People ex rel. Nunns v. County Court, Nassau Co.

This is certiorari of proceedings that adjudged the relator guilty of a criminal contempt. The relator also appeals. For reasons hereinafter stated, I advise dismissal of the appeal. The contemnor was a petit juror on the trial in the County Court of Nassau county of an indictment against the Sclrwabs for keeping a “café” as a disorderly house and a public nuisance. After the jury had- acquitted the defendants, the contempt proceedings were begun by order to show cause based upon affidavits. The relator appeared upon the return day personally and by counsel. The judge who had sat upon that trial conducted this hearing. Witnesses were examined and cross-examined. The relator offered no evidence, but rested his case upon various motions.

The final order rests upon the following facts: The relator, after drawn as a petit juror, was informed by the assistant district attorney that the prosecution sought an indifferent jury of whom none was acquainted with the defendants or their place then charged as disorderly, and none had knowledge of the defendants or of that place. Thereupon, in response to specific questions put to him, the relator answered that he did not know the defendants or either of them, and that he knew nothing of

My discussion presents three questions: First, was there evidence? Second, was there proof? Third, was there a criminal contempt ?

First. One of my brethren contends that the witnesses called were incompetent because they had been jurors in the case in which the relator had demeaned himself as a eontemnor. My answer is that there is no rule or principle of evidence, case made or statutory, that sustains the dissentient; but that.both persuasive authority and reason made these persons competent witnesses in this proceeding.' Examination of all the cases cited by my brother, and, I venture to assert, all others in this state and, indeed, outside of it where the rule of exclusion has been applied, will show procedure of attack upon the verdict, and that the witnesses or affiants were excluded, not because they were or had been jurors, but because they could not be heard to impeach their verdict. The text writers are cited where they are in consideration of the like condition. If so, then the cases cited are neither precedents nor authorities in the case at bar, for the reason that the verdict had been rendered before these proceedings were begun. Such verdict in this state was a finality, for it was one of acquittal in a criminal case, and hence these proceedings were not, and could not be, directed against the verdict. The verdict was not involved—not even a feature in the proceedings. The conduct of the relator bore no

Of the cases cited in the dissenting opinion, Smith v. Cheetham (3 Caines, 57) is authority for admissibility even in proceedings against the verdict; and Clum v. Smith ( 5 Hill, 560 ), Williams v. Montgomery ( 60 N. Y. 648 ), and Hewitt v. Chapman ( 49 Mich. 4 ), are cases of direct attack upon the verdict, wherefore the jurors were excluded from impeachment of it. I cannot find that Smith-v. Cheetham (supra), was ever directly overruled, although Sutherland, J., in Sargent v. - ( 5 Cow. 106 ), says that it must be deemed to be overruled in Dana v. Tucker ( 4 Johns. 487 ), where, however, it is not even mentioned. But my brother says that Kent, Oh. J., dissented in Smith v. Cheetham, and that his view prevailed in Hew York. My brother then cites Clum v. Smith ( 5 Hill, 560 ), and Williams v. Montgomery ( 60 N. Y. 648 ), which cases presented direct attacks upon the verdict. Kent, Ch. ‘J.’s dissent in Smith v. Cheetham (supra), which is limited to exclude willfulness and fraud, rests upon Vaise v. Delaval (1 Term. R. 11) alone. And the latter case is cited in Clum v. Smith (supra), together with Owen v. Warburton (1 Bos. & Pull. [N. C.] 326), and Dana v. Tucker ( 4 Johns. 487 ). Clum v. Smith, with Coster v. Merest (3 Brod. & Bing. 272), are the two cases cited in Williams v. Montgomery (supra). "

Vaise v. Delaval seems the pioneer case. To my mind it is neither precedent nor authority here. A motion was made to set aside a verdict upon affidavits of two jurors that the jury, being divided in their opinion, tossed up and the plaintiff’s side won. Lord Mansfield, Ch. J., in an opinion of six lines, decided that the court could not receive such an affidavit from any of the jurymen, “in all of whom such conduct is a very

