Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-02-21

nient OF the lower court anu oruerS
a new trial in the case of John S.
Murphy of Minot, we'll known in the
state as politician and public man,
and thus sets aside the judgment and
sentence of eighteen months in the
state penitentiary imposed upon Mr.
Murphy by Judge Pollock in district
court at Fargo, where Murphy was
tried, the case having been trans
ferred from Ward county. All of the
judges concur in the decision, but
Judge Spalding. Spalding files spe-
cial concurrence in the case, differ
ing from Judge Morgan and Fisk In
his view of certain features OF the
case, among them the admissibility
of testimony of similar offences to
that with which Murphy was charg-
ed, with a view to proving intent.
Judges Morgan and Fisk hold that
the testimony of these other offenses
was admissible for the sole purpose
OF proving intent, but Judge Spalding
holds that under the facts as set forth
in this special case, the testimony re-
garding the other offenses was not
admissible, and should not have been
permitted.
The principal point raised in the case,
however, that of the entrance of Judge
Pollock into the jury room and the
exchanging Of greetings and remarks
with the jurors, is the basis of the
granting Of the new trial. All of the
judges are agreed upon the impro-
priety OF this action, while absolying
the court from any animus or intent
in the matter. The court holds, how
ever, that the detisions uniformly
frown upon this practice, no matter
under what circumstances may ex-
list, and the decisions say that a new
trial must be granted where such a
fact is shown
The facts with regard to this mat
ter are that in the evening while the
jury was celebrating, Judge Pollock
was informed that some of the jurors
desired to communicate with him and
raped upon the door, which was op-
ened. Standing In the door the fol
lowing conversation ensued between
the court and the foreman of the jury:
BY the Court: Good evening, gen
tlemen; understand you want to see
me. Have you agreed?
By the Foreman: mo; think we
cannot agree"
BY the Court: Il will ask you to
consider the matter further. Good
night
Thereafter, and within short time
fhe jury agreed Judge Pollock in
the settled statement of the facts IT.
this case declared that his only OBJ
ject in going to the jury room was tc
ascertain whether anyone was sick
and unable to deliberate further, ant
that there was no intent or EXPRESSION
to convey an intent in any way to in
fluence the deliberations of the jury
Notwithstanding this, the supreme
court holds that the presence Of the
trial court in the jury room was. I'm
lawful and ground for a new trial. o.
this feature of the case, the cour
saws:
AS to the purity of the intention
of the Judge in going into the jur.
room in this case, and there havin,
the brief communication witt The jury
no certificate or proof is ne :assary s,
far as this court is concern !. as |
well knows that his uprightness an,
sincere desire to be absolutely jus
and fair in all cases, are beyond ques
ton. That admitted fact, however
does not meet the question before us
which is, did he do that which wa
beyond his judicial functions in RI
spect to the case. We are forced t
the conclusion that he did. His pre-;
ence in the jury room for any kind g
communication with the jury is nc
contemplated by any provision IF tn
statute. The opposite is The i.lain ii
ference from the statute. All con
munication to the jury IN open cou,
is subject to exception by the partie
IL deemed improper. If any colhrnun
cation is made to them in the jur
room In the absence Of the parties n
opportunity is afforded for objection
and exceptions, at the time. The d
en- court is the place for commune
tions to the jury in the presence o
or on notice to the attorneys. TIL
jury room is for the jury alone an
no communications are SLOWED wit
them in the room except ..cn orde,
from the court through the officer j
charge of them, who is permitted .
ask them whether they have agree
upon a verdict. All communication
70 the jury room in reference to til
case should be made In open court an
all communications to them In til