Danes v. Pearson

• Decision Date: 11 April 1893
• Docket Number: 653
• Citation: 33 N.E. 976,6 Ind.App. 465
• Parties: DANES ET AL. v. PEARSON
• Court: Indiana Appellate Court

33 N.E. 976

6 Ind.App. 465

DANES ET AL. v. PEARSON

No. 653

Court of Appeals of Indiana

April 11, 1893

From the Sullivan Circuit Court.

Judgment reversed, with instructions to grant a new trial.

J. S Bays, W. A. Cullop and C. B. Kessinger, for appellants.

J. T Hays, for appellee.

OPINION

LOTZ, J.

The appellee brought this action against the appellants to recover the possession of seven hundred and fifty shocks of wheat. He obtained a judgment in the court below, and from that judgment an appeal was taken to this court. Two errors are assigned here, viz.: (1), the overruling of a motion for a venire de novo, and (2) the motion for a new trial.

Appellants' counsel have considered the last one only, and, under the familiar rule, the first is waived.

One of the causes assigned for a new trial is the alleged misconduct of the judge who presided at the trial. It is shown by the affidavit of one of the attorneys for appellants, who assisted on the trial, that after the evidence and argument had been closed, and after the jury had been instructed by the court, and had retired to the jury room to deliberate on the verdict, and that while so confined in said room, and before a verdict had been found, the judge of said court, who presided on the trial of said cause, went with the bailiff in charge of said jury to the door of the jury room; that the bailiff then unlatched the door of said room and opened it that the said judge then entered said room, and that the bailiff then closed said door and latched the same while the judge remained on the inside of said room with the jury; that said judge entered said room without the consent of affiant, and without notifying him that he was going into said room, and that affiant had no knowledge that said judge intended to enter said room until after he had done so, and the bailiff had closed and locked the door thereto with said judge therein; that the only persons present at the time were said judge and two bailiffs and a member of the bar of an adjoining county and the affiant.

There were no counter affidavits filed, but the bill of exceptions contains the following recital:

"That after the jury had received their instructions in said cause, and had retired to consider of their verdict, and before they had agreed upon their verdict in said cause, and while they were locked up in their room deliberating on their verdict, and after they had been deliberating for a period of about one and one-half hours, and between the hours of 5 and 6 o'clock in the evening of the 5th day of November, 1891, and while the jury were in their juryroom deliberating upon their verdict in said cause, and before they had agreed upon a verdict, and before they had been discharged therefrom, and after said cause had been submitted to them for their determination, and before they had arrived at a verdict in said cause, the Honorable John C. Briggs, the judge of said court, and presiding judge in said cause, went from the judge's desk in the court room to the door entering the petit jury room, in which said jury were so deliberating of their verdict, requested the bailiff to open the said door, and the door being opened said judge stepped into said room and said to said jury: Gentlemen, is there any prospect of your agreeing upon a verdict soon?' Whereupon one of the jurymen referred the judge to the foreman, who came forward and said: We can hardly tell, as there is some disagreement among us. Can you tell us anything about the instructions?' To which the judge answered: No, I can not say anything to you about the case. If you conclude you want to hear the instructions read again, you can let me know through your bailiff, and I will re-read them to you in open court, in the presence of the counsel in the case.' The judge then said to the jury: I came in to see if there was any prospect of you agreeing before supper, and if not, I desire to direct the sheriff to arrange for your supper, and as I was about leaving the court house I will tell the bailiff to order supper for the jury.' And this was all that took place between said judge and jury, and all that occurred therein while said jury was in said jury room in any manner relating to said cause; that, when said judge stepped into said jury room, said bailiff remained outside of the door, and closed the same, but whether he fastened the same or not, by locking it, the said judge did not notice, for as he was concluding the last sentence above set out, he placed his hand on the thumb latch of the door, and it was at once opened, and as the latch rattles freely and loosely, it may have been fastened by the bailiff; that his attention was not attracted to the matter at the time, nor until a motion for a new trial was filed some days after; that, as the judge walked from the judge's desk to the petit jury room, John S. Bays, one of the attorneys for defendants, and who helped in the trial thereof, was standing near the judge's stand talking to Col. Aden G. Cavins, an attorney of the Greene Circuit Court, and facing the judge as he walked across the court room and went into the jury room aforesaid, and saw said judge enter said jury room, but when the judge came out of said juryroom said Bays had left the court room; that said judge was in said jury room just long enough for said conversation to occur, with the necessary and natural delay between the sentences, and may have been there from two to four minutes; that no objection was made by said defendant's attorneys until a motion for a new trial was filed by defendants, when it was made one of the grounds for a new trial, as shown by the motion; that the sole and only object of said judge, in going into said jury room, was to know if said jury would probably agree before supper was ordered for them at the expense of the county; that no other person or parties were present at the time said judge was in said jury room with said jury; that said judge did not notify defendants or their counsel that he was going into said room where said jury was confined deliberating on said cause, and said judge did not ask their consent, or that of their counsel, and that they did not know said judge intended to enter said room, or see him, except John S. Bays, as herein stated."

The question here presented for our determination is whether or not such conduct on the part of the presiding judge is error, and, if error, is it such as entitles the appellants to a reversal of the cause? The high character of the Circuit Judge, who presided at the trial, is a sufficient guaranty that none but the best of motives actuated him in making the communication to the jury; nor is there anything in the communication itself that had any tendency to prejudice or injure the rights of the appellants. Unless, therefore, a positive rule of law has been violated, a breach which public policy will not excuse, the cause must be affirmed. In the selection of a jury it is the policy of our law that none but persons who are entirely disinterested and free from all bias and prejudice shall be chosen. After the jury shall have been empanelled, the greatest circumspection is provided, that no undue influence be brought to bear upon the minds of the jurors (section 540, R. S. 1881), and after the cause shall be finally submitted, and the jury retire for deliberation on the verdict, the law redoubles its vigilance that no improper communication be made.

Section 539, R. S. 1881, provides that "whenever a case is finally submitted to the jury, they may decide in court, or retire for deliberation. If they retire, they must be kept together in some convenient place, under the charge of a sworn officer, until they agree upon a verdict or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon."

If there be a disagreement, or the jury desire further instruction, the officer may conduct them into court, where the information shall be given in the presence of, or after notice to, the parties or their attorneys. Section 541, R. S. 1881.

These statutes are but a reiteration of the common law.

Trial by jury is one of the most important instrumentalities in the administration of justice, and for many centuries it has been the constant endeavor of the law to put twelve honest and disinterested men in the jury box. After the jury has been empanelled, the vigilance is augmented that no improper influence or communication be permitted to reach them, and especially is this so after the jury has retired for deliberation on the verdict. There is not much harmony in the decided cases as to what will constitute a harmful communication when made by a third person, or by the bailiff or clerk, but in all instances such communications are scrutinized with the greatest care. When an important communication has been made the presumption is that it is hurtful, and it is then incumbent on the opposite party to show that no harm resulted. But a judge of the court occupies a different attitude toward the...