Hancock v. Winans , 20 Tex. 320 ( 1857 )

Wheeler, J.

Agreements of counsel respecting the conduct of causes in Court are not to be viewed in the light of contracts, which the Court is bound to enforce. They are rather to be treated as affording the rule of practice, in so far, in the particular case. But as matter of practice, they are not absolutely obligatory upon the Court; but may be set aside, or disregarded when to enforce them would work inconvenience or injustice. Under the rules of the Court (Rule 19th) such agreements of counsel are not enforced when not in writing, because of the inconvenience which would result from differences or disputes as to the terms of the agreement. When in writing the Court will enforce them, unless there be good cause for declining to do so; and of the sufficiency of the cause the Court in which the agreement is sought to be enforced, as the rule of practice in the case, must be the judge. An agreement of counsel which would work an inconvenience, as to take up causes out of their regular order, the Court would not enforce. These matters of practice the Court must have the power to control according to its own sense of justice and propriety, irrespective of the agreements of counsel : and its rulings upon such questions, will not, in general, be the subject of revision. The application to set aside the agreement in this case addressed itself to the discretion of the Court, to be exercised, of course, with a due regard to the rights of the parties litigant; and this Court cannot undertake to control its exercise, unless it were apparent that it operated to the prejudice of some right of the appellant. And this brings us to consider whether the continuance asked was improperly refused.

It is insisted that the setting aside of the agreement operated a surprise upon the defendant, and that on that ground a continuance should have been granted. But the continuance was asked to obtain time to make up the pleadings and prepare the defence. This was answered by the offer of the plaintiff’s attorney to proceed to trial upon the answer, which, it seems, had been intended to apply to this case, to be prepared for the case afterwards. This the Court might well deem reasonably to have answered the purpose for which the continuance was sought; and that having been done, there was no error in refusing a continuance.

It cannot be doubted that the verdict'was fully warranted by the evidence, under the charge of the Court—which was not unfavorable to the defendant—if the plaintiff’s witnesses were to be believed. And that was a question exclusively for the jury. They were the judges of the credibility of the witnesses, and the weight of evidence. There is no case in which this Court has undertaken to control the verdict of a jury upon such a question.

The remaining objection to the judgment, which relates to the polling of the jury, presents, as it seems to us, the only question of difficulty in the case. Whether it is the right of a party to have the jury polled, in order to render it certain that they are all agreed to the verdict, has not been determined by this Court; and the authorities are not agreed on the question. The practice of polling the jury obtains in England and probably in most of the States, at least in criminal cases. But whether it is as a matter of right to the party, or discretion with the Court, is not so clear. The question was examined by Chief Justice Shaw in The Commonwealth v. Roley (12 Pick. 496, 512,) and while the Court admitted the existence of the practice in England and Uew York, it was said to be a question of some difficulty to determine how far it was a matter of right to the party, or discretion with the Court. The Court in that case held that it was not the right of the prisoner to have the jury polled; but they rested their opinion mainly on the consideration that the practice had not obtained in that State. The Courts of several of the States deny the right, and do not admit the practice, even in criminal cases; (4 Pick. 239; 5 Greenl. 333; 3 Foster, 507; 4 Id. 437;) while in others, and, it is believed, in most of the States, the practice obtains; (1 McCord, 525; 1 Wend. 91; 3 Cowen, 23; 11 Ohio, 472;) and I apprehend it is there generally recognized ■as a matter of right. It is believed to have been generally so treated in practice in this State, at least in criminal cases, although the point has not been authoritatively determined.

Admitting the right in general, the question here is whether, where the parties have consented that the jury, when they shall have agreed upon their verdict, may return it sealed to the Clerk in the recess of the Court, and disperse, and they afterwards come into Court to have their verdict published, it is the right of a party to have them polled to ascertain, not whether it was their verdict when sealed and returned to the Clerk, but whether they are still of the same mind. This, it is conceived, is a very different question from that of the right to poll the jury where their verdict is returned by them into Court without their having been permitted to disperse.

