The republic., 1851-09-09
THE REPUBLIC.

sit - sufclent Tor THIS case tnat the exhibition OF
those papers was highly improper, and that there
Is possibility that some OF the jury may have heard
something Of the statements contained in them, in
consequence of such exhibition, before the trial was
had.
"We should not hesitate moment to set aside
verdict obtained by party in a civil case, under
such circumstance. n. II. Rep, 474 Perkins
v. Knight, l3 Mass, 2i5; Knight v. Freeport;
and, although il would be partly TO punish his
misconduct, and the State Is here in no fault, yet
we think the respondent in a criminal case, where
the law humanely presuInes innocence, is, within
the discretion of the court, under circumstances
like the present, entitled to the benefit of the same
rule. And il is on this ground, and on this alone,
that set aside the verdict, and order the case
transferred TO the common pleas for new trial."
Conversations rest on the same footing. In Mas
sachusetts, "when jury In capital trial had re-
tired with the cause, of the constables having
them in charge, and stranger, carried reasonable
relTeshment into their room at their request and
with the consent of the constable but no converse
ton respecting the cause took place, il was held
that the prisoner, who was convicted, was not en-
titled TO new trial. Com. V. Roby, u Pick. r.,
196 have not been able, after endeavoring TO do
So TO obtain II Pick, bat take this decision from
Wharton's Cr. l. 646. In New York, where on a
trial for murder two of the jury separated from the
others, ate cake, drank spirituons liquor, though
not enough 10 affect them In the least and one of
them conversed on the subject of the trial, held
that, although separation was notin itself fatal the
drinking of sprituous liquor and converting on the
case sufficient for new trial. People v.
Douglass, Governs r., 26. The evidence of the
conycrsing was not very decisive, and the drink
ing most relied on. On principle, fortified by
these and ether decisions, (some Of which will he
cited hercaer,) should hold that the delivery of
newspapers in which the trial and its circumRtan.
were discussed and the holding of cony creations
(perhaps more nliscbieyous) with one or more of
the jurors respecting tie trial, or either Of them,
would, as general ro,e, be fatal to verdict of
conviction In this, however the court is not fur
nished with any specific information of the con-
tents of the newspapers, although il s clearly
proved by Mrs. Turner, Mr.. Henshaw and
Stephen Plumsill, that newspapers and especially
the Baltimore Clipper, were sent to and were in
tho possession of the jury. Apart from the
made Of thein at least of one mum
Der of The Clipper, which will be considered pres
emily, am therefore unable to judge what their
tendency was, or how likely they were to act on
the minds of the jury. The communication made
to MIR. Wardell by his wife in a whisper that es-
capped the bailif :" That man" had been to her
store and said to her that Mr.. Mann, when he got
clear from here, had better clear out, for he had
perured himself" considered as merely made to
Wardel and confined to his breast, would not
afford sufficient ground for trial. for he had,
a few days before, when the jury was polled, in
open court declared his opinion. However much,
then, condemn the sending of papers to tile jury
containing any thing in relation 10 the pending
trial, the holding OF conversations concerning il
with jurors, and how sound soever the reason for
granting new trial might be If knew the con-
tents of the papers, of opinion that the def
cheney of evidence Regards the newzp apers, and
the peculiar circumstances in which Mr.. Wardell
stood when he received the COMMUNICATION from
his wife, deprive both, in the aspect in which they
now looked at, of the weight they would other
wise be entitled 10.
There remains only this inquiry: What is the
legal effect of the attempts to influence control
the finding OF one or more of the jurors by means
of the contents of such newspapers, OF by means of
the said oral communication, far they or either
of them respected the trial? heard the testimony
in relation to these attempts with great surprise and
profound regret. The jurors are, do not doubt,
very respectable citizens, and nothing is farther
from my desire intention than TO cast censure
upon any of them. can readily conceive that
confinement of several days, without prospect of
relief (tor may presume the arguments on both
sides TO have been exhausted, } was attended with
mpatence, and perhaps some degree ofirritability
and might innoccntly, though, lrregularly, make
resort to newspapers, the contents OF which were
unknown, agreeable; but was not prepared for
any uac of them beyond amusement. The evil
dence establishes that when the jury were engaged
in delberatng their verdict, and after they had
been poled iii open court, one OF the body said to
and in the hearing OF the deputy marshal, who
had been sent by the Court 10 ask them if they had
agreed, ''Do you think it right or proper that
papers containing STRUCTURES on a juror should be
brought to the jury room and placed in his hands,
or brought to hia notice!" handing the deputy
marshal a newspaper. 1t was the Clipper, in
which Mr.. Henshaw, the deputy marshal read the
article referred to by enc juror who conplaned OF
being named in it. He added that he had been
| charged with perjury, and threatened with public
exposure in court, and spoke in terms of anger OF
the charge of perjury and the threats. The deputy
marshal also heard the juror alludedto (Mr Mann)
threatened with an exposure such as he himself
mentioned, and was asked by another juror,
Z" What ought to be done with Juror who had
taken the stand that he (Mann) had done?" To
which the deputy marshal, with great propriety,
replied, That the gentleman who addressed him
should forbear, be cautious, and believe Mr.. Mann
hah fn-ac
and Mann were talking, and three or four others
standing round them When the threat was used,
Mann said he did not care how soon they came
down into the court room. Although we do not
know what the precise contents of the Clipper were
we know what the juror, Mann, said; we know
that the Clipper newspaper was IN his hands; we
know that 1T contained structures on his conduct as
juror, and that he said it was brought to the jury
room and to his notice. If it is asked why II was
brought to his notice the answer must be be.
cause it contained those structures The charge OF
perjury was not in the Clipper, (Mr Hcnshaw and
). Plumsill;) how then did Mann learn 1t was
made against him? We hear of it outside of the
jury room only in the whisper Of jurors wife to
him, and, in the absence of oil other evidence,
would be led inevitably TO the conclusion that the
source OF his knowledge was that Whisper; but we
are not left to lnercnce for OF the ballil5 who
kept the jury informs the court that another juror
said in his presence, and in that of Mr. Mann, that
what Mrs. Wardell told her husband he communi-
Gated TO the rect of the jury" II strikes me
pose Of influencing Mann to ncutralizs this charge
by the verdict 1t surely could not have been to
fret and mortify hin--that would be very un
willing to believe. Nor is this all. II appears, by
the testimony of both the baffs in charge OF
the jury, that urgently were the structures
In the Clipper, or the charge of perjury, or both,
and the threats Of exposure pressed upon the atten-
ton OF Mann, as very nearly to have produced
personal conflict between him and Mr.. Turner, one
of his fellow jurors, causing great excitement and
anger in both, particularly in Mann. The words
that passed were not all heard, but the manner OF
the latter shows he felt resentment at some lndig-
nifty, real or supposed. We hear of nothing but the
above that could occasion the difference; and one OF
the baiiffs heard Turner threaten to publish Mann;
and the other bailif informs us that day or two
after Mann told him that Turner said he would ex-
pose him. | will not dwell upon what il pains me
TO cite-inentioning only IN general terms as
much as is necessary to an understanding of what
do not recollect any case approaching this in
and evidence. The nearest to it is
the Com. V. Hall, Leigh's r., Jl5. 1t was an in
dictment for passing n counterfeit bank note
placard charging one Of the jurors with counter
teiting placed TO be read by the whole
jury. The defendant was convicted, and motion
for new trial made because OF this placard,
&c. The court said: 4" We do not see any neces-