read, denied that he drank whiskey while out, but did not say whether he drank any other spiritous liquor. He deposed that he did not converse on the subject of the trial, nor did he believe that Lamb conversed on that subject, in whose company he continued the whole time of their being out, except that he left Lamb standing at the front door of the gaol, on his return, advanced 5 or 6 rods before him, turned and called to him, when he then immediately followed. He also stated circumstances which strongly negatived the charge that Lamb had drank any spiritous liquor, while out. The Attorney General read several affidavits, with a view to impeach the credibility of the persons who deposed to the facts of drinking and conversing, which were the only ones in dispute. But it is not necessary with a view to the points raised and decided, to state the evidence further; except that the two jurors implicated were fully proved to be men of very fair characters, and in no wise affected by any spiritous liquor which they might have drank; and there was one of the witnesses (Wheeler) who swore that he saw these two jurors drink some kind of spiritous liquor, as he thought, while out. His veracity it was not attempted to impeach. No affidavit had been procured from Lamb, by reason that since the trial he had become insane in his mind.

Z. A. Leland, for the prisoner, now moved for a new trial. He insisted, 1st, that the act of separation, in the two jurors, from their fellows, and going out from the control of the officers, contrary to the instructions of the Court, was of itself, a sufficient ground for setting aside the verdict. It is true, that this Court have denied this in civil cases. Smith v. Thompson, 1 Cowen's Rep. 221. Horton v. Horton, 2 Cowen's Rep. 589. Ex parte Hill, 3 Cowen's Rep. 553.) But even in civil cases it is otherwise, if there be the slightest suspicion that the separation has been abused to the injury of the party moving. (Horton v. Horton, 2 Cowen's Rep. 589.) In capital cases, however, and trials for felony, the jury have never been allowed to depart from the care and control of the officer who has the charge of them, till they have agreed upon and pronounced their verdict; and if they

ALBANY,

Feb. 1825.

The People

V.

Douglass.

violate their duty in this respect, it is not merely a contempt of the Court, but also cause for setting aside the verdict. This was holden in the Commonwealth v. M'Caul, (Virginia cases, 271) stated at large in the Reporter's note to Smith v. Thompson, (1 Cowen's Rep. 235 to 237.) The distinction was there supported by great strength of reasoning, both by the counsel and the court. Mr. Wirt, for the prisoner defied the Attorney General to produce a single case of life and death, in which a verdict was allowed to stand after a separation of the jury; and none was produced. Nelson, J. confines the right of separation to a case of inevitable necessity. The King v. Wolf, (1 Chit. Rep. 401) also stated at large in 1 Cowen's Rep. 227 to 232 note, will probably be relied on; but that was a case of a misdemeanor, and the Judges proceeded upon this distinction. They also rely that no provision was made in England to refresh the jury at the public expense, and it is, therefore, necessary that they should separate and refresh themselves at their own expense. It is otherwise here. They are uniformly supplied with refreshments by the Sheriff, who may charge the county, and have his claim audited and allowed by the board of Supervisors, as one of the reasonable contingent charges of the county. He also cited Wood v. Hart, (3 Caines' Rep. 96) Dana v. Roberts, (1 Root's Rep. 134) and Orcutt v. Carpenter, (1 Tyler's Vermont Rept. 252.)

[SAVAGE, Ch. J. Tyler's Reports are not considered good authority even in his own state.]

Leland also cited Tweedy v. Brush, (Kirby's Rep. 13) Thompson v. Mallet, (2 Bay's Rep. 94) and Shepherd v. Baylor, (2 South Rep. 827.) In The People v. M'Kay, (18 John. 218.) Spencer, Ch. J. mentions the case of a new trial being granted merely because the jury had separated after finding a defendant guilty of murder.

The counsel then examined the weight of evidence as to the two jurors having drank spiritous liquor, and conversed on the subject of the trial, and insisted, that even if this were a civil case, the verdict should be set aside.

Feb. 1825.

V.

Talcott, (Attorney General) contra, would, in the first ALBANY, place, refer the Court to a few authorities, in addition to those collected by Cowen, in the note to Smith v. Thompson. The People. These were State v. Carstaphen, (2 Hayw. 238) Clark v. Douglass Cole, (1 Penn. Rep. 278) Butts v. Drake, (2 Hayw. 102) Crane v. Sayre, (1 Halst. Rep. 110) Goodright v. M'Causland et al. (1 Yeates' Rep. 372) Duke of Richmond v. Wise, (1 Ventr. 125) Jenk. 4 Cent. 187, Case 84. Only one of these, he said, was a criminal case-that of State v. Carstaphen, in 2 Haywood, which was perjury. He also cited Dy. 218, a.; Co. Litt. 227, b.; King v. Burdett, (12 Mod. 111) 2 Salk. 645, S. C.; 1 Ld. Raym. 148, S. C.; Br. Verdict, pl. 19. That the rule is the same in both civil and criminal cases, he relied on 1 Chit. C. L. 655, 648, 529, and 1 H. P. C. 306.