Vaise’s case (supra) does not decide any principle that applies to the case at bar, and it does not contain any dictum or reason that supplies an argument by analogy. And for the

But it is also said by my brethren that the principle of the secrecy of the jury room must prevail. The public policy of this principle of secrecy is in the furtherance and assurance of free, fearless and untrammeled deliverance upon the evidence, and for that reason the proceedings of the jurors preliminary to the verdict—the talk, discussions, informal votes and the like—are declared inviolable for all time. Such doings are within the discharge of the duty cast upon the jury to decide the case upon the evidence. Such doings preliminary to the verdict are merged in it, and are inherent in it as the vere dictum. But conduct of a juror during the deliberations aimed to secure a particular verdict, by which in violation of his oath he should “avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration,” which “would * * * violate his duties” (Daniels, J., in People v. Zeiger, 6 Park. Crim. Rep. 355 , 357), should not be contemplated as if preliminary to the verdict and inherent in it, but—to quote' the language of Cole, J.—such doing is a matter that does not “essentially

How could exposure of the wrongdoer interfere with the principle that the legitimate discharge of the lawful doings of the jury preliminary to the verdict should not be disclosed ? The jurors are not to be regarded as informers, but as witnesses summoned to testify. If they are not called to impeach their verdict, why should they be excluded as witnesses, to the end that the wrongdoer may escape unless it chance that some outsider may learn of his misconduct through a window (see Lord Mansfield, in Yaise’s case, supra), or an eavesdropper happen to sit squat at the keyhole. I perceive no reason why the misconduct should be limited to acts, in contradistinction to words. Words are things, and wrongs may be worked by them. Should drunkenness of a juror be liable to exposure, and words whereby, e. g.., a juror should offer $1,000 apiece to his fellows for a verdict for his friend, or should threaten that violence would follow any juror who voted against such friend, be protected—because such words are uttered while the jury aré deliberating ? There is no tangible proof of either misconduct other than the testimony of the jurors.

I find most persuasive authority for my contention in the

Of course, if there were contrary or conflicting decisions in our own state we would follow them in the absence of direct decision of the United States Supreme Court upon a question within its jurisdiction. But in the absence thereof, these cases in the United States Supreme Court are of the highest persuasive authority, and even a gratis dictum therein is entitled to the greatest respect. Moreover, when the question presented is one of general policy, a fortiori should we respect the declarations of the highest court of our land. (See remarks of Duer, J., in Stoddard v. Long Island R. R. Co., 7 N. Y. Super. Ct. 180 , 188; Bell v. Perkins, 7 Penn. [Peck], 261, 263.)

It seems to me that the learned and scholarly dissent characteristic of my brother Putnam is beside the mark. I could concur with him had the verdict been attacked, despite the authorities :contra, for although the false answers were not made in the jury room the jurors were necessary witnesses to

The dissent of my brother Kelly is put upon the ground that the proceedings against the relator were in violation of section 14 of the Civil Bights Law, which is as follows: “A juror shall not be questioned, and is not subject to an action, or other liability, civil or criminal, for a verdict rendered by him, in an action in a court of record, or not of record, or in a special proceeding before an officer, except by indictment, for corrupt conduct, in a case prescribed by law.” I have heretofore attempted to show that this juror was not questioned for a verdict, and that he was not subjected to these proceedings for a verdict.

I think there should be no question as to the competency of these jurors as witnesses, when the feature of attack upon the verdict is not in the case. In Canal Bank of Albany v. Mayor, etc., of Albany ( 9 Wend. 256 ), the court, per Kelson, J., say: “In the case of Smith v. Cheetham (3 Caines, 57), no doubt was entertained by the court as to the competency of the confessions or admissions of the jury, if their own affidavits were admissible, and the only difficulty was the rule which rejected the evidence of the jurors themselves to impeach their verdict.” (See, too, Harris v. State, 24 Neb. 803 , 809.) The statements of the relator were admissible. (Dodge v. State, 24 N. J. Law, 455 , 461; State v. Williams, 30 Mo. 364 . See, too, Richards v. State, 36 Neb. 17 , 28; Ellis v. State, 33 Tex. Cr. Rep. 508.)

