People v. Flack

Under section 463 of the Code of Criminal Procedure a new trial can only be granted in the cases provided in section 465. The latter section confers upon the court power to grant such new trial when a verdict has been rendered against the defendant (by which his substantial rights have been prejudiced) in the cases specified in the seven subdivisions which follow. These seven subdivisions need not be quoted in extenso, for the reason that the incident upofi which the present application is founded has no relation to any of these subdivisions except, possibly, the fourth. There is no pretense of any misconduct upon the part of the jury. Consequently the third subdivision is inapplicable. The sole question is whether the verdict is vitiated by the misconduct of a stranger, and the only provision under which the discussion on this head is admissible, is that embodied in the fourth subdivision. The latter reads as follows : “ When the verdict has been decided by lot or by any means other than a fair expression of opinion on the part of all the jurors.” The burden of establishing prejudice to his substantial rights, and the fact that the verdict was reached by means other than that referred to in the statute, is upon the defendant. In the present instance the stranger had no communication whatever with the jury. Their deliberations had proceeded for nearly three hours without even a suspicion of his presence. Upon his discovery, he was brought forthwith before the court, and his misconduct became the subject of brief and incomplete consid.eration. The hour was late, and the jury had, prior to the discovery, asked for instructions which it was important they should receive before midnight, as the next day was Sunday.

The point upon which the new trial is asked is substantially this: that some of the jurors may have been influenced by the knowledge of Choate’s professional character, and by the belief, resulting from that knowledge, and from his refusal to. promise secrecy, that their attitude in the jury-room would be disclosed to the public, and that thus they might be subjected to criticism or unfavorable comment. There is no evidence that any juror was in fact influenced by this incident, or that he gave his adhesion to the verdict because of such consideration. On the contrary, we have a very strong affidavit from all the jurors, to the effect that they were not influenced by this incident in the slightest degree, and that they decided the case solely upon the evidence and the law applicable thereto. Indeed, the affidavit goes so far as to state that the verdict had in fact been agreed upon before the discovery, subject—to quote the expression Used in the affidavit of the jurors—“ to the definition of

Indeed it was not until the Code (§ 421), that the officers or constables were absolutely forbidden by statute to speak to the jury or to be present during their deliberations. People v. Hartung, 17 How. 88 .

Such conduct on the part of constables was always disapproved, but verdicts were repeatedly sustained notwithstanding their presence in the jury-room, and even when they had actually solicited the jury to render a verdict for one side or the other. In Taylor v. Everett ( 2 How. 23 ), it appeared that the constable gave the foreman of the jury intelligence that a boy had been ground up in the latter’s mill, whereby the juror became so alarmed and so desirous of returning home, that lie was induced to agree to a larger verdict than he intended. The supreme court denied a new trial, Jewett, J., stating that the affidavit of a juror could not be received to prove irregularity or misconduct on his •own part or that of his fellows, and that—rejecting the affidavits of the jurors—there was, no evidence that the intelligence communicated by the constable influenced the verdict in any respect. The conclusion of the court was that although the conduct of the constable' was deserving of

In People v. Carnal (1 Park. 256) it was held that a communication made to the jury (while deliberating) by the constable to the effect that the judge said “ they had nothing to do with manslaughter,” was not, in the absence of actual prejudice, sufficient to avoid the verdict. The court observed that while any communication to a jury, during their deliberation, made by a party in whose favor the verdict was rendered, would avoid the verdict, he knew of no case where such an effect had ever been given to a communication by the losing party or by a stranger to the controversy ; and for the reason, as he supposed, that it would be giving to intermeddlers a power and control over the administration of justice that was denied even to the court.

These cases were cited and approved in Baker v. Simons ( 29 Barb. 199 ) where the constable urged the jury to give their verdict to the prevailing party. Some of the jurors told him “ to be still, and mind his own business ;” and they-all swore that his remarks had no influence upon them or the verdict which they gave. The verdict was sustained, Judge Mason declaring that it would be a practice rendering* very insecure the verdict of the jury, if it were liable to be set aside for every such officious intermeddling of strangers to the controversy; “ for the same principle,” said the learned judge, “ which would set aside the verdict when the constable wrongfully interfered with the jury, would also invalidate the verdict when any other person did so.” This latter observation was referred to with approval in Hager v. Hager ( 38 Barb. 102 ). There the subject of the suit was talked of in the presence of the jury by some of the bystanders at the dinner-table and bar-room of an hotel, and the constable was in the jury-room during their deliberations,, frequently conversing with the jurors upon other subjects than to ask them if they had agreed upon their verdict. The verdict was sustained, Hogeboom, J., closing his opinion with these apt words : “ While we should carefully guard.

In People v. Hartung (supra) it appeared that one of the jurors inquired of a eonstsble, who was in attendance, whether the jury could not bring in a verdict of manslaughter, stating at the same time that, if they could do so, the whole jury would agree on such a verdict. The constable, in violation of his duty as well as oath, undertook to give his opinion. He said he thought they could, but added that they had better consult their foreman, who, being a justice of the peace, would probably know. The revised statutes were subsequently sent for by the jury, and their provisions in relation to the crimes of murder and manslaughter examined. Hpon this state of facts Habéis, J., held that, although this was a reprehensible irregularity and sufficient to vitiate the verdict, yet the question whether injury resulted to the defendant was still an open one. He then examined the latter question and found that the defendant had not, as matter of fact, been prejudiced by these improprieties, and the verdict was, therefore, upheld.-

