Moore v. Edmiston

• Decision Date: 31 January 1874
• Citation: 70 N.C. 471
• Court: North Carolina Supreme Court
• Parties: DAVID MOORE v. W. H. EDMISTON.

70 N.C. 471

DAVID MOORE

v.W. H. EDMISTON.

Supreme Court of North Carolina.

January Term, 1874.

To vitiate and avoid a veidict, it must appear upon the record that undue influence was brought to bear on the jury. All other circumstances of suspicion address themselves exclusively to the discretion of the presiding Judge, in granting or refusing a new trial, which discretion is not a proper subject of review by this Court.

To give parties the benefit of the provision of sec. 299, C. C. P. allowing an appeal from an order granting or refusing a new trial, the presiding Judge should put upon the record the matters inducing the order, so that this Court can see whether the order presents a matter of law which is a subject of review, or matter of discretion which is not.

( State v. Miller, 1 Dev. & Bat. 500; State v. Tilghman, 11 Ired. 573; Exchange of Colnmbia v. Tiddy, 67 N. C. Rep, 169; Love v, Moody, 68 N, C, Rep, 200; Vest v, Cooper, Ibid. 131, cited and approved,)

CIVIL ACTION, tried at Spring Term, 1874, of the Superior Court of CALDWELL county, before his Honor, Mitchell, J.

The jury rendered their verdict in favor of the defendant upon all the issues submitted. Plaintiff moved for a new trial, which his Honor granted for the reason, that after the case had been given to the jury and they had retired to make up their verdict, the jury, without leave of the Court, and without the knowledge or consent of the plaintiff, separated and dispersed themselves, and whilst so dispersed partook of refreshments and remained so dispersed and separated, conversing with other persons, for the space of one hour.

The jury had been allowed to separate without objection during the trial of the cause at previous adjournments of the Court. There was no evidence that the jury had been tampered with during their separation. The Court granted the new trial on the ground of their separation, from which judgment the defendant appealed.

Malone, with whom was Bailey & McCorkle , filed the following brief:

1. The defendant in this case appeals from the judgment of the Court in granting a venire de novo, or new trial, under sec. 299, C. C. P.

2. The action of the Court, in granting a new trial, must involve matter of ““law or legal inference.” Vest v. Cooper, 68 N. C. 131; Love v. Moody, 68 N. C. 200.

3. “ Every decision implies the finding of a state of facts, and the conclusion of law upon it.” State v. Prince, Phillips (June Term,) 1869, p. 533.

4. In this case the Judge finds a state of facts, hence the conclusion must be a “legal inference;” it would be otherwise if he had found no facts, but simply granted a new trial for some discretionary cause without stating the facts from which he drew a conclusion. But the facts should in all cases be found by the Judge below.

5. The effect of sec. 299 of C. C. P. is to enlarge the supervisory power of this Court over the granting or refusing to grant new trials, as the discretionary power of the Courts has been the source of much abuse and wrong in the administration of justice. See dissenting opinion of Judge GASTON in the case, State v. Miller, 1 Dev. and Battle, 516-540. On page 540 he says: “This discretion, it is oppressive to the Judge, dangerous to the community and at variance with the settled principles of our law.” See Platt v. Monroe, 34 Barbour, 291.

6. And especially should the discretion be controlled within legitimate bounds when the discrefion is exercised against the party having a verdict of the jury in his favor. The reason that much discretion is allowed in the refusal to grant new trials is because the verdict of the jury stands to forbid an interference except for a well defined cause. Heretofore no appeal has been allowed to the party against whom the new trial is granted. (Every intendment and presumption in favor of the verdict.) Honeycutt v. Angel, 4 D. & B. 306.

7. But the principal reason for this discretion in the refusal to grant new trials, is because the Court cannot always see the facts as presented to the Court below; but in this case all the facts are found and the Court here can see the case precisely as Court below. This distinguishes the class of cases.

8. In all the cases where the discretionary power over new trials is exercised in case of separation of the jury, the Court finds some act of tampering which is expressly negatived in this case.

9. The Judge having made the facts a part of the record, and having drawn the legal conclusion, the legal result is to declare the verdict void, and that he would have been compelled, by law, to disregard the verdict under the circumstances, had it gone either way.

10. And it is well settled that the separation of the jury does not render the verdict void. The doctrine is fully discussed in State v. Miller, 1 Dev. & Bat. 500; 2 Battle's Digest, 817.

