State v. Bland

• Decision Date: 10 May 1904
• Citation: 76 P. 780,9 Idaho 796
• Parties: STATE v. BLAND
• Court: Idaho Supreme Court

76 P. 780

9 Idaho 796

STATE v. BLAND

Supreme Court of Idaho

May 10, 1904

COMMUNICATIONS WITH JURY-JUDGE IN JURYROOM-INSTRUCTIONS-DELIVERING LETTER TO JUROR.

1. Where a judge, after the jury have retired for deliberation goes to the juryroom upon request of a juror, and in the absence of defendant and his counsel, and has a conversation with the jury or a juror relative to the case, or with reference to their verdict, such conduct will constitute error for which a new trial will be granted.

2. All communications between judge and jury should take place in open court, and in the presence of the parties litigant or their counsel.

3. An instruction in the language of section 7697, Revised Statutes, as follows: "You are further instructed that the distinction between an accessary before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessary than are required in an indictment against a principal," is not error.

4. It is error to deliver a sealed letter to a juror after the case has been submitted to the jury.

(Syllabus by the court.)

APPEAL from the District Court in and for the County of Shoshone. Honorable Ralph T. Morgan, Judge.

Defendant was convicted of the crime of manslaughter, and from the judgment and an order denying his motion for a new trial appeals. Reversed.

Reversed and remanded.

Henry P. Knight, for Appellant.

The court erred in giving to the jury instruction No. 10 requested by the state set forth in the opinion. This instruction is nothing other than a statutory rule of pleading in criminal cases. It does not enlighten, or tend to enlighten, the jury upon a question of evidence, presumptions, proofs, or any other subject within the province of the deliberations of the jury, and should not have been given. (1 Bishop's New Criminal Procedure, art. 978.) After a careful examination of all the available authorities, we regard the action of the trial judge in appearing before the jury during their deliberations, and without the presence of, or notification to, the defendant or his attorneys, as so flagrant and serious an error that we apprehend the supreme court will not probably care to consider any other assignment, and we, therefore, present the following: 1. In felony the accused must be present at every stage of the trial. (1 Bishop's New Criminal Procedure, art. 273; Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262.) The giving of instructions to the jury is an important part of the trial, and it is irregular and manifestly error for the court, in the absence of the plaintiff, to instruct the jury. (Campbell v. Beckett, 8 Ohio St. 211; 1 Bashfield's Instructions to Juries, art. 179; Chicago etc. R. Co. v. Robbins, 159 Ill. 598, 43 N.E. 332; Quinn v. State, 130 Ind. 340, 30 N.E. 300; Low v. Freeman, 117 Ind. 341, 20 N.E. 242; Hopkins v. Bishop, 91 Mich. 328, 30 Am. St. Rep. 480, 51 N.W. 902; Fox v. Peninsular White Lead etc. Works, 84 Mich. 676, 48 N.W. 203; Snyder v. Wilson, 65 Mich. 336, 32 N.W. 642; Watertown Bank etc. Co. v. Mix, 51 N.Y. 561; Taylor v. Betsford, 13 Johns. (N. Y.) 487; State v. Wroth, 15 Wash. 621, 47 P. 106; Jones v. State, 26 Ohio St. 208; Hulse v. State, 35 Ohio St. 429; Maurer v. People, 43 N.Y. 1; Rev. Stats. 1887, sec. 7903.) Even though the conversation had taken place in the courtroom, from the bench, without the presence of the defendant, and his counsel, it would have been error. ( People v. Trim, 37 Cal. 274; Smith v. State, 51 Wis. 621, 37 Am. Rep. 845, 8 N.W. 410; People v. Hersey, 53 Cal. 574; Territory v. Lopez, 3 N. Mex. 104, 2 P. 364; Ellerbee v. State, 75 Miss. 522, 22 So. 950, 41 L. R. A. 569.) The record discloses another error, to which we desire to call the court's attention. A letter was delivered to juror Braham without the consent of the defendant and without his knowledge, after the jury had retired to deliberate of their verdict. This was reversible error. (State v. McCormack, 20 Wash. 94, 54 P. 764.)

Attorney General John A. Bagley and R. N. Dunn, County Attorney, for the State.