The State v. Babcock, (1 Con. Rep. 401) was a case of murder; yet a separation of the jury was held no cause for setting aside the verdict. It is the settled law of that state, that the jury may disperse and assemble at pleasure, under the direction of the Court, both while the trial is pending, and after cause is submitted. And in The King v. Wolf et al., relied on by the counsel for the prisoner, Best, J. thinks the same latitude is allowable, both in civil and criminal cases. His opinion will be found in the note, (1 Cowen's Rep. 231) where he puts the case of a capital felony, and makes the separation of the jury depend upon the same rule as a civil cause. He felt himself governed by no such distinction as is contended for on the other side. It is said, that in the Commonwealth v. M'Caul, Mr. Wirt challenged the production of a single case of life and death, in which the separation of the jury had not been held cause for setting the verdict aside. The answer is, that the counsel for the Commonwealth challenged Mr. Wirt to produce a single case where the distinction had been made. Both challenges remained equally unanswered. As to the case stated arguendo by the late Chief Justice, in 18 John. 218, it does not appear how long the jury had continued separate, nor what abuses might have been committed. That case was cited in reference to the question involved in the prin

v.

Douglass.

ALBANY, cipal case, which was, whether a new trial could be awardFeb. 1825. ed for a capital felony, where the judgment had been arrestThe People ed. No case can be found at this day supporting the distinction set up. The Commonwealth v. M'Caul finally proceeded upon principles applicable to all cases of jury trials. Why should there be any distinction? What is the object of empannelling a jury? To speak the truth between the people and the prisoner, the parties in the cause, the same as in other cases. It was once thought, that comparison of hand writing was admissible evidence in civil, though not in criminal cases; but the moment it was brought to the test of principle, the distinction vanished. Truth is always the same, and the principles of justice are immutable and eternal. If the verdict be fair and impartial, why not sustain it in all cases? Shall a verdict, good in the case of a misdemeanor upon the ground that it is fair and impartial, be set aside, when the same ground exists, because it was rendered on an indictment for a felony? Or will gentlemen say that you may condemn in case of a misdemeanor, though the verdict be tainted with influence or corruption? If not, there is nothing in the distinction sought to be maintained.

The Attorney General examined the facts, and insisted, that all abuse in drinking spiritous liquor, and conversing on the subject of the trial, were disproved.

room.

J. C. Spencer, in reply, also examined the evidence, which, he insisted, showed abuse, in conversing and drinking spirituous liquor. At any rate, he said, it is plain that the two jurors not only ate, but took cakes with them to the jury This enabled them, if perverse enough, to hold out and overpower their fellows. What use is there in the oath. of the constable or bailiff, to keep the jury without meat or drink, if a part are allowed to stuff their pockets with food, and thus fortify themselves, and weary and exhaust their fellows? The Commonwealth v. M'Caul was a case of simple separation, yet the Court set aside the verdict, from the danger of collusion and tampering. The language of Nelson, J. who delivered the opinion of the Court, is very emphatic and directly applicable to this case. He said, "from

Feb. 1825.

The People

V.

Douglass.

the mode in which collusion and tampering are generally ALBANY, carried on, such circumstance is generally known to no person, except the one tampering and the person tampered with, or the persons between whom a conversation may be held, which might influence the verdict. If you question either of these persons on the subject, he must criminate, or declare himself innocent, and you lay before him an inducement not to give correct testimony. The old rule was, that the jury, on no occasion should separate. I mentioned, (though it is with difficulty that the rule has been at all relaxed) that it is relaxed only in cases of imperious, or per. haps unavoidable necessity. But by allowing that a jury may separate without necessity, and that their verdict shall stand, unless the party accused, who, in these cases, is in the custody of the law, can shew that the jury not only have separated, but that they, or a member of it, has also been tampered with, or held communication on the subject; this great barrier against oppression may gradually be sapped and undermined, and the bulwark cannot long remain. Such a precedent would be productive of evils incalculable, and too great for the Court, by its decision, to allow a door to be opened for them. Every danger, and particularly in such a case as this, should be watched and opposed in the beginning. The Court will preserve, with fear and jealousy,' and will not expose the trial by jury, in criminal cases, to such risk of contamination as arises from the affidavits in this case. If the Court hath, without necessity, suffered a juryman to go home without an officer, (which it would never do) it would vitiate the verdict. There is as much danger from a juryman's separating without the act of the Court as if it had been by done by such act. Although there might be, and probably was no tampering with any juryman in this case, yet, in a free country, in deciding a particular cause, the decision is to be according to general principles, as applied to that case: and more good will arise from persevering in the sacred principle involved in this case, than evil from granting a new trial, although, in this individual instance, a verdict has been given by 13 men, in fact unbiassed by the separation." (Vid. Cowen's Rep. 237, note.)