The case at bar is a practical illustration of the rule which I maintain. The verdict of acquittal had been rendered and

Second. Was there proof of the facts?

Criminal contempts in a criminal matter are declared within the purview of article 7 of title 2 of chapter 16 of the Code of Civil Procedure, by section 2148 of that Code. Therefore, we must consider whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and if there was such proof, whether there was upon all the evidence such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence. (Code Civ. Proc., § 2140.) The rule of Gompers v. Bucks Stove & Range Co. ( 221 U. S. 448 ) afforded to the relator the presumption of innocence, required proof of guilt beyond a reasonable doubt, and protected him from testifying against himself. The

As to the falsity of the answers to the assistant district attorney, the court as a trier of the facts had proof that the relator within the brief time that intervened his call as a petit juror and his verdict had made self-contradictory statements— not contrary, but contradictory. There was no direct proof which of these contradictory statements was false. The court very properly could consider the surrounding circumstances of the two contradictory statements. It could consider the fact that after the relator had become a juryman he informed his fellows, when they were in deliberation upon their verdict, that he did know the defendants and their place. The court might well have been at a loss to find explanation for such behavior in the jury room by a juryman who knew nothing of the defendants or of their "place, for Ids natural course would be to discuss the evidence, not to. state falsely that he did know the defendants and their place and then attempt to give, as if from such knowledge, a personal opinion that made for acquittal. There is no suggestion of embracery or like improper pressure upon this juror. On the other hand, explanation of such conduct could be found in the fact that the juror did know the .defendants and their place and had visited it. He might be a partisan of the defendants beyond the consideration of the evidence. He might have formed an honest opinion of the defendants’ innocence from his personal knowledge, despite the evidence. On the other hand, the relator could not thus serve the defendants unless he gained place in the jury box. This conduct as a juror disclosed a motive to become a juror. If a

I think that the court was justified in finding the conduct of

It is suggested that these utterances in the jury room may have been in casual conversation, innocent of any purpose. Perhaps mere assertion of acquaintance with the defendants and their place could or even should have been so regarded. But the statement of acquaintance was preliminary, followed by the expressions that the place was all right and was a correct place, a declaration of the relator’s belief in the innocence of the defendants. Certainly concessions cannot go further than to admit that the entire conversation was equivocal, and thereupon we are confronted with the rule declared for the court by Denio, J., in People v. Hackley ( 24 N. Y. 78 ): “The question whether the alleged offender really committed the act charged will be conclusively, determined by the order or judgment of the court; and so with equivocal acts, which may be culpable or innocent according to the circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment.”

It is suggested that the “conviction” of false statements to the assistant district attorney rests upon a “confession” of the relator without additional proof. But proof of the said statements made to the jurors in the jury room was not proof of a confession. Testimony that another did or said a thing is not testimony that he “confessed,” for such testimony is not as to what the other said he had done or had said in the past, but as to what the witness saw or heard the other do or say at a time then present. On consideration of all of the evidence, I think

The suggestion that a juror with impunity may bring to bear big own experience in the doings of life does not make for the relator. His offending was that he stated to the jury, then in consideration of the verdict, his personal knowledge, as to the very issue on trial, and declared from this personal knowledge his belief of the innocence of the defendants. (See Lenahan v. People, 3 Hun, 164 ; affd., on opinion of Daniels, J., 62 N. Y. 623 .) If a juror have knowledge of the very issue, he cannot in effect become a witness unsworn and not cross-examined. Section 413 of the Code of Criminal Procedure provides: “If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness, and examined in the presence of the parties.” The rule and the reasons are well stated in Schmidt v. New York Union Mutual Fire Ins. Co. ( 1 Gray, 529 , 535). And Daniels, J., writing for the General Term in People v. Zeiger ( 6 Park. Cr. Rep. 357 ) says: “This is required by two prominent considerations: 1st. That the evidence shall be given under the sanction of an oath. 2d. That the parties may have an opportunity of knowing on what evidence the jury are to act; and a juror who should, after the jury have retired to their deliberations, avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration, would not only violate his duties, but he would also be utterly unfitted for the position he was called upon to occupy.”

