Long v. State

• Decision Date: 27 May 1884
• Docket Number: 11,532
• Citation: 95 Ind. 481
• Parties: Long et al. v. The State
• Court: Indiana Supreme Court

95 Ind. 481

Long et al. v. The State

No. 11,532

Supreme Court of Indiana

May 27, 1884

From the Shelby Circuit Court.

Judgment affirmed with costs.

J. C Hart, E. K. Adams and L. J. Hackney, for appellants.

F. T Hord, Attorney General, F. S. Staff, Prosecuting Attorney, A F. Wray, B. F. Love, D. L. Wilson, A. Major, H. C. Morrison and W. B. Hord, for the State.

OPINION

Zollars, J.

In September, 1883, a ball, fired from a gun or pistol, entered the house of Samuel H. Saulsberry, and wounded his child. As the authors of the injury, appellants were tried, convicted and sentenced to an imprisonment of two years, upon an indictment which charged them with assault and battery with intent to kill and murder.

Two of the causes urged for a new trial below, and upon which appellants' counsel lay much stress here, are that one of the jurors took notes of the evidence, and used them in the jury room in influencing the jury. These questions were presented by affidavits and an oral examination of the juror. The affidavit by appellants was, that, without their knowledge or consent, the juror made notes of the evidence adduced upon the trial, and, while the jury were deliberating upon their verdict, read said notes to them, and that the notes so made were thus used to the injury of appellants. It is not developed in this affidavit by what means, or from what source, appellants learned that the notes had been thus used, or that they had been so taken by the juror.

To meet this affidavit were the affidavit and oral examination of the juror, and some of his associates. In these the accused juror stated that without any objections from the court or the parties he made notes of some points of the evidence in his own words, neither preserving the names nor language of the witnesses; that he did not read any of the notes to his fellow jurors, and that they neither read, considered, nor referred to such notes, nor any others. He stated that on one or two occasions, when the jurors were talking of the evidence, he looked over a part of his notes to see if they agreed with the recollections of the other jurors and his own, as to what the evidence on certain points had been; that he made no statements of any kind to the other jurors in relation to the notes, and that his verdict was not at all influenced by the notes, but that he relied upon his memory independent of them.

Another juror, in an affidavit filed below, stated that the jury neither read nor heard read notes of the evidence taken by any juror, or any other person, and that the verdict of the jury was based wholly upon their recollection of the evidence, unaided by any kind of notes.

Did then the taking of notes of the evidence by the juror, under the circumstances, vitiate the verdict?

We are cited by counsel for appellant to the following cases: Newkirk v. State, 27 Ind. 1; Eden v. Lingenfelter, 39 Ind. 19; Lotz v. Briggs, 50 Ind. 346; Nichols v. State, ex rel., 65 Ind. 512; Cheek v. State, 35 Ind. 492.

In the first of the above cases, the judgment was reversed, because, without consent of the parties, the jury, after they had retired to deliberate upon their verdict, requested and received from the bailiff a volume of Bishop's Criminal Law, from which counsel had read on the argument.

In the others, except the last, it was held error for the court to allow the jury, over the objections of a party, to take to their room documentary evidence.

In the last case, two of the jurors, over the objections of the defendant, and after the court told them they must not do so, persisted in writing down notes of the evidence.

It will be observed that in the first of the above cases the misconduct of the jury was such that the defendant could not object, because not present, and that in the others the misconduct was over the objections of the party complaining. If that complained of as misconduct had been with the knowledge and consent of the parties, or with their knowledge and without objection, it would not have been available error for the reversal of the judgments. Cluck v. State, 40 Ind. 263. Does it sufficiently appear in the case at bar that the juror made the notes of the evidence, and took them to the jury room, without the knowledge and consent of appellants?

Appellants in their affidavit state that it was done without their knowledge and consent, but it is not in any way made to appear that it was without the knowledge and consent of their attorneys. The record shows that their attorneys were present, conducting their defence from the inception of the trial to the final judgment. If the attorneys had such knowledge, that knowledge must be imputed to appellants. It would hardly do to hold that verdicts may be overthrown, because a juror may take notes of the evidence without the personal knowledge of a party, although his attorneys may all the while have full knowledge, and make no objection, either to the taking of the notes, or the taking of them to the jury room. The only reasonable and safe practice in such cases is to hold the party bound by the knowledge, omissions and acts of his attorney. The necessity of such a rule must be apparent. The purpose of the employment is that the attorney may watch and guard the rights of the party in the progress of the cause. The attorney, with his experience and knowledge of court affairs, will detect what would not be observed by the party. It is difficult to understand how a juror could take notes of the evidence in a case without detection by the attorneys.