We respectfully refer also to the following authorities: State v. Sparrow, 3 Murp. 487; State v. Lyttle, 5 Ired. 58; State v. Godwin, 5 Ired. 401; Adams v. People, 47 Illinois 376; State Braenen, 45 Mo. 329; Stephens v. People, 19 N. Y. 547; Davis v. State, 15 Ohio, 72; King v. Wolfe, 1 Chitty's Rep. 401; Hilliard, N. T., 798 note; Evans v. Foss, 49 N. H. 490 at 497 bottom; Powell v. Jopling, 2 Jones, 400; Powell on App. Proceedings, pp. 195 et seq.

Folk & Armfield, contra .

There is a marked distinction between awarding a new venire because the verdict is bad and setting a verdict aside and granting a new trial. The former must be for matters apparent on the record and is of right. The latter may be for matter not appearing on the record, and is addressed to the sound discretion of the Court. The former is matter of error, and must be noticed by the appellate court; the latter has heretofore been considered not matter of error, or elsewhere examinable. (Chief Justice WILLS, Wytham v. Lewis, 1 Wilson, 55.) It is not necessary to ascertain to which of the above stated principles the present case belongs, or discuss the point stated by READE, J., in Love v. Moody, 68 N. C., p. 200; for the following proposition is clearly sustained by reason and authority, (viz.): If the jury, after they are directed to retire and consider of their verdict without any necessity therefor, and without the leave of the Court, disperse and go at large, the Judge in the exercise of his discretion may set the verdict aside and grant a new trial, unless the suspicion arising from such misconduct is removed by affidavit or otherwise. The only exception admitted to this proposition is where the jury disperse from necessity, and this exception seems very ancient. In King v. Mozely, 1 Chitty, 401, 2d Barnwell and Alderson, there is a note by the reporter of a case decided in the Exchequer Chamber between the Bishop of N. and the Earl of Kent, the jurors were chosen, tried and sworn, and whilst the parties were giving their evidence, there come such a storm of thunder and rain, that some of the jury departed without leave of the Court; and after several arguments and adjournments it was held by four Judges against three, that the verdict was good, for they had a reasonable ground for departing, because of the storm, (it seems they stood in the open street.) Bro. Abr. verdict, p. 19. In Bro. Abr., title Jurors, p. 13, it is said that the jurors may separate by reason of a great tempest, or affray, or the falling of the house, and the same law is of a fire in the house. For the cause of the dispersion prevents suspicion of any misconduct. But where the jury disperse without necessity or leave of the Court, the authorities are uniform to sustain the position that their verdict ought not to stand. Lord Coke lays it down as a fundamental rule that by the law of England, a jury, after the evidence given upon the issue, ought to be kept together in some convenient place, without meat or drink, fire or candle, without speech to any one unless it be the bailiff, and with him only if they be agreed. Co. Lit., 227. The jury might eat and drink in view of the Judge. Com. Dig, tit. Pleader, verdict 346. This part of the rule was intended to guard rather against delay, than corruption, and was always regarded as not absolutely inflexible; but one which might be accommodated to the circumstances of each case GASTON, J., State v. Miller, 1 Dev. & Bat., 520. But the first great purpose of the rule, the securing the jury from the possibility of improper intercourse, must ever forbid any dispensation from that part of it which requires that they shall be kept together. The law has sought by the most jealous means to procure triers above all exception who stood indifferent as they stood unsworn, and with yet more jealous care provided that they should hear no evidence but what was relevant to the precise matter in controversy, and delivered in the presence of the parties under guards, and solemnities of law. If, after all these precautions, it were to permit triers to disperse and mix with those around them, these safeguards would be demolished, triers would catch the partialities and prejudices of the friends and enemies to the parties, their ears would be open to all that might be said in relation to the subject of trial, and their decision would be the reflex of the untutored prejudices of a mob, rather than the enlightened and impartial verdict of a jury. Whatever may be the innovations made on the former part of the above rule, considerations like these have preserved the latter branch intact. In Dalt., ch. 185, it is said after evidence has been heard and the jury retire to consider of their verdict, the oath administered to the bailiff sworn to keep them, is as follows:

“You swear that you shall keep this jury without meat, drink, fire or candle. You shall suffer none to speak to them, neither shall you speak to them yourself, only to ask them whether you are agreed, so help you God.”

So in Com. Dig. tit. Enquest, it is laid down that after the evidence is given, the jury ought to stay...