State v. Forrester

• Decision Date: 05 June 1905
• Citation: 14 N.D. 335,103 N.W. 625
• Parties: STATE v. FORRESTER.
• Court: North Dakota Supreme Court

14 N.D. 335

103 N.W. 625

STATE

v.FORRESTER.

Supreme Court of North Dakota.

June 5, 1905.

Syllabus by the Court.

Affidavits of jurors are not admissible to impeach their verdict upon the alleged ground that they misunderstood the instructions of the court, or to show their reasons for agreeing to a verdict.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

Ella Forrester was convicted of grand larceny, and appeals. Affirmed.H. F. Miller (J. W. Tilly, of counsel), for appellant. The Attorney General and S. W. Richardson, Asst. State's Atty., for the State.

MORGAN, C. J.

The defendant was informed against jointly with her husband upon a charge of grand larceny alleged to have been committed on October 17, 1904, and, after a separate trial upon her demand, was found guilty and sentenced to four years of imprisonment in the penitentiary. She moved for a new trial upon the following grounds: First. “Because the verdict arrived at and returned by the jury * * * was not arrived at by a fair expression of opinion on the part of all the jurors who tried said case, but, on the contrary, the said verdict was arrived at under an agreement entered into between the several members of said jury, which agreement was made upon and under a misapprehension and misunderstanding of the law and the charge of the court given them.” Second. Because certain additional instructions given at the request of the jury were misleading and prejudicial to the defendant, and the jury were misled by such instructions as a matter of fact. The motion was based upon the affidavits of three of the jurors who tried the case, and the additional instructions given by the court which are claimed to be erroneous. Neither the evidence nor the original instructions are brought to this court. The affidavit jointly made by the three jurors is in substance as follows, so far as material: That, after the jury had retired for deliberation upon a verdict, affiants concluded from the uncontroverted evidence that the defendant was not guilty of the crime of grand larceny as charged to have been committed on October 17th, and that they were therefore in favor of her acquittal. But the other jurors contended that the defendant might have stolen said goods prior to October 17, 1904, and that if she did steal said goods prior to said day she would be guilty, and “they insisted that they refer the difficulty to the judge of said court for further instructions on that point.” After discussing the evidence, “it was finally agreed between those members of the jury who believed that she should be found guilty that if the said court should instruct them further that they might find that she stole the goods at a date prior to said 17th day of October, 1904, that these affiants should vote with those who believed she should be found guilty, and convict said defendant; the other members of the jury believing her guilty at the same time agreeing that if the court instructed them that under the evidence they could not find her guilty of stealing the goods on any other day than said October 17th, that they would join with these affiants and those others who believed her innocent, and vote for her acquittal.” Thereupon the jury was taken into court, and the foreman asked for further instructions upon this question: “Does the burden of proof rest with the state to show that the defendant took the piece of silk on the exact date as charged in the complaint?” The instruction as given by the court is here incorporated in the affidavit. The jury were told, in answer to the question, that the defendant might be found guilty if the evidence showed that she had taken the property on any date prior to October 17th within three years before the filing of the complaint. The affidavit then states that the jury returned to their room for further consideration of the case, and that the jurors who were for conviction insisted that the jurors who favored acquittal were bound to vote for conviction, and that they all thereupon voted for conviction. It is further stated: “And these affiants say that, had they fully understood the charge of said court as given to them at the time they asked for further instructions, they would not have consented or agreed to find said defendant guilty, for the reason that there was no proof on the part of the state, or otherwise submitted on the trial of said case, in any ways tending to show that said defendant stole said goods at any date prior to said 17th day of October, 1904. And * * * they, in pursuance with their agreement with said other members of said jury, and for the purpose of making...