State v. Igo

• Decision Date: 31 July 1855
• Parties: THE STATE, Respondent, v. IGO, Appellant.
• Court: Missouri Supreme Court

21 Mo. 459

THE STATE, Respondent,

v.IGO, Appellant.

Supreme Court of Missouri.

July Term, 1855.

1. The mere fact that a juror in a criminal case separates from his fellows after they have retired to consider of their verdict, and is seen in conversation with a by-stander, is no sufficient ground for setting aside the verdict, there being no ground for suspecting any improper influence.

Appeal from Morgan Circuit Court.

The facts are sufficiently stated in the opinion of the court.

Edwards, for appellant. A juror having separated himself from his fellows, without being attended by an officer of the court, without the consent of the court, after the cause was submitted to the jury, and before the jury had agreed on their verdict, said verdict was void. (3 Harris' (Penn.) Rep. 470. Wesley v. The State, H. Humphrey's (Ten.) Rep. 512. McCann v. The State, 9 Smedes & Marsh. (Miss.) Rep. 465.) The facts in this case are different from those in the case of Whitney v. The State, 8 Mo. Rep., and State v. Barton, 19 Mo. Rep.

Gardenhire, (attorney general,) for the State. It has often been decided that the separation of the jury is, of itself, prima facie cause for a new trial. (7 Eng. (Ark.) 782. 9 Sm. & Marsh. (Miss.) 465. 13 ib. 398, ib. 500. 1 Swan (Ten.) Rep. 256. 8 Humph. 597. 11 ib. 169, ib. 502--a capital case. 1 Va. cases, 271. 2 ib. 375. 11 Leigh, 633. 3 Harris (Penn.,) a capital case, in which the prisoner consented to the separation.) But such is not the English doctrine, (1 Chitty's Rep. 401; 1 Chitty's C. L. 634;) nor is it the doctrine of most of the American states. (Wharton's C. L. 895. 2 Blackf. 114. 2 Carter, (Ind.) 435. 11 Ohio, 471. 13 ib. 492. 15 ib. 72. 2 Bailey, 565. 2 Strobh. 178. 2 Rich. (S. C.) 119. 1 Bailey, 651. 1 Dev. & Bat. 500. 7 New Hamp. 290. 1 Conn. 401. 12 Pick. 496; 4 Cowen, 26. 5 Cowen, 284. 17 Wend. 423. 5 Hill, 32. 1 Parker's Crim. Rep. (N. Y. 1854) 256.) And it is not the doctrine of Missouri. (8 Mo. Rep. 165. 16 Mo. Rep. 391. 19 Mo. Rep. 227.)

LEONARD, Judge, delivered the opinion of the court.

This was an indictment for a felonious assault and shooting, with intent to kill, upon which the defendant was convicted and sentenced to two years' imprisonment in the penitentiary. After the verdict, a motion was made for a new trial, upon affidavits that one of the jurors, after the jury had retired from the bar to consider of their verdict, was seen on the public square, unattended by an officer, in conversation with a bystander; but upon what subject, and how long, was not shown. The motion was overruled, and the record showing nothing more, the only matter for our judgment is the naked, dry question, whether this separation of the juror from his fellows is, of itself, without anything further, a sufficient ground to set aside the verdict, and we are all clearly of the opinion that it is not.

Mr. Wharton (Crim. Law, 1008,) says: “The general rule is, that the verdict will not be set aside on account of the misconduct or irregularity of a jury, even in a capital case, unless it be such as might affect their impartiality, or disqualify them for a proper exercise of their functions. An exception, however, formerly existed in England, and is still recognized in several of the United States, in felonies, where the jury separate, after the opening of the evidence. While, on the one hand, the present practice in England, and in a portion of the American courts, is to sustain the verdict, when the separation has been inadvertent, and no abuse has resulted from it, on the other hand, it has been considered, in several instances, that the mere separation, without permission, is, in itself, prima facie reason for a new trial.”

By the old law, “a jury, after their evidence given upon the issue, ought to be kept together, in some convenient place, without meat or drink, fire or candle, and without speech with any, unless it be the bailiff, and with him only if they be agreed.” (Co. Lit. 227.) A different rule, however, has since been acted upon, and now, according to the English practice, juries are permitted to separate, in all cases, except felonies, whenever, in the discretion of the court, it seems proper; and their mere dispersion or separation, with or without leave, is no ground for setting aside their verdict. ( Rex v. Woolf, 1 Chit. (Eng. Com. L. Rep.) 401. The King v. Kuincar and others, 2 Barn. & Ald. 592.) In felonies, however, the old rule still prevails in England, except in cases of overruling necessity; but as new trials are never allowed there in felonies, the effect of an inadvertent or even wilful separation of one or more of the jurors from his fellows, has never been a subject of discussion there. In the United States, however, where motions for new trials are entertained in cases of felony as well as of misdemeanors, this matter has been frequently under discussion, and the decisions are very far from being uniform.

In some of the states, the mere separation, without any thing more, is a sufficient ground for a new trial. This was so settled in Virginia, in an early case, ( The Commonwealth v. McCaul, 1 Va. Cases, 304,) and has been followed in some other states.

In New Hampshire, the rule adopted is, that the separation is no ground for setting aside the verdict, when the court is satisfied the prisoner has sustained no injury; yet, the...