In Wilson v. People (4 Park. 619), the constable handed a juror a paper on which were marked the several punishments fixed by law for the different degrees of manslaughter, yet the court refused to set aside the verdict, it appearing affirmatively that he jury could not have been misled thereby. Gould, J., said : The act was unquestionably an irregularity. It was an attempt to do what a jury has no legal right to do—to render a verdict based on the punishment, not on the truth. But the attempt could have been only in favor of the prisoner, I cannot see how it is

In Wilson v. Abrahams ( 1 Hill, 207 ), the cases relating to the misconduct of jurors in civil and criminal trials were reviewed by Judge Bronson, and the true rule pointed out, viz. : that every irregularity which would subject the juror to censure, whether in drinking spirituous liquor, separating from his fellows, or the like, should not overturn the verdict-unless there be some reason to suspect that the irregularity-may have had an influence on the final result. See, also, Beebe v. People, 5 Hill, 34 .

The later cases are all the same way. The subject of irregularities was carefully considered in People v. Gaffney (14 Abb. N. S. 36), and Judge Sheldon’s able opinion was approved by the Court of Appeals (see page 43). There the jury, during their deliberation, became possessed of and read a newspaper containing a report of the trial, but no comments thereon which could prejudice the prisoner. They also had the revised statutes in the jury room, and perused the sections relating to murder and manslaughter. The verdict was sustained because it was apparent that no injury had resulted to the prisoner.

The authorities under the present Code all follow the old rule and hold that prejudice, as matter of fact, must be shown. This was explicity held in People v. Draper ( 28 Hun, 2 ; 1 N. Y. Crim. Rep. 138 ), where the officers swore to attend the jury were in the same room with them during their deliberation, and the jury had access to and read from law books relating to the crime under consideration. The cases of People v. Hartung, Baker v. Simmons and People v. Carnal were cited as authorities for the proposition.

The cases in some of the other States, notably in Kansas (State v. Synder, 20 Kansas, 309), seem to hold a different doctrine, and require the granting of a new trial whenever the irregularities are such that prejudice might possibly have resulted therefrom. This doctrine is, as we have seen, entirely opposed to the settled law of this State, both before and since the Code. There are certain acts which under our law would undoubtedly necessitate a new trial because of the legal inference of prejudice, such as the appearance of the trial judge in the jury-room, or a private communication

Nor, in this connection should we overlook the fact, however little it is to be commended, that the attitude of individual jurors in the final debate rarely escapes publicity. Even when jurors have pledged themselves to mutual silence, their secrets have been wrested from them by the astute inquisitors of the press. The knowledge acquired by this reporter, Choate, was but an accentuation of what each juror might well have supposed would ultimately, in some way, reach the public eye. ■ •

But, further, the defendants were aware, at the time of the occurrence under consideration, of every circumstance upon which they now claim legal prejudice. These circumstances then seemed to them so light and trivial—so unlikely to influence the jury in the due consideration of the case— that they made not the slightest objection to the continuance and conclusion of the debate. Nay, more, they requested the court to charge the jury further upon the law, and thus sought to impress upon the continued deliberations of the jury such additional instructions and to secure for themselves the benefit thereof. If they believed that they were prejudiced by the occurrence in question, they should then have spoken and protested against further debate. It is well settled that the defendant cannot observe irregularities and proceed without noticing them, reserving his knowledge to be subsequently utilized for his own advantage in case the verdict is against him. Thus, where the defendant and his counsel observed that one of the jurors was asleep, but failed to object thereto at the time, a motion for a new trial on that ground was denied (People v. Morrissey, 1 Sheld. 295). The defendant was not permitted to claim that the verdict was influenced by the sleeping juror’s lack of complete information.

In Dayharsh v. Enos ( 5 N. Y. 531 ), the court said that consent, either expressly or by implication, waives all objection to irregularities which occur in the progress of a cause ;

In People v. Clark ( 38 Hun, 217 ) an affidavit was read to the effect that two of the jurors, while the trial was progressing, were observed reading a newspaper containing a highly sensational account of the trial. The trial court placed upon the record his own statement that the affiant had been engaged during the trial apparently as an associate counsel for the defense. The motion was denied, and the denial was sustained apparently upon the ground of acquiescence in the reading and failure to object thereto at the time it was observed. See, also, People v. Reavey, 4 N. Y. Crim. Rep. 22 , 23 ; Wilson v. People, 4 Park. 631 ; Fessenden v. Sager, 53 Maine, 531, 536 ; State v. Daniels, 44 N. H. 383 ; Lyman v. State, 69 Ga. 404 ; Hunter v. State, 43 Id. 484 , 524 ; Harrington v. State, 76 Ind. 112 .

The principle, as well stated in Fox v. Hazelton ( 10 Pick. 275 ), is that a party cannot “take his chance of a favorable verdict, reserving a power to impeach it should it happen to be against him; a proceeding inconsistent with the plain principles of fair dealing and with the frankness which ought to characterize the whole course * of judicial proceedings.”

This doctrine should be rigidly applied to a defendant in a criminal case, for the reason that a verdict in his favor cannot be set aside, and that the people, upon an acquittal, are remediless.

Upon both grounds, therefore, the motion should be denied. First, upon the ground that the verdict was not influenced in the slightest degree by the incident under consideration. Second, that if the defendants believed that that incident either in fact tended to prejudice, or in law did prejudice, their substantial rights, they should not have speculated upon an acquittal, but should at the proper time, and when fully advised of the facts, have insisted upon a discharge of the jury.

For these reasons the application must bo denied.

Motion for a new trial denied.