In determining whether the behavior of the relator was a criminal contempt we must look to the statute only. (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245 .) This is section 750 of the Judiciary Law. The part pertinent is subdivision 1, that reads: “Disorderly, contemptuous, or •insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority:” The statute does not purport to define or to describe the specific acts of behavior that constitute the contempt. The possible variations of conduct practically forbade “disorderly.” “Disorderly,” “contemptuous,” “insolent,” are all general terms. I think that “disorderly” and “insolent” imply • contumacy or the like, and are not applicable, but that we must confine ourselves to “contemptuous.” Contempts of the character now under consideration have been ascribed to violations “of the rights of the public as represented by their constituted legal tribunals,” “an offense against the court, as an organ of public justice,” “an act tending to impede or frustrate the administration of justice,” “a violation of the rights of the public as represented in their judicial tribunals,” “committed against the majesty of the law or against the court as an agency of government,” and “words or _ acts obstructing or tending to obstruct the administration of justice.” (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245 ; Yates v. Lansing, 9 Johns. 417 ; Black’s Law Dict.; People ex rel. Gaynor v. McKane, 78 Hun, 161 ; State ex inf. Crow v. Shepherd, 177 Mo. 205 ; 7 Halsbury’s Laws of England, 280.)

And first as to the behavior under examination as a juror. Indifference is an element of a jury. (Capital Traction Co. v. Hof, 174 U. S. 15 .) Our statute prescribes it. (Code Crim. Proc., § 387.) To that end is the right of challenge and with it the right of examination. In the case whence this proceeding arose, the counsel in charge of the prosecution declared

Such behavior was during the sitting of the court, and in its immediate view and presence (People ex rel. Choate v. Barrett, 56 Hun, 351 ; affd., 121 N. Y. 678 ), and I think that such behavior was contemptuous. The kind of contempt as is within the purview of the statute has further been described as a willful attempt of whatsoever nature to influence jurors improperly in the impartial discharge of their duties, whether it be by conversation or discussions: (9 Cyc. 15, cited in Emery v. State, 78 Neb. 547 , 9 L. R. A. [N. S.] 1124. See, too, State v. Jones, 29 S. C. 201 , 233.) I fail to perceive why the circumstance that the offender was a juror can affect the principle. It seems to me a fortiori that such act was flagrant. The pertinent principle may be found in the leading case of People ex rel. Munsell v. Court of Oyer & Terminer (supra). The charge against Petit Juryman Munsell was that he privately visited the scene of the affray. Although it had been alleged that he had made that visit against the orders of the court, it was conceded- that there had been no order of the court.

The return does not show that the relator was sworn before he made the answers as to his qualifications. But I think that the question of his contempt in his false answers would not be affected if those answers were made without oath. The oath is not a prerequisite, for its purpose is to subject the falsifier to the pains of perjury (Bouvier [Rawle’s 3d Rev.], 2566), and, under our statute, to eliminate challenge for actual bias. (Code Crim. Proc., § 376.) The effect of the answers, save upon the relator, was the same whether he was sworn or not. I perceive no logic in the proposition that the commission of perjury is essential to a contempt by false answers. I know of no rule, no requirement of statute, that a proposed juror must be sworn before he answers the questions as to his qualifications, at least in the absence of objection

The learned counsel contends that the ' moving papers on the motion were a nullity and the proceedings void. This proceeding was instituted by an order to show cause upon affidavits. The relator appeared on the return day and was represented by counsel. He moved for dismissal on the insufficiency of the moving papers, and asked time for argument. The case was continued, but it does not appear that the motion was argued or pressed, and the court without objection proceeded with the examination of the jurors. The appearance and submission to a hearing on the merits was a waiver o£ any defects that might be in the preliminary process, and conferred jurisdiction of the person. (Bowman v. Seaman, 152 App. Div. 693 , 694, 28 N. Y. Crim. Rep. 279 citing Sweeney v. O’Dwyer, 197 N. Y. 499 ; People ex rel. Barnes v. Court of Sessions, supra, 295.)