The practice of returning a sealed verdict is comparatively modern. Formerly the jury were not permitted to separate until their verdict was returned into Court, and in order to enforce unanimity they were deprived, for the time, of the necessaries of life. But this severity has been relaxed, and has given place, in modern times, to a more enlightened reason; and the relaxation has been found to promote convenience in practice, without prejudice to individual security or public justice. When the jury return their verdict into Court before separating, no abuse can arise from permitting them to be polled in order to render it certain that there is, in truth, entire unanimity; and if, when the verdict is so returned, any of the jury dissent, all the authorities agree that it cannot be received, but the jury will be sent back to consider further of their verdict. But where, by consent of parties, they are permitted to return a sealed verdict to the Clerk during the recess of the Court, and then separate and mingle with the rest of the community, to permit them to be afterwards polled, to answer whether they are still agreed, after having heard the opinions of others and been subjected to improper influences, would be to render the sealed verdict as unsafe and insecure as the ancient privy verdict; which Blackstone says “ is of no force, unless affirmed by a public verdict given openly in Court; wherein the jury may, if they please, vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged.” (3 Bl. Com. 377.) The sealed verdict is held by modern authorities not to be liable to the objections which existed to the privy verdict. It is not, it is said, like that, a “mere nullity;” but affords to the accused all the security that justice requires, and fully preserves all his rights. (3 Gr. & W. on New Trials, 1410.) In Courts where the practice of permitting the jury to be polled obtains, when the jury seal their verdict and then separate, and afterwards, when the Court convenes, return it into Court, “the verdict thus returned, (it is said,) has the same effect, and must be treated in the same manner as if returned in open Court, before any separation of the jury had taken place. But if, after having once agreed, and put their verdict under seal, a jury shall separate, and subsequently meet in their room and change this sealed verdict, such altered verdict could not, with any propriety, lay the foundation of a judgment. Such conduct in a jury would constitute that degree of misbehavior for which a verdict ought to be set aside.” (2 Id. 550-551; 8 Ohio, 408.) The practice of polling the jury in the case of a sealed verdict in the manner contended for in this case, would be to sanction just such misbehavior in the jury. But if the verdict, as this authority says, is to have the same effect, and is to be treated in the same manner as if returned in open Court, before any separation of the jury had taken, place, and the parties are restricted to the inquiry whether it. was their verdict when sealed and returned, the practice will be freed from.the liability to abuse; and it may be truly said the verdict thus returned will afford parties all the security that, justice requires, and fully preserve all their rights.

The sealed verdicts treated of by the authorities generally, are not in .cases like the present, where, by authority of the Court and. consent of parties, the jury have-returned their verdict sealed to the Clerk.of the Court. They are where the jury having sealed their verdict in their room, afterwards come into Court and vary its terms; and then, it is said, the latter is the true verdict;, (10 Bac. Ab. Tit. “Verdict” (F);) or where, after having thus -sealed their verdict, without the permission of the Court or. consent of .parties, they disperse, and afterwards reassemble and change it.; and then, it is said, as we have seen, that such altered verdict will not be received. (8 Ohio, 408.) But where .the parties have consented that the jury might return their verdict. sealed to the Clerk, we think -they must be deemed impliedly to have consented that.the verdict so returned, if in truth agreed to by all the jurors at the time, should be received without further question, or, the reservation to the jury of the right to change it after having dispersed- with their consent, and heard the out-ohdoors opinions of the parties and their friends. Such a practice would manifestly lead to abuses; and the consequence would be that there would be no safety in permitting or consenting to such verdicts, and though a very convenient practice, it would become too dangerous to be tolerated. Indeed it would be better not to allow the practice, at.all, than to permit it with the reservation of the right claimed in this case. In Nichols v. The S. Man. Co. (4 Foster, 439) it was said “ The permission to the jury to seal up their verdict and separate before their verdict is returned into Court, is given here only by consent of parties. Such consent operates as a waiver of any right which would be practically inconsistent with such permission. It would be most unreasonable' to permit a verdict to be rejected because of a change of opinion, by a juror who had deliberately agreed to it, after he had been exposed to the solicitations of the parties, or other improper influences.” So we think in the present case. And we conclude that by consenting to the return of the verdict in this manner and the separation of the jury, the parties must be held to have waived the right to have the jury polled, unless it be for the purpose of ascertaining whether they were all agreed to it when it was returned; and that it is to he received and recorded, subject only to that inquiry. We are of opinion therefore that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.