As stated at the outset, appellant appears to rely solely upon the fact that while the jury were deliberating upon their verdict a communication took place between the trial judge and the jury, neither the defendant nor his counsel nor counsel for the state being present. We submit that the only evidence in the record as to what took place between the judge and the jury is contained in the affidavit of Judge Morgan. The elaborate statements contained in the affidavits filed on behalf of the defendant as to what passed between the judge and the jury are simply hearsay and are denied by Judge Morgan, except as to the questions and answers admitted in his affidavit. While this communication was an irregularity, it seems to us that it was not of so serious a character as contended for by appellant; neither are the authorities so unanimous in support of his view as stated in appellant's brief. (Goldsmith v. Solomons, 2 Strob. 300.) Where no error appears in the record prejudicial to the defendant, the judgment will be affirmed. (State v. Hurst, 4 Idaho 345, 39 P. 554; State v. Hardy, 4 Idaho 478, 42 P. 507; State v. Haverly, 4 Idaho 484, 42 P. 506.) A reversal cannot be predicated upon harmless error. (State v. Rice, 7 Idaho 762, 66 P. 87; State v. Corcoran, 7 Idaho 220, 61 P. 1035, citing State v. Reed, 3 Idaho 754, 35 P. 706.) While some of the authorities cited by appellant, notably State v. Wroth, support appellant's contention, many of them do not, for the reason that the facts surrounding those decisions were so entirely different from the facts in this case. (Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Jones v. State, 26 Ohio St. 208; Hulse v. State, 35 Ohio St. 429; Ellerbee v. State, 75 Miss. 522, 22 So. 950, 41 L. R. A. 569; Maurer v. People, 43 N.Y. 1; Gandalfo v. State, 11 Ohio St. 114; Tilley v. Montelius Piano Co., 15 Colo. App. 204. 61 P. 483; McCutcheon v. Loggins, 109 Ala. 457, 19 So. 810; State v. Borchert, 68 Kan. 360, 74 P. 1108; People v. Cox, 76 Cal. 281, 18 P. 332; People v. Leary, 105 Cal. 486, 39 P. 24.) New trial cannot be granted on any other grounds than those enumerated in section 7952, Revised Statutes of Idaho. (State v. Davis, 6 Idaho 159, 53 P. 678; State v. McGraw, 6 Idaho 635, 59 P. 178.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

In this case the defendant was on the fifth day of June, 1903, indicted by the grand jury of Shoshone county charged with the murder of one Emma R. Aubrey, and the offense was alleged to have been committed by the defendant aiding and abetting one Arthur K. Goode in killing and murdering the deceased. The case came on regularly for trial in July following and the evidence both for the state and the defendant was submitted and the jury were instructed by the court. On the evening of July 31, 1903, the jury were sent to the juryroom under the charge and control of a sworn bailiff. At about 10 o'clock the following morning, August 1st, they returned into court and rendered their verdict as follows: "We, the jury in the above-entitled action, find the defendant, Joseph L. Bland, guilty of the crime of manslaughter, with the utmost mercy of the court."

The district judge thereafter sentenced the defendant to a term of ten years in the state penitentiary. From the judgment and the order denying defendant's motion for a new trial this appeal has been prosecuted. Eleven assignments of error are presented to this court as grounds for a reversal of the judgment. Counsel for the appellant practically relied upon the eleventh assignment at the argument of this case, and we therefore give that our first consideration. Upon the motion for a new trial the defendant presented his own affidavit and that of his attorney, Henry P. Knight, setting forth the fact, among other things, that without the knowledge or consent of the defendant or his counsel, the trial judge, in response to the request from a juror, appeared in the juryroom at about the hour of 9 o'clock on the morning of August 1st, and prior to the finding of the verdict, and had some conversation with one or more of the jurors, "and that at that time the said judge was asked by one of the said jurors whether or not there were two degrees of manslaughter, and whether or not the said jury could find the defendant guilty of manslaughter in the second degree; that thereupon the said judge answered that there was no such thing as manslaughter of the second degree, but that the jury could find the defendant guilty of manslaughter and recommend him to the mercy of the court. That the said R. T. Morgan [the trial judge] was further questioned by one of the jurors as to whether the jury could fix the penalty for manslaughter, and that he answered that they could not, but that they could recommend him to the mercy of the court. That the said juror further asked what was the lightest punishment for manslaughter, and that he was answered by the said judge that the punishment was imprisonment in the state penitentiary for a period of not less than one year and not exceeding ten years."

It was also alleged in the affidavits that several jurors had made substantially the same statement as to what occurred in the juryroom, but that each of them refused to make an affidavit to that effect for personal, business and social reasons, and that neither the defendant...