Moss v. Commonwealth , 4 Pennyp. 509 ( 1884 )

Chief Justice Mercur

delivered the opinion of the court, October 20th, 1884.

The verdict of the jury has removed the higher grade of crime, and reduced the case to one of manslaughter. If the conviction had been of a capital offence, the observance of a more stringent rule would be required. The case of G-oersen v. Commonwealth, decided at the present term (10 Out. 477), was a conviction of murder in the first degree. The sickness of a juror had caused his separation for medical treatment. The commonwealth there assumed, and we held correctly, the obligation of showing affirmatively that no improper influence operated on the mind of the juror during his separation. In case of a conviction of a capital offence the fact of separation further than is necessarily required to enable the jurors to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence, which the commonwealth must rebut or remove by clear and satisfactory evidence. In the present case, we think it would have been well on the return of the juror to have inquired of him, and of the officer in charge, whether anything was said or done in the presence of the juror tending to influence his action in the case. As, however, there is no evidence nor averment of any such influence, we cannot hold the mere separation of the juror in the custody of a sworn officer, and by the permission of the court, is such an act as to call for a reversal of the judgment.

The strictness of the early English rule in excluding jurors from all outside intercourse, in cases not capital, is very much relaxed in this country. In view of the verdict, and for the purpose we are now considering, we think the same rule should be applied as if the prisoner had been indicted and tried for manslaughter only. In such a case jurors may, in the discretion of the court, be permitted to separate after being duly cautioned, without the creation of any legal presumption that undue influence thereby operated on their minds. Whatever is necessary to preserve the purity of trial by jury must be adhered to, and strictly observed. Whatever is not necessary to secure a fair and impartial trial must not be so magnified as to defeat the ends of justice. As we do not consider this to be a capital case, but one of the grade for which the prisoner was convicted, we deem it unnecessary to refer to the authorities cited. We merely say they are not applicable to this case, which is for a lesser crime.

Judgment affirmed.