It has been held that a new trial should be granted for misconduct of the jury in consulting law books on the crime of rape during their deliberations. Proffatt, Jury Trials, 404; Merrill v. Nary, 10 Allen, 416; State v. Smith, 6 R. I. 33; Harrison v. Hance, 37 Mo. 185; Newkirk v. State, 27 Ind. 1; Burrows v. Unwin, 3 Car. & P. 310; Hartung v. People, 4 Park. Crim. Rep. 319, affirming 8 Abb. Pr. 132, 17 How. Pr. 85; Manuel v. People, 48 Barb. 548; Coffin v. Gephart, 18 Iowa, 256; Mitchell v. Carter, 14 Hun, 448; Taylor v. Betsford, 13 Johns. 487; Lott v. Macon, 2 Strobh. L. 178.

In a very recent case reported from the state of Washington, it was conceded that, while the rule that the separation of the jury in a criminal case prior to the receipt of its verdict by the court was a misconduct which would entitle the defendant to a new trial was a good one when made, and could not be disregarded at that time without greater danger of seriously prejudicing the substantial rights of the defendant, as then the jury could not render a written verdict in a criminal case, but must render it ore tenus, and that, under such a provision of law, if a jury were permitted to separate prior to the rendering of the verdict, they might be subjected to influences dangerous to society and subversive of the rights of the defendant. Anderson v. State, 2

Wash. 183.

Where the proof of drinking is clear and undisputed, and that it was done while the jury were actually deliberating upon their verdict, in a capital case, a verdict of conviction should not be allowed to stand. This rule is recommended by considerations far too obvious to require formal justification. See People v. Gray, 61 Cal. 164, 183, 44 Am. Rep. 549; Leighton v. Sargent, 31 N. H. 119, 34 Am. Dec. 324; Brant v. Fowler, 7 Cow. 562; People v. Douglass, 4 Cow. 26; Wilson v. Abrahams, 1 Hill, 207; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; State v. Baldy, 17 Iowa, 39; Ryan v. Harrow, 27 Iowa, 494, 1 Am. Rep. 302; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760; State v. Bullard, 16 N. H. 139; Pelham v. Page, 6 Ark. 535; Gregg v. McDaniel, 4 Harr. (Del.) 367.

In the case of People v. Douglass, supra, the court said: "It will not do to weigh and examine the quantity which may have been taken by the juror, nor the effect produced." And in Leighton v. Sargent: "For the cause that brandy was furnished

to the jury, and drunk by several of them, while deliberating upon the cause, after retiring to form their verdict, we think the verdict must be set aside. The quantity drank was probably small, but we cannot consent that that fact should make a difference."

So in State v. Baldy, 17 Iowa, 39: "The parties have a clear right to the cool, dispassionate and unbiased judgment of each juror, applied to the determination of the issues in the cause; and the use in any degree of that which stimulates the passions, and has a tendency to lessen the soundness of judgment, is itself conclusive evidence that the party who has the right to the exercise of that dispassionate judgment has been prejudiced in not having it, as perfect as it existed in the juror when accepted, applied to the determination of the cause. If this is true as a general rule, and as applicable to civil cases, a fortiori is the rule applicable in criminal cases, and especially in this case, in which the offense charged involves obedience to passions stimulated more than others by the use of spirituous liquors, and, of course, in its correct determination, requiring the most careful guarding against undue influence from them." People v. Lee Chuck, 78 Cal. 317.

After a careful examination of the subject, the general doctrine is announced as this: "A verdict will not be vacated, even in a capital case, on account of the misconduct or irregularity of the jury, unless it be such as might affect their impartiality or disqualify them from the proper exercise of their functions." Titus v. State, 49 N. J. L. 36.

§ 185. Evidence of Irregularity in the Composition of the Grand Jury. Chitty, in his work on Criminal Law, vol. 1, p. 307, says: "It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is intended that they must be liege subjects of the King, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned he may be challenged by the prisoner before the bill is presented or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel on producing in court the record of the outlawry, attainder, or conviction, on which the incompetence of the jurymen rests."

This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits if he should fail in sustaining his special plea; a precaution which probably would not be necessary in our practice. United States v. Gale, 109 U. S. 65, 27 L. ed. 857.

The method of selecting, drawing, summoning and impaneling a grand jury or a trial jury, is prescribed by statutory law. Wynehamer v. People, 13 N. Y. 427; Young v. State, 6 Ohio, 436; Cruger v. Hudson River R. Co. 12 N. Y. 199; People v. Duff, 65 How. Pr. 365; McQuillen v. State, 8 Smedes & M. 587. And any evidence tending to show the failure in the observance, the statutory recital is competent. The personnel of the grand jury must comply with the law in order to constitute a legal body; and any indictment found by a panel drawn in contravention of the law is a mere nullity. Clare v. State, 30 Md. 164; State v. Symonds, 36 Me. 128; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Chase v. State, 20 N. J. L. 218; Whitehead v. Com. 19 Gratt. 640; Rawls v. State, 8 Smedes & M. 599; McQuillen v. State, 8 Smedes & M. 599; Stokes v. State, 24 Miss. 621; Barney v. State, 12 Smedes & M. 68; Miller v. State, 33 Miss. 356; Doyle V. State, 17 Ohio, 222; State v. Williams, 5 Port. (Ala.) 130; Finley v. State, 61 Ala. 201; Scott v. State, 63 Ala. 59; Berry v. State, 63 Ala. 126; Couch v. State, 63 Ala. 163; State v. Conner, 5 Blackf. 325; Dutell v. State, 4 G. Greene, 125; State v. Jennings, 15 Rich. L. 42; State v. Pratt, 15 Rich. L. 47; State v. Bryce, 11 S. C. 342; Wilburn v. State, 21 Ark. 198; State v. Morgan, 20 La. Ann. 442; State v. Jacobs, 6 Tex. 99; Barton v. State, 12 Neb. 260; Green v. State, 59 Md. 123, 43 Am. Rep. 542.

