Commonwealth v. M'Caul

• Decision Date: 25 April 1812
• Citation: 3 Va. 271
• Parties: The Commonwealth v. John M'Caul
• Court: Virginia Supreme Court

3 Va. 271

The Commonwealth v. John M'Caul

Supreme Court of Virginia

April 25, 1812

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The prisoner was indicted in the Superior Court of law for Henrico county, in April 1812, for the felonious stealing, taking and carrying away from the treasury of the commonwealth, and from the custody of John Preston the treasurer, a large sum of money, to wit, seventeen thousand dollars in bank notes, and seventeen silver crowns of the value of eighteen dollars seventy cents, of the current coin of this commonwealth. He was convicted by the jury, and on the last day of the term, the following order was made by the superior court.

" At a superior court of law held for Henrico county at the Capitol in the city of Richmond, on Saturday, April 25th, 1812.

" John M'Caul, late of the parish of Henrico, in the county of Henrico, yeoman, who stands convicted of grand larceny, being again led to the bar in custody of the jailor of this court, by his counsel moved the court to set aside the verdict found against him by the jury, and to award him a new trial, on the ground of misbehavior of one of his jurors as set forth in the affidavits of James Bailey, Benjamin Sheppard, and John Morris, officers of the court, and of Frederick Clarke and John Lee juryman, and of Peter Moseley tavern-keeper, all of which affidavits are ordered to be filed among the records of this court: whereupon the court doth certify that the trial of the said M'Caul continued from Tuesday the eighth day of the court to Friday night the eleventh day of the court, and that this court by consent of the prisoner, his counsel and the attorney for the commonwealth, on the second, third and fourth days of the trial made a temporary adjournment of short duration about the hour of two in the afternoon, ^[*] and that a general order was given by the court to the jury and the officers on the first evening of the trial, that the jury should on their being adjourned, be kept together, and not separated; and the court with the consent of the prisoner doth adjourn to the general court, as a question of novelty and difficulty, this point: " Whether such a separation as is proved by the aforesaid affidavits, copies of which are hereby directed to be transmitted to the said general court, be sufficient cause for vitiating and setting aside the verdict aforesaid."

The following are true copies of the affidavits referred to in the foregoing order.

James Bailey made oath in open court, that on the second day of the impanelling the jury in the case of the commonwealth against M'Caul, he as sheriff was attending the jury from the room in which the court sat to one of the jury rooms, for the purpose of receiving some refreshments, ordered by the court during the temporary adjournment of the court; that before they got to the jury room, one of the jury, to wit, Frederick Clarke, said that he would go home, and get his dinner; he was admonished not to separate himself from the jury; he insisted on going and advanced towards the steps which led down from the portico of the Capitol to the square; at the head of the steps this affiant took hold of his arm, and told him he must not go; he said he would. The affiant returning to the jury whom he had left in the midst of the crowd, and finding Clarke not to obey the order, returned to the doors to see where he was, looked down towards the main street when he saw said Clarke going down the Capitol hill, and he had then gotten about half way to Bosher's shop. In about fifteen or twenty minutes he returned. Whither he went this affiant knows not.

Benjamin Sheppard being sworn, said that he was not in the Capitol at the time of Mr. Clarke's separation from the jury on Wednesday, he having gone to the Virginia inn to order some refreshments for the jury. When he returned, Mr. Bailey informed him that Mr. Clarke had absented himself. Question: What sheriffs were attending the court on that day at the time of the adjournment? Answer: Mr. Bailey and myself only. Question: When you went to the jury room, did you find Mr. Clarke among the jury? Answer: I did not. Mr. Clarke returned to the jury room when the rest of the jury were nearly done taking their refreshments.

John M. Morris being sworn, said that he knew of no separation of the jury sworn on the trial of M'Caul other than those stated in the affidavit of Frederick Clarke, except that Nathaniel Charter (another jury-man) went attended by the deponent to visit his family on Thursday morning, stating that one of his children was very sick; that he was absent from the jury room about twenty minutes. That said Charter was not in his presence during all the said twenty minutes, he having gone up stairs to see his family, while the affiant remained below. Question: Do you know who were in the room up stairs to which Charter went? Answer: I do not. Question: How long was he out of your presence? Answer: About five minutes. The deponent knows nothing of the separation of Mr. Clarke from the rest of the jury on Wednesday, the deponent not being in the Capitol at the time of adjournment on Wednesday.

Frederick Clarke being sworn, said that he was absent from the other members of the jury sworn for the trial of John M'Caul about twenty minutes on Wednesday last, and that it was during the adjournment of the court for the said space of twenty minutes. That during the said absence he was asked by several persons whether the case of M'Caul was determined, to which he answered no, and avoided any further conversation on the subject. That he had no conversation with any officer engaged in conducting the prosecution, or with any witness sworn thereon, or with any other person whatever except that before stated; nor did he eat or drink at the expense of any person or persons but himself. That on Tuesday night the jury were charged by the court not to separate, but on Wednesday the deponent believes that no such charge was given. And the deponent returned to the jury as soon as he had taken some refreshments, understanding the design of the court to be that the jury should have an opportunity of getting some refreshments. That he thinks it probable that previous to his separation from the jury some one member of the jury observed that he ought not to separate himself from the other members. That the sheriff opposed his separation from the jury, but the witness stated to him that he had been unexpectedly sworn on the jury, and having left some important business in such a state of derangement as required his presence, he told the sheriff that if any officer could go with him, he the deponent would prefer it, otherwise he must go alone. Question: Did Mr. Bailey the sheriff observe to you that there was no officer at that time attending that could go with you? Answer: I do not positively remember, but believe not. Question: Did Mr. Bailey take hold of your arm at the top of the step to prevent your going? Answer: " He did. Question: Did you go down for refreshment alone? or partly to attend to business of your own? Answer: Not for refreshments alone, but partly to attend to my own business. Question: While you were at dinner was the trial of M'Caul mentioned? Answer: It was as I have before stated, and no other way. Question: Were you separated from the jury at any other time? Answer: Not without an officer. On Thursday night Mr. Taylor, Mr. Bryan, and the deponent, went with an officer to Doctor Wardlaw's shop (for some medicine which was necessary for one of us) leaving the other jurors with another officer.

John Lee being sworn, said that when Mr. Clarke was about to separate himself from the jury, the deponent took him by the arm, and said to him that it was very improper for him to do so, the court having directed that they should remain together. Mr. Clarke replied that his goods at that time for ought he knew were exposed in the street to the Negroes, and he must go.

Peter Moseley made oath in open court, that on Wednesday or Thursday last about two o'clock, two or three minutes before two, Frederick Clarke the juror came to his house, the Columbian Hotel in Cary street, where the said Clarke boards, not attended by any officer, or any other member of the jury, and asked if dinner was ready. The affiant answered he believed it was, and he had the bell rung, and dinner brought on the table. The boarders assembled at the ringing of the bell, and Mr. Clarke, who the affiant believes had gone to his own room, came down, and dined in their company. About twenty-three minutes afterwards, the said Clarke left the room, the affiant stating to him at the time that he believed he had overstayed his twenty minutes. The affiant does not know that the said Clarke conversed with any person on the subject of M'Caul's case, and believes that said Clarke, except when he was dining, remained in his own room; but affiant was not in the dining room during dinner, and therefore does not know what the subjects of conversation were.

The affidavits ended here.

At the same time the following order was directed to be entered on the order book of the superior court of law, but by mistake it was not entered: the clerk however transmitted a copy of the order to the general court, and the...