The republic., 1851-09-09

serious, those whose happiness is more or less In
volyed in their fate are in the same danger and
yet may be UNCONSCIOUS Of II. II will require
strong case 10 inda5e my interference. This re-
mark ID general, and not intended for THIS S--S,
which, In this particular, is controlled by fixed
principles. From the view take of this reason 1t
VIII be unnecessary to go into the aftidavits hled
In support OF and against IT. There are certain
rules which courts have adopted in considering mo
tions for trials on this ground, of which will
mention three: | The evidence must have been dis
covered since the trial 2 IL must be such reason
able diligence the part Of the defendant could not
have secured at the trial g. IL must be material
in its object, and not merely cumulative and cor
roboratiye collateral II is not easy 10 imagine
that the prisoner was not acquainted with the
quality and condition Of his mothers mind, hat-
ing lived with her or her all his life, 80 far as
we know, except when in the public service in
Mexico. She was herself, moreover, a witness on
the trial, Supposing, however, that his want of
observation his early age, or fial affection should
have blinded him to the alleged imbecility, or in
Icipient insanity. of his only surviving parent,
would not the least degree of diligence, the
inquiry since made, have secured the proposed cvi
dence at the trial Clearly. Mrs Wood lives and
was living in Washington at the time Of the trial
the Witnesses whose afdavits are on file live either
here or IN Alexandria. ls not the evidence
cumulative or corroboratiye merely Ii 10 said by
the prisoners counsel that inbecility of mind, or
an early stage of insanity, in Mrs. Wood is offered
to be proved, and it is contended that this is an
independent fact. What is II expected to estab
lish by II No separate, unconnected link in the
chain of the defence, but TO strengthen the ev-
dence III support OF the prisoners insaniiyto add
to the probabilities OF his arrangement of mind
because of an ancestral taint New trials have
been ''granted for the discovery of new evidence
to point which was presented on the former
triaP' IN case of surprise; 30 where the new cvi'
dence is of different kind or character from that
adduced on the trial. viz positive and direct, in
stead Of fcircumsiantial." Guyott us Butts, 4 Wen
delps r., 579; Wharton's Cr. Law, Co.,. This is
not case of surprise, for the evidence of insanity
was broached and relied on by the prisoner nor
Is the proposed evidence of different kind char
acter from that adduced though undoubtedly il is
evidence of separate fact, which, however, it is
supposed will give additional force to that Of the
insanity of the prisoner which before the jury
on the trial, and that s, or can be- its only egi
mate end.
am OF opinion that, under either of the three
rules stated-espccially the second or third-the
court ought not TO grant new trial for the SIKH
reason assigned.
9 4, 8. These reasons, and the evidence in re-
laton 10 them are SO intermingled that the coun-
sci on both sides found it most convenient to argue
them together, and the court will pursue the same
course. In looking carefully over the reasons and
the testimony, it is thought it will conduce to per-
spicuty to consider them under the four heads fol-
lowing:
l. The legal effect of the mere separation of the
jury, orr as the counsel expressed it, the separation
OF the jury per Sc.
2. The legal effect of newspapers delivered to
them, containing not articles respecting the
trial-strictures on the conduct of the jury any
of the body.
3. The legal effect of oral communications to
one or more OF the jurors, concerning the trial or
not.
d. The legal effect of attempts to influence or con-
troll the finding of one more Of the jurors by
means of the contents of such newspapers, and by
means OF such oral communications 80 far as they
respected the trial.
l. The mere fact of the Jurors being in different
rooms on the second floor of the City Hall, all of
which opened into a common passage occupied by
the baiifis in charge, from which there was but one
outlet, was not Objectionable. Kennedy v. Com, ,
Virg. Cas-, So The evidence in this case shows n
separation of Mr.. Wardell from his brother Jurors
on Thursday, 7th August, when Mrs. Wardel and
Thomas Plumsill, one of the bailifIs, swear that
Mr.. Wardell was brought down stairs by him to
see his wife, where he remained sometime with
her, the bailif being with them; and Mrs. Turner
and Thomas Plumsill prove that she was in the
company OF her husband, Mr.. Turner, for about
fifteen minutes, out of the iury-room and down
stairsboth the baliffs being present she ga ys;
and Thomas Plumsill, he states the interview.
The watchfulness with which the deliberations of
juries were guarded, and confined to the law and
evidence Of the cause committed to them has been
so great-and 80 it is now in Virginia (by the
weight OF authority and in Tennessee, that where
there was unauthorized separation of the jury, 1t
was not necessary to set aside the verdict to show
an actual tampering, conversation the sub
mere separation without permission appears al one
time, and that not very remote, to have been con
sidered PriHa Jacie evidence of misbehavior. Is
Johns. r., 2lS. But the better opinion now is, that
to vitate the verdict reasonable suspicion of abuse
must exist" Pcoplev. Douglass, Governs r., 90
Horton v. Horton, Governs R., $50 Oliver v.
Trustees, Governs r., 2S4. People v. Ransom, 2
Wendcll's r., 423. So in New Hampshire, State V.
Prescott, N. Hamp. R., 294, where three several
jurors at different tmes, went 10 the post office,
and one OF them went also 10 a store-a fourth to
public house to get clothing-a fifth twice to a
friends house, all accompanied these occasions
by an officer who had them in charge except that
the fifth, on one of his visits, attended by an
officer not sworn to keep the jury, who did not
turn with him all the way to the Jury room, but
left him to proceed alone when within short dis
lance of the house-held that, however Irregular
all this was, proceeding the court thought from
mistake, still, as the officers testified that there
no conversation with the jurors relative to the
trial during the several absences, and as there
evidence on the part Of the prisoner to rebu this
trial would not be granted. This
court decided the saae point in the same way in
United States v. Shuser, at March term, 1919.
The naked separation of the jurors, then, fur
nishes no cause for a new trial.
2, 3. Newspapers conversations II results from
What has been said, and will Immediately follow
that however irregular the reading of newspapers
by, or the holding OF conversations WITH the jurors
If the former contained nothing respecting the
trial, the latter did not it, the court will
not Interfere with the verdict. When the news
papers contain remarks in relation TO the trial,
when the conversations respecting it, how
the decisions? In United States v. Gilbert ct al .
SUNNI. R., 2l, it was regarded an irregularity
IN the jury to read newspapers after every thing
relating TO the trial was cut out Of them; but not
sufficient to set aside the verdict. 1t would
hat if the papers had not been Invested of the OBJ
parts, the opinion OF tho court would
have been different There is a case, Rex v. Bur
lett, Gndicted for extortion,) Id. Raym. r., las,
N which the court say, it is not enough, in order
% set aside verdict to show that printed papers
ending to, create prejudice against party, even
n criminal case, were circulated by strangers;
out opposed to it in principle is the modern
,lS22) of Coster v. Merest, Brod Bing. R.. 272,
civil case, in which it shown that handbills,
efiecting the plaintiffs . character, had been
distributed in court, and shown to the jury the
lay of the tria-the court granted n trial, and
would not receive from the jury afidavits in con-
though the defendant denied all know
edge of the handbills State v. Hascall, 8 New
lamp r., 325. The defendant was indicted for
,erjury and convicted motion was madc for
lew trial, because (among ether reasons) seer
ain papers, calculated to make unfavorable i'm
'ression on the jury, had been exhibited and read
~ Cyrus Fits, the prosecutor, at several public
,laces in Portsmouth during the week Of the trial,
md just before il, in the presence of several per-
ons; and that some of the jurors boarded at those
'aces; and part OF the witnesses believed that two
a thp hAar tla HIan -..lF