In State v. Wood, 53 N. H. 484, Sargeant, Ch. J., states the weight of authority now to be, "that a grand juror may be compelled to testify when necessary to promote the cause of the justice, what the witnesses before the grand jury testify to, either to contradict such witnesses or otherwise."

In State v. Benner, 64 Me. 267, the court says: "But the oath of the grand juror does not prohibit his testifying what was

sworn before the grand jury, when the evidence is required for the purposes of public justice or the establishment of private rights. So in all cases when necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may be witnesses. Such seems the result of the most carefully considered decisions in this country."

In Burdick v. Hunt, 43 Ind. 381, it is said that "the oath of grand jurors does not prevent the public, or an individual, from proving by one of the jurors, in a court of justice, what passed before the grand jury."

is

In Jones v. Turpin, 6 Heisk. 181, it is said that "when these ends have been accomplished the entire purpose of secrecy effected, and if at a subsequent period it shall become necessary to the attainment of justice and the vindication of truth and right in a judicial tribunal that the conduct and testimony of prosecutors and witnesses shall be inquired into, there is no reason why it should not be done."

In Gordon v. Com. 92 Pa. 216, 37 Am. Rep. 672, it is said that "on no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights."

"When for the purposes of public justice, or for the protection of private rights, it becomes necessary, in a court of justice, to disclose the proceedings of the grand jury, the better authorities now hold that this may be done. It is obvious that there are certain transactions of the grand jury room which it can never be for the interests of justice to disclose; for example, what particular jurors concurred in or opposed the finding of the indictment, what opinions were expressed by various members of the body. In respect to such matters the injunction of secrecy may well be perpetual." Thomp. & M. Juries, § 703; Ex parte Sontag, 64 Cal. 525.

The question before the grand jury being whether a bill is to be found, the general rule is that they should hear no other evidence but that adduced by the prosecution. But it has been doubted whether, as they are sworn to "inquire," they may not, if the case of the prosecution appear imperfect, call for such wit

nesses as the evidence they have already heard indicates as necessary to make out the charge. Under such a suggestion, it would become the duty of the prosecuting officer to cause the requisite witnesses to be summoned; and it is his duty in any view to bring before the grand jury all competent witnesses to the res gesta. But it is not the usage to introduce, in matters of confession and avoidance, witnesses for the defense, unless their testimony becomes incidentally necessary to the prosecution. Whart. Crim. Pl. & Pr. (8th ed.) § 360, citing 2 Hawk. P. C. chap. 25, § 145; 2 Hale, P. C. 257; 4 Bl. Com. 303; United States v. Palmer, 2 Cranch, C. C. 11; United States v. Lawrence, 4 Cranch, C. C. 518; 1 Chitty, Crim. Law, 318; Dickinson, Quarter Sessions, 174, 175; Cox v. Coleridge, 1 Barn. & C. 37, 51; Reg. v. Borron, 3 Barn. & A. 432; Re Crowe, 1 Chitty, 214; Duty of Grand Jury, Addison's Charges (Pa.) 42; United States v. White, 2 Wash. C. C. 29; United States v. Blodgett, 35 Ga. 336; Respublica v. Shaf fer, 1 U. S. 1 Dall. 236, 1 L. ed. 115.

ons.

186. Evidence of the Record on Appeal.

a. Rules in Admitting and Excluding Evidence. Where a point upon which evidence is excluded is conceded by an admission made during the trial, or by an admission in the pleadings as well as where it is established by uncontradicted evidence, error in excluding additional evidence is generally said to be harmless, although it would, perhaps, be more accurate to say there is no error. Permitting the introduction of evidence that is clearly immaterial is, as a general rule, harmless even if erroneBut this rule is one to be applied with some care, since it is not always possible for the appellate tribunal to ascertain what effect apparently immaterial evidence may have had upon a jury. It is, at all events, not safe to apply the rule strictly or too generally. Where it affirmatively appears or where it may be fairly inferred that in the particular case the erroneous admission of the evidence could not have influenced the verdict, the error is always to be regarded as harmless. As evidence seemingly immaterial may sometimes arouse prejudice, create undue passion, to carry the jury to collateral issues, it must be true that there are cases forming exceptions to the settled general rule. Where objection is made, but no evidence is introduced, the error in overruling the objection is rendered harmless for the reason that the ruling