Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-03-13

In Iowa, the earlier cases assert the doc
trine a. heretofore stated. although by the
Code Of 1851 it was provided that IN appli.
cations for new trials tine afidavits Of jurors
may be taken and used in relation to such
application. Cook ct al. '. Sypher, Ssd
lows, AS4. In the Revision OF 1850, that
section Of their Code was omitted; but it,
and the decisions upon, IT, seem to have
brought about the Iowa doctrine announced
in Wright '. Ill. Co, in Goth Iowa Reports.
That modified rule is "that afidavits of
jurors may be received for the purpose Of
avoiding a verdict,-to show any matter
occurring during the trial, or in the jury.
room which does not essentially inhere in
the verdict itself; but that such afidavits
to avoid the verdict, may not be received to
show any matter which does essentially in
here in the verdict itself" See also Fuller
'. X. Il. Co., 81 Iowa 2ll; Cowles v. r. r.
Co., 81 Iowa, SIS. Perry '. Bailey, IL
Kansas follows and adopts this doctrine.
But II is worthy of mention that the case
Of Grinnell '. Phillips l Mass. $50. quo
ted in goth Iowa and in 18th Kansas, has
been overruled by series Of later decisions
in Massachusetts,.
In Ohio it has been held that where there
is evidence aliiundc of misconduct OF the
jury, their own testimony may be received,
not only to limit and explain, but also to
enlarge aud ~aggravate such misconduct.
Farrar v. The State, 2Ohio ST., 81.
1 am aware, also, that Wharton, in com-
menting on the rule, expresses his views q,
to a modification from necessity aud when
gross injustice has been wrought" but to
support this view, in the cases quoted by
him, his chief reliance seems to be upon the
leading lows case, supra.
1t Is important to note, that, in the case
in 9th Indiana reports, the misconduct, or
%irresularity, was not attempted to be shown
by the afidavits Of jurors. That would
have been contrary to the rule previously
declared in that state.
In United States v. Reid, 12 How, 361,
the af1davits of two jurors, offered in sup
during the trial they read q report Of the
evidence in a newspaper, but that it did not
influence their verdict. Chief Justice
fancy, in delivering judgment, abstained
from laying down o general rule as to
the reception of the afidavits of jurors, or
examining the decisions upon the subject,
because the court were of opinion that
the facts proved by the jurors, If proved
"by unauestjoned testimony. would be no
ground for a new trial. There was moth
ing in the newspapers calculated to intu
"ence their decision, and both of them
"sworc that those papers had not the slight,
"est influence upon their vercict.'
The court did not decide, but expressly
declined deciding, whether the sfidavits
were or were not admissible. II they were
rejected, the verdict of course stood. II
the facts stated in them should be assumed
as proved. there was nothing in them t
inpeach the verdict; and this, not merel.
because the Jurors we're not influenced, bu1
also because there vas nothing 10 the
papers calculated to influence them.
From this review of the authorities herr
accessible, it cannot be doubted upon which
scale the weight of authority rests. The
sages Of the common law, it ID seen, uttel
no discordant or uncertain sounds. Our
codes, on the subject of new trials. exactl!
correspond with those 10Y in force il
that it is wlsest to hearken to the voices 9
enlightened observation and experience
coming from so many quarters, and safes
to follow the footsteps of such great leg,
luminaries as Mansfield, Kent, Shaw, an
Others whose names have been mentioned
The policy and reason of the rule, in VI
holding verdicts, far outweigh the objec
tions urged against it. A verdict, as tn
name imports (reredictuml. is taken in theor
of law to be absolute truth. and it is impol
tant that it should be thus regarded. Al
communications among the jurors are conf
dental; they are intended TO be secret, an
it is best they should remain SO. When
verdict is recorded, the Jurors cease To al
, under their oaths, in their official capacit
as part of the court and as individual cit
, zens, freed from the burden. of their oblig,
tons and responsibilities, they should a,
afterwards be permitted 10 appear as simp
witnesses to impeach or undo their solem
= acts.
y The afidavits of these two jurors, Nessr
! English and Dale, arc therefore, inadmiss
! BILE, in this case, to prove the alleged mi
:. conduct or irregularity.
= But even il the precedent in U. S.
{ Reid should be followed, and these afid
! wits examined, l am Of the opinion that tn.
q would not, under the peculiar ,circul
u stances, show sufficient ground fora ne
trial.
By the Code of Criminal Procedure, Sc
Z ton 423, the court ''has power to grant
, new trial, when 3 verdict has been rende
: ed against the defendant by which his su
stantiiM rights have been prejudiced." Ant
ukdtus III ocCtlOu ooSS ~ CAAOA VI uLotds
in any proceeding renders it invalid, u,
less 1t has actually prejudiced the defent
ant, or tended to his prejudice, in respe
to a substantial right" By Sub. 3
section 42s, a ground for a new trial i
when the Jury have ''been guilty of an
misconduct by which a fair and due cor
} sideration of the case has been prevented
The facts are, that, on the 22nd of De-
ember, the CAGE was given TO the jury, an
they then retired for elaboration, takir
with them the written charge which hs
been given by the couit.
In the afternoon of the next day, Sunda
the 23rd, they sent to the Judge a write
request for further instructions; and afte
wards, in the presence Of the parties at
their counsel, they handed to the Judge,
open court, q paper stating that they cou
not agree, and asking for answers to certa
questions Of law. The judge declined
give further instructions at that time. f
reasons written by him and read to IL
jury. In the forenoon of the next de-
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