I am of opinion that an appeal from the order that declares a criminal contempt committed in a criminal case does not lie, but that the proper remedy is certiorari. (People ex rel. Taylor v. Forbes, 143 N. Y. 223 . As to the general principle, see New Orleans v. Steamship Co., 20 Wall. 387 , citing inter alia Crosby’s Case, 3 Wilson, 188 [see pp. 202, 203, 204] ; Dodd v. Una, 40 N. J. Eq. 672 , 715.)

I advise dismissal of the appeal, and affirmance of the order.

Rich and Jaycox, JJ., concurred; Putnam and Kelly, JJ., read for reversal.

. On July 11, 1918, a jury acquitted Louis Schwab and wife, after a- trial lasting four days in the Nassau County Court, on

¡¡Mr. Edwards deposed that since the verdict rumors had come to him that ¡¡Nunns “had stated to the jurors while in deliberation in the jury room, that the place was all right, because he had been there on many occasions with his wife, and that there was a much worse place in Freeport, and that certain Freeport people were jealous because Schwab was making a lot of money, and they wanted to put him out of business.” ¡¡Mr. Edwards also set out that before accepting ¡¡Nunns as the ninth juror he had inquired if ¡¡Nunns knew either of the defendants, if he hail ever been in the place, which he answered in the negative, and that ¡¡Nunns had stated that if accepted he would be governed by the evidence in the case.

After the trial, ¡¡Mr. Edwards further deposed that he had this colloquy with ¡Nunns: “Mr. Edwards: I understand Mr. ¡¡¡Nunns that you were the whole jury; that you told them you knew all about the place. Mr. ¡¡Nunns: Well, I only told the, truth, I did tell them all I knew about it, and that I had been there with my wife, and that I had never seen anything wrong. Mr. Edwards: Did you think that was fair ?”

The affidavit continued: “Mr. Vandewater, the foreman of the jury, said he was surprised while the "deliberation was going on, to think the District Attorney allowed a man with such prejudiced and so much alleged knowledge of the place, upon the jury, and deponent informed the foreman of the jury that he had been assured that said juror was an honest man. After the trial Thos. B. ¡¡Nunns visited Schwab’s place on several occasions. Deponent further says that he has not found any reflect [sic] on any other juror and whatever effort [sic] this man ¡Nunns had on the jury we cannot tell, but we do think a dishonest man upon the jury, at this time, during the trial,

The order required Nunns to show cause why he should not be punished “for contempt of this court in and out of its presence.” Relator appeared by counsel, and moved to dismiss the proceedings. The court directed an adjournment, saying: “The District Attorney will subpoena the jurors and have them here at the next hearing.”

On August fifth, the adjourned day, there were called and sworn nine members of the jury. Over objection and exception two of such jurors (Vandewater and Mullin) testified that Nunns had said to the jurors that he knew the people and had been in the place with his wife; four (Frank, Jackson, Don-court and DeMott) that Nunns said he had been in the place or had been there more than once; two others (Foley and Siles) remembered no such statement. White (the remaining juror produced) said he had heard no such statement of Nunns in the jury room, but some time after the trial, when riding from Mineóla to Freeport, Nunns had said that he had been with his wife in the Schwab place, and that he did not see anything the matter with it. Whether this was a visit before the trial did not appear. Doneourt’s cross-examination, having been cited in part in the majority opinion, is in full as follows:

“Cross-examination by Mr. Clock: Q. Do you recall "any question that was asked of him [Nunns] by the District Attorney before he became a juror ? A. Why, no, I don’t know, I paid no particular attention. By Mr. Edwards: Q. You recall that the District Attorney asked you and,the rest of the jurors a great deal about their acquaintanceship with the defendant and their knowledge of the place? A. Yes. By Mr. Clock: Q. When did he say he had been in the place? A. I don’t know that he made any statement as to the time, prior to the trial, of course.” Thus the witness may have understood the question and his reply as referring to Nunns’ statement prior to the trial.

