The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29

He talks with the juror as to the effect of that
telegram. Now if these affidavits are admissa-
bic at all evidence, there are counter afh-
davits very clear aud explicit from. mr. Davis,
the foreman of the jury, and Mr.. Messick him.
self. There is no ground think upon such of
the afidavts as may be fairly considered as ev-
idence that would take the case out of tisis rule
as laid down in Archibald on Criminal Cases; or
the rule extracted from cases laid down in Wat
ern,an on New Trials. that .'howevar improper
the conduct of a juror may have been. yet if it
does not appear that it was occasioned by the
prevailing party, or any one in his behalf. if he
did not intend any improper bias upon the juror
mind. the court cannot say that 1T either had or
may have been affected unfavorablv to the party
asking for new trial, and the verdict ought
not to be set aside"
think it would have been very extraordinary
if the court had not allowed that Information to
go to the juror. l think L should have done
If had presided at the trial, and think I
should have allowed him to send the answer.
And so Tar from the argument being sound one
deprived of that power to deliberate and think
that makes competent juror in cases of this
kind should say, judging oy my own observa-
ton of the human family, that If that telegram
gave him distress. as Of course it did, it put him
in frame of mind to feel very kindly rather
than harshly toward the defendants. But apart
from any mere speculation upon the subject
there is nothing in evidence, far as it is COM
petent. that ought to induce the conclusion
that the receipt of that telegram influenced in
the slightest degree the verdict of the jury.
/ come now to ground marked eight and a
half, which relates TO the misconduct of certain
jurors. the names of whom are unknown, but
the facts in relation to whom are set forth in
the affidavts fled herewith of William F.
Martin and Fred Mitchell. wherein it is alleged
and is now here charged that the said jurors,
after the cause was submitted to them partook,
without leave of the court. of spirituous liquors.
The afidaviss of Martin and Mitchell upon that
subject are substantially the same, except that
they prove different drinks. Martins affidavit
is .,s to the effect sbs that he ao+. is ~ head cad
city of Indianapolis and the jurors in
the above entitled case took their meals In what
is known as the ordinary IL said hotel, from sup
per on Friday night. Jan 30, to supper on Satur-
day night, Jan. 80. inclusive, and that when the
jurors occupied the ordinary no other guests
were allowed therein, etc. These affidav1ts de-
scribe two different occasions. 1t from
leading them that they exclude the idea that
any outsider was tampering with the jury either
on the part of the government or on the part of
anybody else or on the part of the defendant
than the whisky was taken by these jurors IN
the presence of the other jurors. So that the
proposition which is made by counsel for the
defendants is that without any inquiry as to
the effect of this liquor upon the mind
of tho juror who took it, although it might not
have affected him, still that the mere taking of
drink of whisky by juror in the presence of
the bailiff and of his fellow jurors constitutes
sufficient reason for setting aside the verdict.
They refer us upon that subject to decisions by
the State of Indiana. The first case upon that
subject is Creek against the State in oath In
diana which hardly sustains that view While
the jury were celebrating upon verdict in
that case some of its members without leave of
of the defendant, and without being at
tended by officer of the court
separated from their fellows and went where
there were other persons and drank whisky.
That Is a very strong case of misconduct on the
part OF the jury. 1t was shown by afidavits
that they did not drink to intoxication, and that
the influence of the liquor was not perceptible
upon them, and that during such absence they
with. That case is, hardly sufficient to sustain
the view which counsel take Probably the
strongest case in the mere words of the Court
which they present is the case in 35th Indiana,
of Davis against the State. And that was a
different case. After the jury were
charged and put in the care of the bailiff the
bailif with two of them went to aliquor and bill
iard-saloon where other persons were drinking
and playing billiards aud the bailIf procured for
each one of them brandy, etc, which was paid
for by one of them. The evidence does not show
where the other jurors were at the time when
the two with the bailiff in the saloon.
There was no attempt to show that the jurors
were really suffering with the disease of which
they complained, how much liquor they
drank what effect it had upon their fitness to
deliberate upon the case, or in any other way to
break the force of the showing made by the de-
PENDANT, and the court in this case held that
cording to the authorities, such misbehavior
was sufficient to set aside the
diet. and the authorities are abundant and salts
factory.
Now you observe there drinking away
from the balance of the jury, In the presence of
others, without any proof as to where the other
urors were.
I am not prepared to say that that ruling
upon the facts Of that case was wrong. But in
the seth Indiana there is the case of Pratt vs..
The State, in which the facts are thus stated by
the court: The trial of the occupied
week; during the portion of 1t occupied in hear
ing the evidence and argument in the case the
jury was permitted to separate during the ad-
tournaments of court 1t Is established by Aft
davit read on the hearing or motion for new
trial that one of the jurors during one or two
of the adjournments drank glass of
whisky of his own motion and at his own ex-
pense. No one interested in the trial was in
any way instrumental in furnishing the liquor.
or associated with him in drinking.
But it is conclusiuely shown by the afidavits,
that the Juror was perfectly sober and strictly
attentive to the discharge of his duties q
juror. from the commencement to the end of
the trial. The court held this was not sufficient
cause for a new trial
In later case of the Supreme Court of In
diana--it is true it is a civil case. but in ques-
tions of this sort do not know that the rule
should be diferent-in support of this reason
affdavits and counter-affidavits were filed by
which it appears that some of the jurors under
stood that when the court finished its charge to
them 1t gave them a short recess, rs 1t had fire.
Quently done before during the progress of the
trial. Under this impression two of them went
down stairs to the back door of the courth house
and Immediately returned; said nothing to any
person and person said anything to them
One of the jurors went out of the courthouse
and went to a saloon and drank glass of
beer; while.there was asked what was his hurry
He answered that he the jury
and had to hurry back. and Immediately
to the jury..room, which was all that
was said by or to him, or done by him while
absent. The jurors were all in the jury-roo
and in charge of the bailiff within four minutes
after the Court had finished its charge to them,
where they remained in charge of the baiff un-
til the verdict was completed. The evidence
shows that no attempt was made by any person
to tamper with either of the Jurors while absent.
and that the one who had taken glass of beer
was not perceivably intoxicated thereby nor in
the least disqualified from dischsrging his duties
as juror in the case, and the verdict was not
set aside That is the latest case in the Supreme
Court of Indiana, to which my attention has
been called. These the decisions in this
State, and they are perhaps more liberal to
the accused in this STATE than they are
in many other States-certainly more
liberal than in the courts of tho
Of the United States The rule established in
the courts of Indiana is In substance this, as I
it, While the fsct that juror drinks
while he is in charge of case is a circumstance