State v. McCoil, 7570.

• Decision Date: 18 November 1935
• Docket Number: No. 7570.,7570.
• Citation: 63 S.D. 649,263 N.W. 157
• Parties: STATE v. McCOIL.
• Court: South Dakota Supreme Court

63 S.D. 649

263 N.W. 157

STATE

v.McCOIL.

No. 7570.

Supreme Court of South Dakota.

November 18, 1935.

Appeal from Circuit Court, Aurora County; R. C. Bakewell, Judge.

Vernon McCoil was convicted of robbery in the first degree, and he appeals.

Reversed.

A. J. Cassidy, of Lake Andes, for appellant.

Walter Conway, Atty. Gen., and W. E. Weygent, Asst. Atty. Gen., and V. P. Harris, State's Atty., of Plankinton, for the State.

ROBERTS, Judge.

Defendant was convicted of the crime of robbery in the first degree. Misconduct of the jury and bailiffs was made the ground of a motion for new trial. It was shown by the testimony of the two bailiffs who had charge of the jury during its deliberation that after the case had been submitted, and before an agreement upon a verdict had been reached, a juror procured from the bailiffs the volume of the South Dakota Revised Code of 1919 containing the statutes with reference to the crime for which the accused was on trial. From the judgment and order denying motion for new trial defendant has appealed.

[1] The court must instruct the jury before they retire upon all matters of law which is deems necessary for their information in giving their verdict (section 4903, Rev. Code 1919), and if they have occasion for further information upon a point of law arising in the case they may return into court, and in the presence of or after notice to the state's attorney and the defendant or his counsel receive additional instruction (section 4909, Rev. Code 1919). Jurors have no right to undertake an independent investigation of the law in the jury room. 16 R. C. L. 301; Harrison v. Hance, 37 Mo. 185;Newkirk v. State, 27 Ind. 1;State v. Smith, 6 R. I. 33;Merrill v. Nary, 10 Allen (Mass.) 416;Johnson v. State, 27 Fla. 245, 9 So. 208;State v. Kimball, 50 Me. 409;State v. Kirk, 168 Iowa, 244, 150 N. W. 91. In Newkirk v. State, supra, it was shown by affidavit that after the jury retired and before agreeing upon a verdict they requested their bailiff to procure a volume of the Penal Code and that the bailiff complied with their request. The court said: “The facts must be determined from the evidence given upon the trial, under the supervision of the court. Questions of law arising in the cause may be argued by counsel, and the trial is closed by the charge of the court to the jury, upon 'all matters of law which are necessary for their information in giving their verdict.' From these sources of information, they must determine the law of the case, and cannot be permitted to take to their room common law authorities for the purpose of ascertaining the law. Such a practice would be inconsistent with the whole theory of correct trials by jury, and would lead to the most pernicious consequences.”

There is an entire absence of showing that the jury found or read provisions of the Code bearing on the case, and the Attorney General contends that it is not shown by the evidence that the irregularity affected the result or was prejudicial to the defendant. It is true that every irregularity of which the jury or bailiffs may be guilty will not vitiate the verdict; it may or may not be prejudicial. Courts generally have not gone so far as to hold that the mere presence in the jury room of a copy of the statutes or of the reports of court decisions is ground for setting aside a verdict. State v. Hopper, 71 Mo. 425;State v. Stevenson, 74 Kan. 193, 85 P. 797;Lovett v. State, 60 Ga. 257, 258. After a jury had agreed upon a verdict, although it had not been formally rendered in court, it was the conclusion of the court in State v. Wilson, 40 La. Ann. 751, 5 So. 52, 1 L. R. A. 795, that the procuring of law books by jurors did not require a reversal of a conviction. To the same effect is Graves v. State, 63 Ga. 740, where jurors after having agreed upon a verdict procured a copy of the code to enable them to put their verdict into proper form.

[2][3][4][5] It is the settled law of this jurisdiction that...