Ordinarily it is their verdict, not the discussion leading to it, that is the essential. But if it were otherwise, the absolute privilege surrounding the jury’s deliberations, as distinguished from overt acts, cannot be violated, without destroying the jury’s constitutional purpose. To subject them to such a questioning tends to restrain freedom of expression, so essential to full deliberation, if not to overawe them in discharge of their duty.

Although in 1805 a juror’s affidavit was received in Hew York to show the misconduct in reaching a verdict by averaging the estimates of damage, Kent, Ch. J., dissented (Smith v. Cheetham, 3 Caines, 57), and his view has not only prevailed in New York (Clum v. Smith, 5 Hill, 560 ; Williams v. Montgomery, 60 N. Y. 648 ), but throughout the entire country save only in six jurisdictions. (Wigm. Ev. §. 2354; Jones Ev. [3d ed.] § 767, n. 92.) It is also the rule in British dependencies. (Oswald Contempt [ed. 1913], 212.)

The learned court from his own memory might recall the negative statements attributed to Hunns, before he was taken

The wisdom that forbids to pry into the consultations of jurors especially applies in a criminal case. Suppose after conviction it were made to appear that against the statute and charge of the court one juror had forcibly commented to his fellows upon the failure of the accused to be sworn, could the court punish such remark, or even permit it to be the subject of inquiry?

Furthermore, this is a matter of complaint which, in Coke’s words, “was never seen before.” Punishment for contempt is here applied to acts not external to the deliberations of the jury, nor to overt acts, like drunkenness (Perry v. Bailey, 12 Kan. 539 ), but to the intimate and free conversations between jurors in which expressions of personal knowledge passed before arriving at their verdict. There is no outside proof thát before the trial the relator had declared a bias or partisanship, as in Hyman v. Eames ( 41 Fed. Rep. 676 ), which cannot be deemed an authority here.

The jurisprudence of Hew York has jealously guarded the privacy of a jury’s consultations. In civil cases Hew York abolished “attaints upon untrue verdicts” (Act of March 30, 1801; Laws of 1801, chap. 90, § 28; 1 K. & R. 358, § 28)

Our Revised Statutes set strict bounds upon courts’ investigation of the jury room by this provision: “Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding', civil or criminal, except to indictment for corrupt conduct in rendering such.verdict, in the cases prescribed by law.” (2 R. S. 421, § 69.)

The revisers’ note to this called “the residue new, but declaratory of a principle that has been sometimes disregarded.” (Revisers’ Reports, vol. 5, p. 65.)

Jurors are protected from inquisition and pimishment save by process under indictment with jury trial by a like provision in our Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14), section 14, in that it wholly drops the qualifying words “in rendering such verdict.” Hence the Legislature has unmistakably left misconduct of jurors to be dealt with under the established methods of the criminal law.

My real difference with my brethren is whether these provisions can be disregarded if only the verdict be not technically affected. After a jury has been discharged, can the prosecution call up the jurors and demand to have them sworn again to testify how and by what arguments they finally voted not to convict ? What would be left of the moral value of an acquittal, if the jurors, or one of them, could be fined'for participation in this result ? The distinction as to such inquisition (hitherto happily unknown in the United States) is plain. It is between what the jurors may say ixi deliberating upon their successive votes—what Wigmore calls “their subjective freedom of expression”—and overt acts, like getting drunk, or otherwise incapacitating themselves from discharge of their duty, or the effect on them of extraneous influences like evidential papers from a party or newspapers covertly brought into the jury room.

