State v. Church ( 1895 )

Fuller, J.

Plaintiff in error was tried and convicted of the crime of selling intoxicating liquors in violation of tbe statute, and tbe case which is now before us on rehearing is reported in 60 N. W. 143. Tbe legal effect of a separation of tbe jury after their retirement for deliberation, and before a verdict was returned, is tbe only point that will receive any further attention, and the facts essential to an understanding and determination thereof are substantially as follows: After tbe jury bad retired and entered upon a deliberation of tbe case, under tbe instructions of tbe court, the bailiff was by tbe court directed to take tbe members thereof in a body to a restaurant for dinner; that one of tbe jurors while returning from dinner to tbe jury room with the bailiff and bis fellow jurors, and without separating from either, stopped on the way at bis own place of business, and gave some attention to a personal business matter in no way connected with tbe suit; and afterwards, while 11 of tbe jurymen so accompanied by tbe bailiff were waiting outside tbe building, tbe same juror went into a certain place of business and ordered a bill of merchandise to be sent to his place of residence. It also appears that, while on tbe way from dinner to tbe jury room, another member of tbe jury stepped into a grocery store and purchased a package of tobacco, while bis fellow jurors and tbe bailiff remained on tbe street at the front door of said place of business. Concerning tbe whereabouts, of tbe bailiff and other members of tbe jury while these men were in tbe stores, tbe evidence used, on tbe motion for a new trial, is somewhat conflicting; but, as tbe view we shall take of a subsequent separation of tbe jury is decisive of the appeal, and involves no question of veracity, no further attention will be paid to tbe irregularities above mentioned. Shortly after tbe jury bad returned from, dinner and resumed their deliberations in one of the apartments of the court house, adjacent to the room in which court was then in session, it was discovered that the court house was on fire; and, from the undisputed evidence of the bailiff (who, by-reason of his position, is an interested witness), it appears that, pursuant to a direction of the court to take the jury out of the court house and keep them together as much as possible, until the fire was extinguished, he took them into the court house yard, which was filled with people, and for about five minutes they were not in his immediate vicinity, but were mixed up in a promiscuous crowd of excited people, who had been drawn to the place by reason of the fire. Under section 7399 of the Compiled Laws, it is within the discretion of the trial court, under the required admonition, to allow the jury in a criminal prosecution to separate at any time before the case is submitted to them, or he may require the jury to be kept in charge of officers, who “must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves on any subject connected with the trial, and to return them into court at the next meeting thereof”; but we know of no statutory provision which authorizes a court to permit a jury to which a criminal cause has been finally submitted to separate, after they have retired for deliberation to the seclusion of a jury room. If, from any cause or accident, a jury in a criminal case is prevented from being kept together after a final submission of the same, the jury may, under sections 7413 and 7415, be discharged and the cause may be again, tried at the same or at another term as the court may direct; and, in express terms, the separation of a jury without leave of court, after retiring to deliberate upon the verdict, is made a ground for a new trial, under section 7450; and our attention has been called to no statutory provision nor judicial determination imposing the burden upon the accused to show that he has been injured by reason of such separation after a final submission of the case. If one separation of a jury on account of fire for five minutes without leave of the court in a criminal prosecution, after retiring to their room for deliberation, is not an irregularity presumptively prejudicial to tbe accused, how often, for what length of time, and under what circumstances, may they not separate? We believe the true and only safe rule to be that, where the separation is such that one or more of the jurors might have 'been improperly influenced by others, and there is nothing-reliable to show that such influnce has not been exercised to the prejudice of the accused, the verdict shall be vacated, and the case be retried.

It will be seen, from the sections above cited, that our legislature has avoided uncertainty and confusion by enacting a law unlike the statutes of many of the states, because it makes no distinction, in the application of the rule, between misdemeanors and cases of felony. As the case under consideration does not require us to determine whether any separation of a jury in violation of the statute vitiates the verdict, as a matter of law, regardless of circumstances, and that the presumption of contamination occasioned by such impropriety and irregularity cannot be rebutted by the affidavits of the jurors themselves, we cite without comment the following cases, some of which seem to go to that extent: People v. Backus, 5, Cal. 275; Cantwell v. State, 18 Ohio St. 477; State v. Harris, 12 Nev. 114; Jumpertz v. People, 21 Ill. 374; State v. Parrant, 16 Minn. 178 (Gil. 157); Com. v. Roby, 12 Pick. 496; State v. Garig (La.) 8 South. 934; State v. Harrison (W. Va.) 15 S. E. 982; Keenan v. State, 8 Wis. 132; State v. Cucuel, 31 N. J. Law, 249; State v. Prescott, 7. N. H. 287. Mr. Abbott, in his Trial Brief for Criminal Causes, at page 180, announces the following as a general rule: “In the discretion of the court, the jury may be permitted to separate, in the intervals of the trial, until the case is finally committed to them, but not thereafter until they have returned their verdict.” It is a matter of common knowledge that contrariety of motives prompt the best, as well as the worst, members of society to visit the scene of a threatened com flagration; and, under the circumstances of this case, 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 Ms fellows, and mingled with the jostling throng, was subjected to contaminating influences; and we therefore dis-affirm our former decision, reverse the judgment, and order a new trial.