People v. Backus

Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

During the trial of this case in the Court below, after the Court had adjourned, and directed the jury to be kept together under the control [276]of an officer, one of the jurymen absented himself from the jury room without the custody of the Sheriff for the period of two hours.

The statute of this State provides that the jury may separate by leave of the Court. In the present case the juror left his fellows without such permission. How far this would vitiate the verdict is a disputed point among the Courts of the various States of the Union; it is universally conceded that it is an irregularity. In New Hampshire, Connecticut, North Carolina and Indiana, it has been held that the mere separation of the jury is not sufficient of itself to authorize the Court to set aside the verdict, but that the party must show facts and circumstances tending to establish improper influences, while in Virginia and Tennessee it has been held that if the separation was such that the juror might have been improperly influenced by others, the verdict would have been set aside.

The latter rule we think is the correct one, because it would be impossible in almost every case for the prisoner to establish the fact of any corrupt or improper communications between the juror and others. This doctrine is substantially sustained by the Supreme Court of Massachusetts in the case of the Commonwealth v. Roly, 12 Pick, 519, and in a late case (decided in 26 Miss., 78—Organ v. The State,) in which the whole doctrine is reviewed. In the latter case the Court says :— “ If any separation is to be allowed without incurring the imputation of irregularity—for what length of time, and for what purpose may it be;, how frequently may it be practiced, and to what distance may it extend—by what means are communications between the juror and and other persons which may take place, and which must necessarily be secret, to be disclosed ?”

In the present case the consequences of the jury’s separation is sought to be avoided by the affidavit of the juror himself, that he left the room by consent of the prisoner’s counsel, and that no improper communication had taken place between himself and any one else during his absence. The first fact is denied by the appellant’s counsel; and, even if it was trae, we are at a loss to conceive how his consent could excuse the consequences of an act which could only be permitted by the Court.Neither can the affidavit of the juror be admitted to purge his conduct from the imputation of corruption or impropriety—for, say