State v. Lamoreaux ( 1932 )

The only question involved in this case is — was it error for the court, under the particular circumstances of this case, to permit the jury to separate after the case was submitted to them and before the verdict was returned?

The case was submitted to the jury at 5:45 P.M. on November 20, 1930. On account of a storm raging, the trial court in consideration of the interests of the jurors, desired to permit the jury to separate so as to go home and look after affairs. But before this, however, in the absence of the jury, he consulted with Mr. Butterwick then counsel for the defendant as to his intention and there being no objection voiced by the counsel for the defendant he had the jury brought into court. The defendant, in his affidavit says:

"That the defendant after the court had instructed the jury visited with his wife in the court room for a few minutes and then . . . started down town and he had gotten to the first stair landing out of the court room and stood there visiting . . . for a short time and while so doing his daughter called to him that the jury had returned into court and were through. That thereupon he went upstairs and entered the court room; that the judge was releasing the jury then and he did not at that time know what had been done and he had not been advised by his attorney of what had been done prior to it and did not know till the jury was released what had been done. He did not give his consent to the discharge of the jury in this manner nor did he know that they were discharged by the court at the time he entered the court room as it was too late for him to sense what was going on before the jury was discharged in this manner. If his attorney made an assent to this it was without the knowledge or consent of the defendant and that he gave him no authority to waive any of his legal rights in the premises if he had any."

Defendant's counsel was present, listened to the statements of the court permitting the jury to separate, and to the instructions the court gave to the jury regarding their duty not to consider the case until they met for deliberation. Neither the defendant nor his counsel raised any objection to the separation — in fact it is clear the separation was with the tacit approval of the defendant's counsel, and therefore of the defendant.

As early as 1891 this court discussed the effect of tacit consent by party and consent through counsel. In Boss v. Northern P.R. Co.2 N.D. 128, 141, 33 Am. St. Rep. 756, 49 N.W. 655, the general principle is announced that "when counsel so sit by without objection, they must be held to waive the error." Of course this is dealing with the question of instructions, but it is discussing the general effect of waiver and says that "such a course is not fair to the court."

The defendant was being tried for a misdemeanor. He could waive his right to be present at the trial (Comp. Laws, § 10,771); he could waive his right to a trial by jury (Comp. Laws, § 8966); and certainly he could waive his right to the jury being kept together.

In State v. Glass, 29 N.D. 620, 638, 151 N.W. 229, where the defendant was being tried for murder, is found a long list of conditions and situations where we held "the doctrine of waiver and estoppel applies to a defendant in a criminal case." Among these such a vital matter as the right to be confronted by the witnesses against him is cited as being subject to waiver. The case is of interest because it shows the trend away from the strict technical rules of old suggested by change in conditions.

It will be noted this separation was not a case of "misconduct on the part of the jury;" but was with the consent of the defendant and under the direction of the court. If a separation of jurors without the consent of the court, and in violation of the instructions of the court, does not in all cases vitiate a verdict then why should a separation permitted by the court with the consent of the defendant and in a case of a misdemeanor vitiate the verdict? In the case of State v. Thompson, 56 N.D. 716, 219 N.W. 218, it was held the defendant by his own action could waive his statutory right to be present when the verdict was received. In State v. Zimmerman, 60 N.D. 236, 233 N.W. 845, 79 A.L.R. 816, where the defendant was being charged with a felony, it was held that a temporary separation of a juror, although in violation of the instructions of the court did not vitiate the verdict when no prejudice was shown.

A new trial can not be granted except on the grounds set forth in the statute. Comp. Laws, § 10,917. These statutory grounds are exclusive in their nature. State v. Hagen, 54 N.D. 136,208 N.W. 947. Subdivision 3 of said section says: "When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented." But misconduct does not apply here, because this action involved was not misconduct of the jury. It was not in violation of any instruction or direction of the court, but was in harmony therewith. It may be said that if we consider the statement which says "when the jury have separated without the leave of the court, after retiring to deliberate upon their verdict," this must be considered in the light of the other sections which require the jury to be kept together until a verdict is rendered or until they are discharged, but it is clear there is nothing in what the jury did of its own volition, which justifies a new trial.

Subdivision 5 says a new trial may be granted when the court "has done or allowed any act in the action prejudicial to the substantial rights of the defendant." If there be error here it was error on the part of the court; but such error must be prejudicial to the defendant's substantial rights. The record affirmatively shows there was no prejudice to his substantial rights.

On this appeal the appellant, in his specifications of error, nowhere specifies that the evidence is not sufficient to justify the verdict. It is true one specification says "The court erred in refusing to grant the defendant herein a new trial as prayed for in a motion for a new trial." But the specification of error thereafter, in setting forth wherein the court erred, nowhere specifies the insufficiency of the evidence, though the motion for a new trial as made in the lower court did say "the verdict is contrary to law and clearly against the evidence." But the verdict is not against the evidence, as an examination of the evidence shows.

We must recall the consent of the defendant, through his counsel, was not obtained in the presence of the jury. It might be that the refusal of a defendant to consent to a separation, made in the presence of the jury and on such an occasion as this, where the jurors were anxious to get home to attend to their stock, might raise the question of prejudice against him if he had refused; but that is not the situation here. His consent through his counsel, by failing to object and by his tacit approval, was made in the absence of the jury and the jury when brought in must have known the defendant consented, and therefore if it had any effect would be likely to make a favorable impression for him.

No prejudice is shown here. Every one of the jurors swears that they had not begun to deliberate or consider the case when they were recalled to the court room and discharged. Each one swears that he did not talk with any one or discuss the matter with any one while separate from the others. It is true there are affidavits from two outsiders stating they heard some references to the case — its triviality and its expense — on the part of some of the jurors while in custody of the bailiff. But this is contradicted by the jurors and by two others. Clearly it affirmatively shows no prejudice resulted.

The majority opinion cites the case of State v. Church, 7 S.D. 289, 64 N.W. 152, but the case is not in point. Here was a separation without the consent of the court, without the consent of the defendant, and against the instructions of the court. And such separation, occasioned by a fire, was of such a character that the court said "in the absence of anything to the contrary, we cannot presume that no member of the jury, while out of sight of the sworn officer, separated from his fellows, and mingled with the jostling throng, was subjected to contaminating influences; . . ." Such case is not applicable.

The majority opinion cites the case of People v. Hawley,111 Cal. 78, 43 P. 404. This case is not applicable because it was a case involving a felony, burglary in the second degree, and the case itself shows that the court is considering the effect of separation by permission of the court in the trial of a felony. The quotation in the main opinion bears this out. The case of Cantwell v. State, 18 Ohio St. 477, cited in the opinion involved a felony. The other cases cited in support of the statement from the Ohio court deal also with separation in cases of felony.

To say that the separation of the jury by direction of the court and with the tacit approval of defendant's counsel, in a case which ordinarily could be tried by a justice of the peace, or a justice and one juror, where the evidence shows defendant guilty and where it affirmatively appears there was no prejudice to him, necessitates a new trial, is certainly overlooking the principle involved in § 11,013 of the Comp. Laws which says: "After hearing the appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties."

The judgment should be affirmed. I am authorized to say Judge CHRISTIANSON concurs in this dissent.