Professor Wigmore says (§ 2345) : “The dogma that a juror may not impeach his verdict is, then, in itself neither correct in law nor reasonable in principle.” He refers this doctrine of exclusion to the general principle of privileged communications between jurors during retirement. He lays down the fundamental principle: “The communications originate in a confidence of secrecy; this confidence is essential to the due attainment of the jury’s constitutional purpose; the relation of juror is clearly entitled to the highest consideration and the most careful protection; and the injury from disclosure would certainly overbalance the benefits thereby gained.” (§ 2346.) He also states that the communication of a juror’s expressions of personal knowledge are within the privilege for confidential communications which “ought to exclude them.” (§ 2354[2].)

However it may be in other jurisdictions, in the State of Hew York it is the privilege of the jurors that is inviolable, not the result in a mere verdict, the value of which depends wholly on maintaining such privilege. Suppose, after a jury have failed to agree and have been discharged, a juror should he sued for slander in having told his fellow jurors that the defendant in the case was a thief. Would such evidence be admissible, because it would not happen to “impeach a verdict ?”

The power to punish for contempt in this state is limited. The Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), section 753, subdivision 6 (re-enacted from Code Civ. Proc. § 14, subd. 6, and R. S. pt. 3, chap. 8, tit. 13, § 1, subd. 6; 2 R. S. 534, 535, § 1, subd. 6), provides: “A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in

The revisers spoke of defining a power to punish contempts, “which, while it is absolutely necessary in many cases, is yet perhaps, more liable to abuse, and in England, has been abused, more than any other possessed by the courts.” Subdivision 6 was reported as enacted, except that the word “improperly” was inserted by the Legislature, who further struck out the revisers’ additions, “for eating or drinking, after being sworn as jurors, or for departing from the court, or for separating from the other jurors or the officers having them in charge, without the permission of the court.” (3 R. S. [2d ed.], 772, 773, Appendix.) To seek to punish for things privately said by jurors is not found in either section 750 or section 753 of the Judiciary Law. Where, after an acquittal, it was sought to call in question the act of a grand jury in finding the original indictment, Coke said of such attack on jurors: “It will be a cause of infinite vexation and occasion of perjury, and smothering of great offenses, if such averments and supposals shall be admitted after ordinary and judicial proceeding; and it will be a means, ad deterrendos et detrahendos juratores a servitio Regis.” (Floyd & Barker Case, 12 Coke, 23, 24.) Indeed the Federal court has fined a grand juror for such disclosure. (Matter of Atwell, 140 Fed. Rep. 368 .) This was reversed because the obligation of secrecy was held not to continue after the grand jury had been finally discharged and the accused apprehended. (Atwell v. United States, 162 Fed. Rep. 97 .)

The British Court of Chancery is declared to be “jealous of the personal freedom of the subjects of the Crown.” (Hope v. Carnegie, L. R. 7 Eq. 254, 260.) Hot less so should be the attitude of a Hew York court. “The power which courts possess of punishing for contempts, and for refusal to give evidence, is, in its nature, an exception to the provisions of

Even in England, where there is no limiting statute, as in Hew York, for contempt, Sir George Jessel solemnly declared: “It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode, which is not open to the objection of arbitrariness and which can he brought to hear up on the subject.” (Matter of Clements, 46 L. J. Ch. Div. [N. S.] 375, 383.)

The county prosecutor and the court should be ever zealous to preserve the purity, fairness and impartiality of juries, and to use all means provided by the Legislature to- prevent interference with the due administration of justice. But the present order, with the method of inquiry followed, if allowed to stand as a precedent, in my judgment would work greater harm than could come from this acquittal. Such order removes landmarks which our ancestors set up. It strips from acts of a juror in an official body the protection to be regularly subjected to indictment and trial by the country, a safeguard guaranteed td the worst criminal. It does violence to a statute carefully framed to restrict criminal contempts to conduct willfully disobedient or disorderly.

Hence I vote to reverse, and to dismiss the proceedings.

I am obliged to dissent upon the ground that the proceedings against the relator were in violation of the Civil Rights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14), section 14. The juryman 'was called to account in a contempt proceeding for a verdict rendered by him.

Determination confirmed and appeal dismissed.