would be in opposition to the uniform action of our courts and There is a distinction drawn by the court in the charge to the jury, in the case before us, which we do not fully comprehend. They were told, that if there was a delivery of the horse by the prosecutor to the prisoner, upon a contract of hiring, altho' the prisoner at that time, within himself intended to convert the horse feloniously to his own use, if he practiced no fraud to procure the delivery, he was not guilty of larceny, as there was no trespass. But if he did practice an artifice, falsehood and deception, it would make him a trespasser and felo; Why? In the case just put, the very contract of hiring would be fraud, artifice, falsehood and deception, which ought to be as available, it would seem to "vitiate consent" as any collateral falsehood or artifice. It is safer and better we think, to adhere to the fixed and plain rules on the subject of larceny, heretofore, and for so long a time adopted and acted on in this State. Let the Judgment be reversed, and a new trial be granted. NASHVILLE. December, 1836. Telter V The State. NASHVILLE, Pecmber, 1836, Hudson The State. HUDSON VS. THE STATE. Although confessions obtained by threats or promises are not evidence, yet if they are attended by extraneous facts, which show that they are true, they will be received as testimony, as where the party thus confessing, points out, or tells where the stolen property is. Where property is stolen, and a person accused with the offence shortly after its commission, points out the place where the property is concealed, the presumption is that he is the thief and he will be so considered, unless he can reconcile his knowledge with his innocence. Although it has been settled in this State, that the affidavit of jurors may be made the foundation of a new trial; yet it is a dangerous principle, and will not be extended one step further than it has already been carried. It is a rule of law well settled, that if a jury after retiring to consider of their verdict, hear other testimony, it will form a ground for a new trial. Affidavits by jurors, that they founded their verdict upon particular parts of the testimony given in court, which particular testimony might abstractly be illegal, is not sufficient to authorise a new trial. Where a jury had retired to consider of their verdict, and afterwards came into court to hear explanations from a witness, who stated an additional and important fact, not before stated by him, but which fact the court immediately told the jury they were to disregard: Held, that the affidavit of a juror stating that he founded his verdict entirely upon this additional fact, will not authorise a new trial. The plaintiff in error was indicted in the circuit court of Bedford county for burglary and larceny. He was acquitted of the burglary, but convicted of the larceny. In addition to other testimony adduced upon the trial, the State offered in evidence the confessions or statements of the prisoner. Hezekiah Bennett stated, that he took the prisoner aside and told him that he had stolen the money; the prisoner denied it. Witness told him he had the money stolen, and it would be better for him to produce it, and witness also said to him, if he, (the prisoner) would tell witness which the money was, he would give him three dollars. The prner then said he would. He, the prisoner, then took wits and several other persons with him to a place in the woods, about half a mile from the prosecutor's house, and dug in the ground at the root of a tree, and took from thence the bank notes stolen. He then went with them to another place a little further on, and dug out of the ground the silver coin that had been stolen, and so soon as the money was found, the prisoner immediate ly ran off. NASHVILLE This evidence was permitted to go to the jury; December, 1836. but its admission was excepted to. After the jury had retired to consider of their verdict, they came into court, and requested to ask Mark Bennett (a witness in the case) some explanatory questions. He was called up; the court told him not to state any new fact, and after several questions were propounded to him, he was asked if he had o bserved any soot on defendant's clothes, (the larceny having been committed by getting down a chimney,) to which he answered he had. This fact had not been stated by him on his first examination. The court immediately told the jury "as the witness had not stated that fact on his original examination, the evidence was illegal." After the jury had rendered their verdict, the prisoner's counsel moved the court for a new trial, because of the reception of illegal testimony upon the trial, and also upon the affidavit of one of the jurors, who stated "that the cause of his bringing in a verdict against the prisoner, was the evidence made known on the re-examination of Mark Bennett, as to the soot found on prisoner's clothes the morning after the of fence was committed, and if it had not been for this fact, he never would have agreed to a verdict of guilty." E. H. Ewing, for the plaintiff in error. Geo. S. Yerger, Attorney General, for the State. TURLEY, J. delivered the opinion of the court. There are two questions presented for consideration in this case. 1. Whether the testimony given on the trial warrants the verdict. 2. Whether the affidavit of the juror states facts on which a new trial ought to have been granted by the court. As to the first, although the prisoner on being charged with the offence, denied his guilt; yet he afterwards pointed out two different places, at each of which, portions of the money stolen were found deposited. This could not have been done unless he had himself deposited it there, or knew who did. Hudson ་ The State. NASHVILLE. December, 1836. Hudson The State. The fair and legal presumption is, that he did it himself. It is barely possible, that his father (as has been argued) committed the offence, if he did, why did he bury the money and leave the neighborhood, without taking it with him? The principle of the law is well settled, that although confessions obtained by threats or promises are not evidence against a criminal, upon which he can be convicted; yet if they be attended by extraneous facts, which show that they are true, they will be sufficient. If property has been stolen, and a person accused with the offence, point out the place where it is concealed, he must be considered the thief, unless he can reconcile his knowledge with his innocence. As to the record, although it has been determined that the affidavits of jurors may be made the foundation of motions for new trials; yet it is a dangerous principle, and we are not disposed to extend it one step beyond what it has already been carried. In the case of The State v. Boobie, 4 Yer. R. 139, a new trial was granted on the affidavit of a juror, stating that he found his verdict on the statement of one of the jurors made after the jury had retired from the bar, and without which he would not have agreed to find the prisoner guilty. In this case the affidavit of the juror, states that he would not have returned a verdict of guilty, but for the fact that the prisoner had soot on his clothes the day after the offence was committed, which fact was not detailed by the witness on the trial, but was brought out the morning after, upon a re-examination of the witnesses in open court, by the jury. It is a rule of law well settled, that if a jury, after retiring to consider of their verdict, hear other testimony, it will form a ground for a new trial. When this testimony is given by one of the jury, it is next to an impossibility to show it but by an affidavit of a juror, and therefore the necessity of the case may justify this practice. But to establish the principle that jurors may file affidavits, showing upon what particular parts of testimony they may have found their verdict, with a view of granting new trials, if the court shall be of opinion, that the testimony thus made the basis of the verdict was not legal, and therefore ought not to have been received, would be casting obstacles in the way of criminal trials that would rendered it almost impossible ever to bring them to a conclusion. There is scarcely a trial in which some testimony is not heard, which upon strict examination might not have been excluded: perhaps there is no case in which witnesses have been re-examined by a jury, with the view of ascertaining with more certainty what had been previously sworn, where some new fact has not been proven; it is nearly impossible from the nature of things to prevent it. Where the testiníony, independent of the fact thus proven, is sufficient to warrant the verdict, to say, that a weak minded, timid juror, may by affidavit place his verdict on the illegal testimony thus received, and thereby be the cause of a new trial, would be opening a door to the escape of criminals, which would be productive of serious consequences to the country. In this case, the jury were informed immediately upon the reception of the testimony, that they were to pay no regard to it; where illegal testimony has been heard without objection, this is all that can be done, and all that the law requires. I apprehend no instance can be found, where a new trial has been granted because illegal testimony had been heard, the reception of which had not been objected to, and which the jury were instructed by the court not to regard. It is a presumption of law, that the jury will obey the legal instructions of the court, and we think that an affidavit of a juror ought not to be heard, showing that he had refused so to do. The judgment must therefore be affirmed.. Judgment affirmed. NASHVILLE. December, 1836. Hudson V The State. |