Our views are fully sustained by the case of Eastman v. Wight, 4 Ohio St. 156. In that case a new trial was asked because of the incompetency of one of the jurors. In support of the motion, the party filed his affidavit that he had no knowledge of such incompetency during the trial. There was nothing to show that his attorney did not have such knowledge. The new trial was denied. The Supreme Court held that it was correctly denied, on the ground that the knowledge of the attorney is the knowledge of the party, and that the want of knowledge on the part of the attorney must be made to appear affirmatively. The same rule was applied to a criminal case. Parks v. State, 4 Ohio St. 234. See Achey v. State, 64 Ind. 56. The same rule has been applied in Massachusetts. Kent v. City of Charlestown, 2 Gray 281; Orrok v. Commonwealth Ins. Co., 21 Pick. 456. Other cases from other States might be cited.

In the case in hearing there is nothing to show a want of knowledge on the part of appellants' attorneys of the conduct of the juror. If we are correct in our holding, that the knowledge of the attorney is the knowledge of the party, it results that the want of such knowledge must be affirmatively shown, as well as the want of personal knowledge by the party. To adopt a contrary rule would surround jury trials with uncertainty and hazard by enabling parties to experiment with juries and courts. In support of the verdict, therefore, we must presume, in the absence of a showing to the contrary, that appellants' attorneys had knowledge of the fact that the juror made notes of the evidence, and took them to the jury room, and made no objections. Where there is knowledge and no objections, in such a case, consent will be presumed. Cluck v. State, 40 Ind. 263. Under the circumstances of this case, the fact that the juror looked over portions of his notes once or twice in the jury room is not such an error as would justify a reversal of the judgment.

It is clearly stated in the affidavits of Duval, the juror who took the notes of the evidence, and another juror, that none of the jury, except Duval, in any way consulted the notes in the jury room, or even saw them.

It is also stated that, in arriving at a verdict, the jury relied wholly upon their memories as to what the evidence was, and were in no way influenced by the notes. The only thing in any way in conflict with this is the affidavit of one of appellants' attorneys, in which he states that one of the jurors told him that Duval read from his notes to one or two of the jury.

The law is well settled that the affidavits of jurors may be used to support and uphold the verdict, but not to overthrow and destroy it. This being so, it follows that what any juror may say can not be used to overthrow the verdict. Stanley v. Sutherland, 54 Ind. 339; Withers v. Fiscus, 40 Ind. 131 (13 Am. R. 283); Haun v. Wilson, 28 Ind. 296; Hughes v. Listner, 23 Ind. 396; Jones v. State, 89 Ind. 82.

Another rule is also well settled, viz.: Where a motion for a new trial is based upon the alleged misconduct of jurors, and the trial court hears evidence, either orally or by affidavits, touching such misconduct, its conclusions will not be disturbed by the Supreme Court on the weight of the evidence. DePriest v. State, ex rel., 68 Ind. 569; Holloway v. State, 53 Ind. 554.

Another general rule is that the misconduct of the jury must be gross, and clearly appear to have injured the complaining party, to justify the granting of a new trial. Ball v. Carley, 3 Ind. 577; Bersch v. State, 13 Ind. 434; Harrison v. Price, 22 Ind. 165; Whelchell v. State, 23 Ind. 89; Flatter v. McDermitt, 25 Ind. 326; Medler v. State, ex rel., 26 Ind. 171; Achey v. State, 64 Ind. 56; Carter v. Ford Plate Glass Co., 85 Ind. 180.

The fifteenth cause assigned in the motion for a new trial is stated as follows: "Misconduct of the plaintiff by her witness, Samuel Douthett, in concealing from the defendants important evidence in their behalf, and in intimidating Nathan Young, a competent and important witness for defendants on the trial of said cause, as shown by the affidavits of James Young and Nathan Young filed herewith." This presents no question for the...