State v. . Jenkins , 116 N.C. 972 ( 1895 )

The question for determination is, do the findings of his Honor show such misconduct on the part of the jury as to vitiate the verdict, and to make it in law no verdict? For otherwise (974) the verdict would simply be erroneous, and, therefore, under the final control of the judge below as to his discretion in granting or refusing a new trial. The answer to the question depends most largely upon the proper construction of the words, "Nearly all of them drank of this whiskey, some of them under its influence." We think the fair, reasonable and natural meaning of these words is that some of the jurors were under the controlling power, sway and ascendancy of the whiskey which they drank. This being so, they were in a condition which unfitted them to discuss evidence, and to properly consider its weight and the effect of their conclusions. They were, on this account, not good and lawful men, as the law required them to be, and therefore their verdict was null. There was a mistrial. There is no room for the inference that these jurors might have been under the influence of strong drink on the night before they delivered their verdict on the next morning at ten o'clock, and have been sober at and before that hour. The findings of fact show that other whiskey was passed through a window to the jury on that very morning. The law requires that jurors, while in the discharge of their duties, shall be temperate and in such condition of mind as to enable them to discharge those duties honestly, intelligently and free from the influence and dominion of strong drink. No prudent man would be willing to have the facts of his case passed upon by a jury some of whom were under the influence of whiskey. Our reports contain no case in which the facts found on motions for new trials for misconduct of jurors are the same, in words or substance, as in this case, and we do not, by this decision, overrule or modify any opinion heretofore rendered by this Court in matters of this nature. In some of the states of the American Union, drinking in any degree by any of the jurors in the progress of a trial vitiates the verdict. This is not the rule in North Carolina. In S. v. Sparrow, 7 N.C. 487, the Court (975) held unanimously, "that it had been settled rightly that taking refreshments vitiates the verdict only in those cases where they are furnished by the party for whom the verdict is found." In S. v. Bailey,100 N.C. 528, the Court found, as a fact, upon motion for a new trial by defendant, "that after the retirement of the jury, one of their number took a flask from his pocket and, upon his invitation, four drank of the whiskey it contained. None of the jurors were in any degree under the influence of the liquor, nor was the quantity taken sufficient to produce any sensible effects," and overruled the motion, in which ruling this Court declared there was no error. In S. v. Miller, 18 N.C. 500, the prisoner offered to prove, after motion for a new trial on other grounds had been made and denied, that while a juror was absent from the body of the jury, he visited the store of W. J. L. to get a drink of spirits, which store stands at the distance of one hundred and twenty yards from the courthouse and in view of it. The judge refused to receive this evidence, but this Court, on appeal, discussed the point though sustaining the ruling of his Honor, and held that the matters attempted to be proved, if true, did not entitle the defendant to a new trial. Chief Justice Ruffin, who delivered the opinion in Miller's case, said, however, "But in the present case there is no suggestion that he (the juror) drank to the slightest degree of intoxication." He said further: "I do not dispute that if a juror drank to excess so as to disqualify him for his office, it is not only a misdemeanor, but it ought to vitiate the verdict. I will not deny that such a case appearing in the record could be acted on by a court of errors."

As we have already said, we have no reported case in which the use of strong drink, to the extent found in this one, has been made to appear. All the cases reported on this subject are easily to (976) be distinguished from this.

We are of the opinion that his Honor erred in refusing the motion for a new trial, and that there was a mistrial on account of disqualification of the jury because some of them were under the influence of whiskey while they were engaged in making up their verdict. The defendant is therefore entitled to a

New Trial.

Cited: S. v. Tyson, 138 N.C. 629.