State v. Wright

• Decision Date: 07 October 1896
• Parties: STATE v. WRIGHT ET AL.
• Court: Iowa Supreme Court

98 Iowa 702

68 N.W. 440

STATE

v.WRIGHT ET AL.

Supreme Court of Iowa.

Oct. 7, 1896.

Appeal from district court, Hamilton county; S. M. Weaver, Judge.

The defendants were jointly indicted, tried, and convicted of the crime of maintaining a liquor nuisance, and, to reverse the judgment of the court below, they appeal. Affirmed.D. C. Chase, for appellants.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

DEEMER, J.

Error is assigned upon the misconduct of the jury--First, in separating before agreeing upon a verdict, and while in the charge of an officer; second, on account of a statement made by a juror to his fellows while in the jury room, and before an agreement was reached. It appears from the record that after the cause was submitted, and before a verdict was reached, the bailiff took the jury to an hotel for supper; that after they had eaten their supper, and as they were starting to return to the courthouse, Jurors Lee, Fairchild, and Lakin, by permission of the bailiff, separated from the other jurors, and went to the post office. As Juror Lee came out of the post office, he met Judge Hiatt and one Weston, and one or both asked him what the jury had done. Lee replied that they had done nothing as yet, and immediately returned to the courthouse, where he rejoined his fellow jurors. It does not appear that the other jurors, who left the main body at the hotel, had any conversation with any one, but it is shown that they returned to the courthouse immediately after going to the post office. It also appears that none of the jurors who went to the post office were gone any length of time, and it is further shown that they rejoined the panel at the courthouse, reaching there at nearly the same time as those who went directly from the hotel. The statutory provision relating to the separation of the jury in criminal cases is as follows (Code, § 4442): “After hearing the charge the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place without meat or drink, water excepted, and not to suffer any person to speak to or communicate with them themselves unless it be to ask them whether they have agreed upon their verdict, and not to communicate to any one the state of their deliberations, or the verdict agreed upon, until after the same shall have been declared in open court and received by the court, and to return them into court when they shall have so agreed upon their verdict, unless by permission or order of the court, or they be sooner discharged.” Now while this statute does not, in express terms, require that the jury be kept together after the submission of the case, as does the section of the Code (section 2791) relating to civil cases, yet such is its fair import; and, for the purposes of the case, it may be conceded that the provisions are the same. It seems clear, then, that this statute was violated in this case; and the question which arises is, did this misconduct constitute ground for new trial? The case of State v. Wart, 51 Iowa, 587, 2 N. W. 405, seems to settle this inquiry. We there held, under a somewhat similar state of facts, that in the absence of a showing of prejudice the separation was not such misconduct as to vitiate the verdict. In this case there is not only no showing of prejudice, but affirmative proof that there was none. See, also, State v. Bowman, 45 Iowa, 418;State v. Fertig, 70 Iowa, 272, 30 N. W. 633;State v. Griffin, 71 Iowa, 372, 32 N. W. 447. The communication had by Juror Lee with Judge Hiatt or with Weston was clearly without prejudice, and constituted no ground for a new trial. See cases above cited; also State v. Fertig, 84 Iowa, 79, 50 N. W. 545.

2. The next complaint made is that one of the jurors, after the submission of the case, and while the jury was deliberating upon its verdict, stated to some one or more of the jurors that “he knew liquor had been sold at this place, as he had drank it there himself, or words to that effect.” The two jurors who testified to this statement each said that they did not consider it in arriving at their verdict, and that it had no effect upon them. It is not shown that any of the other jurors heard these statements, or that they were in any manner influenced by them. It seems to be the rule in this state that such misconduct is not enough to vitiate the verdict, unless prejudice be shown, or sufficient grounds appear for presuming prejudice. State v. Woodson, 41 Iowa, 425;State v. Beasley, 84 Iowa, 83, 50 N. W. 570. Prejudice was not shown, and we do not think that we ought, in the face of the ruling of the trial court, to presume any. The court trying the case is necessarily invested...