State v. West

• Decision Date: 13 June 1905
• Parties: STATE v. WEST
• Court: Idaho Supreme Court

81 P. 107

11 Idaho 157

STATE v. WEST

Supreme Court of Idaho

June 13, 1905

SEPARATION OF JURY AFTER SUBMISSION OF CASE-AFFIDAVIT OF JUROR EXPLAINING HIS CONDUCT-SHOULD BE CORROBORATED.

1. Where a juror deliberately separates himself from the other jurors after the case has been finally submitted to the jury and leaves the bailiff and remains out of view of the bailiff and other jurors for a period of from three to five minutes and his whereabouts and conduct during that time are unexplained except by his own affidavit, and it does not appear that the absence was the result of necessity, accident or mistake, a new trial will be granted.

2. The uncorroborated affidavit alone of a juror who deliberately separates himself from his associates and bailiff in disregard of the law, as well as the admonitions of the court, should not be accepted as a satisfactory explanation of his whereabouts and conduct during such separation.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, in and for the County of Elmore. Honorable Lyttleton Price Judge.

Defendant was convicted of the crime of grand larceny and sentenced to imprisonment in the state penitentiary for a term of four years. From the judgment and an order denying his motion for a new trial, defendant appeals. Reversed.

Judgment reversed and a new trial granted.

N. M Ruick, W. C. Howie and C. C. Cavanah, for Appellant.

The jury separated after the case was finally submitted to them for consideration, and after they had retired to deliberate upon their verdict. A review of the facts disclosed by the affidavits made by several persons and presented on defendant's motion for new trial will show that the jury separated as stated. Our statute expressly provides that, after the jury has retired to deliberate upon their verdict, they must be kept together. (Idaho Pen. Code, sec. 5480, subd. 3.) The separation of the jury in a criminal case after retiring to deliberate upon their verdict is made a ground for a new trial by the statutes of this state. (Idaho Pen. Code 1901. secs. 5522, 5722, subd. 3; People v. Backus, 5 Cal. 275; People v. Brannigan, 21 Cal. 337; People v. Thornton, 74 Cal. 482, 16 P. 244; People v. Hawley, 111 Cal. 78, 43 P. 405; People v. Adams, 143 Cal. 208, 101 Am. St. Rep. 92, 76 P. 954; State v. Place, 5 Wash. 773, 32 P. 736; Darter v. State, 39 Tex. Cr. Rep. 40-47, 44 S.W. 850; State v. Mowland, 119 Mo. 419, 24 S.W. 1016; State v. Parrant, 16 Minn. 178; Weis v. State, 22 Ohio St. 486-491; McLain v. State, 10 Yerg. 242, 31 Am. Dec. 573; State v. Populus, 12 La. Ann. 710; Peiffer v. Commonwealth, 15 Pa. 468, 53 Am. Dec. 605; Abbott's Criminal Briefs, 286; 2 Spelling on New Trial and Appellate Practice, sec. 59; Daniel v. State, 56 Ga. 653.)

J. J. Guheen, Attorney General, K. I. Perky and Edwin A. Snow, for the State.

The statute is not absolutely and at all events ground for a new trial. But each separation must be judged by the facts surrounding it; the fact that one man steps away a short distance under such circumstances that prejudice could not possibly result would not be a ground for a new trial; the fact that jurors separate so as to become subject to prejudicial influences would be ground for new trial. It seems to us that this is the only ground sanctioned by modern authority and upheld by reason. Practically every state that has a statute similar to ours follows it. State v. Harris, 12 Nev. 414, where the court says: "Where it is shown to the satisfaction of the court that there was no misconduct on the part of the jurors, the mere separation of the jury is not ground for a new trial." To the same effect see Goersen v. Commonwealth, 106 Pa. 477, 51 Am. Rep. 534; People v. Symonds, 22 Cal. 352, where there is a very good discussion of the principle of construction of a statute like ours. (People v. Moore, 41 Cal. 238; People v. Wheatley, 88 Cal. 114, 25 P. 1109; Territory v. Hart, 7 Mont. 489, 17 P. 718; Territory v. Clayton, 8 Mont. 1, 19 P. 293; People v. Kelly, 46 Cal. 355; Stewart v. State, 31 Tex. Cr. Rep. 152, 19 S.W. 908; Bylew v. Commonwealth, 91 Ky. 200, 15 S.W. 356; Territory v. King, 6 Dak. 131, 50 N.W. 623; Robinson v. State, 109 Ga. 506, 34 S.E. 1017; State v. Igo, 21 Mo. 459; State v. Pollard, 14 Mo.App. 583; 1 Spelling on New Trial and Appellate Practice, p. 267; 12 Cyc. of Law & Pr. 1904, p. 724.)

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

OPINION

AILSHIE, J.

It is contended by appellant in this case that there was such a separation of the jury after the case had been finally submitted to them for their consideration as to entitle him to a new trial. The facts constituting the separation are substantially as follows: The case was finally submitted to the jury about 11:30 o'clock A. M., February 24th, and they thereupon retired to deliberate as to their verdict. Between 12 and 1 o'clock they were taken by the bailiff to their dinner, and about 1 o'clock they all came out of the dining-room and stood on the sidewalk in front of the hotel. While the jury were standing on the sidewalk in charge of the bailiff, the juror Canfield, without saying anything to anyone and without any permission, left the bailiff and the remainder of the jury and walked down Main street in the town of Mountainhome, a short distance, and then turned the corner and proceeded up another street at right angle to Main street for a distance of about one hundred and fifty feet from the corner and entered a store. The juror was gone for a period of about five minutes, and then returned and joined the other jurors who had remained during the meanwhile in front of the hotel. The prosecution furnished the affidavit of the bailiff to the effect that he remained with the eleven jurors in front of the hotel while Canfield was gone, and that they did not at that time discuss the case in any respect whatever, and that the juror Canfield was out of view of the bailiff for a period of from three to five minutes. One of the jurors made an affidavit to the same effect as that made by the bailiff. The state also produced the affidavit of the juror Canfield in which he deposes to separating from the remainder of the jury and "that to the best of this affiant's belief he left said jurors and went about three hundred feet to a store run by John Joseph, after a sack of tobacco; that about one hundred and fifty feet he was not in sight of the bailiff of the said jury; that during the time that this deponent was separated from the said jury, which was from three to five minutes, that during the said time he was absent this deponent is positive that he spoke to no one about said case or made any allusion thereto, and that no one spoke to said deponent about said case or made any allusion thereto; that nothing transpired during said absence that would prejudice the mind of this deponent for or against the defendant."

John Joseph testified that he was the proprietor of the store that Canfield claims to have visited, and that he "believes that he was in charge of the said store between 12 and 1 o'clock on Wednesday, the twenty-fourth day of February 1904, and he is positive that if Hiram Canfield bought a sack of tobacco...