the other side, the affidavit of the in favor of juror was produced, in which he denied having formed such prethe party vious to the who suc ceeded. vious opinion, or having uttered the declarations imputed to him. Per Cur. Royce, J. It is settled in this court, that the matter alleged in relation to the juror, if established by due proof, is a sufficient cause for granting a new trial; Deming & Wellman v. S. & E. Hurlburt, 2 Chip. 45; Brownell & Danforth v. Reynolds, decided, in Bennington county, on the present circuit. And, notwithstanding the denial of the juror, we think the allegation is supported by the affidavits. He must be supposed to have misrecollected, of which there is the greater probability, since he admits having held conversations respecting the suit. New trial granted. 4. EVANS V. M'KINSEY, Fall T. 1821, 6 Little's Ky. Rep. 266. Per Cur. Owsley, J. On the application for a new trial, it But & ju ror's hav appears to have been proved that one of the jurors, before the ing express trial, had been heard to say, that he had heard the evidence as ed opinion against the to the right of the parties to the slaves in contest, and had made up his opinion who ought to recover, and that he wished to be vor ho af upon the jury; and if he should be, he would hang the jury forever, or find for M'Kinsay. It was on making this discovery, ground for that M'Kinsey applied for, and obtained a new trial. party in whose fa terwards a new trial. This court is unable to perceive any reason for disturding the verdict, on the ground of the discovery made by M'Kinsey. If the verdict had been against Evans, the evidence introduced by M'Kinsey might have formed very satisfactory evidence of the partiality of the jury against him; but it is difficult to imagine how the declaration of one of the jury, that he would find for M'Kinsey, can be construed into evidence of partiality against him, so as to warrant the court in setting aside the verdict found contrary to those declarations. The circumstance of the verdict being contrary to the juror's declarations, is conclusive to show that, if those declarations were, in fact, made, they must have been either the effusions of mirth or levity, and that, when called on to decide the contest, the juror, under the more solemn and controlling influence of his duty and oath, gave a decision free from that bias, which he might otherwise have been supposed to entertain. Judgment reversed. 5. without be ness, after state facts new trial BOOBY V. THE STATE, Feb. T. 1833, 4 Yerger's Tenn. Rep. 111. Conviction for receiving stolen goods, knowing them to have If a juror, been stolen. Motion for a new trial, because, after the jury re- ing sworn tired to their room, one of the jurors stated to the rest of the as a wit jury, which they regarded as evidence, that the defendant had the jury stolen a hog in the county, and made other statements, from what has retired, he had heard, and verified before them, which was not given in as of his evidence upon the trial, and which was a strong inducement, and own knowl edge,which partly the cause of their giving a verdict against the defendant. were regar Per Cur. Whyte, J. The other ground for granting a new ded by his fellow ju trial, set forth in the affidavits of Holloway and Boyte, is, that rors as evi after the jury had retired to their room, one of the jury stated to dence, a the rest of the jury, which they regarded as evidence, that the must be defendant had stolen a hog in the county; and made other state-granted, ments from what he had heard, and verified before them, which was not given in evidence upon the trial, and which was a strong inducement, and partly the cause of their giving a verdict against the defendant. This ground is of a very different character from the other; the defendant could not have any knowledge of it before the trial, to use it as a cause of challenge, for it had not any existence, and the first and earliest opportunity afforded by the legal course of proceeding was the application for a new trial. Although the act of this juror in making these statements, and that of the others in being at all influenced by them, was very irregular, improper and contrary to law; and, although it it does not appear on the face of the affidavits, that any malice or ill design actuated the relator of these matters, to make the disclosure stated in them; and it might have proceeded from ignorance, and even a belief that in conscience he was bound to tell all he knew or heard about the defendant; yet, be this as it may, their evident tendency was to injure most seriously the defendant, and the affidavits show this result; for they state that the rest of the jury regarded them as evidence, and was a strong inducement, and partly the cause of their finding a verdict against the defendant. This verdict is too palpably vicious to require the citing authorities to prove that it ought not to stand. What the juror knew of the defendant ought to have been proposed and offered in court; and, if admissible, there rendered, to be observed upon by the defendant's counsel. The contrary course that has taken place in this cause, is directly against and repugnant to the constitution of this state. New trial granted. A separa 6. WRIGHT V. BURCHFIELD, 3 Ham. Ohio Rep. 56; S. C. Ohio tion of the Motion for a new trial for the misbehavior of the jury. The before it ed into court, is no Nor the mere separ before Per Cur. We think there is no sufficient reason to set aside the verdict in this case. Nothing is more common than to consent that a jury may separate after they agree upon a verdict, and before it is rendered in court. The sanction given by the parties, and by the courts to this practice, is conclusive that it is not considered, in its nature, dangerous to the right administration of justice. Motion for a new trial is denied. 7. WINSLOW V. DRAPER, March T. 1829, 8 Pick. Mass. Rep. 171. Motion for a new trial, because the jury separated before ation for a they found a verdict on the issue submitted to them. short time Per Cur. It seems to be settled that a mere separation of the agreeing jury, of itself, does not vitiate a verdict; but in the cases where this principle was established, the separation was probably for a short time, and we should not be willing to adopt it, where upon their verdict. |