People v. Brannigan

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

The statute regulating proceedings in criminal cases provides that when the jury do not agree, after a case has been submitted to them, without retiring for deliberation, one or more officers shall be sworn “ to keep them together in some private and convenient place, and not to permit any person to speak to them, nor to speak to them themselves, unless it be to ask them whether they have agreed upon a verdict, and to return them into Court when they have so agreed.” (Sec. 402.) And it empowers the Court to grant a new trial “ when the jury have separated without leave of the Court after retiring to deliberate upon their verdict, or been guilty of any mis[339]conduct tending to prevent a fair and due consideration of the case.” (Same Act, sec. 440.) The object of the first provision is to remove the jury from all improper influences in then deliberations ; and the object of the second provision is to furnish a remedy where the jury have been subjected to such influences, or been themselves guilty of misconduct tending to affect the purity of their verdict.

The language of the oath administered to the officer having the jury in charge points out with clearness his duties. He is required “ to keep them together f that is, he must not permit them to separate. He must keep them “in some private and convenient place;” that is, removed from access by strangers. He must not “ permit any person to speak to them,” a duty which can only be performed by following the previous requirement of keeping them in a private place. And, finally, he must not speak to them himself, except to ask them whether they have agreed upon a verdict. When either of these requirements is disregarded by the officer, he fails to perform his duty, and the trial is irregularly conducted. If a conviction follows, the prisoner has ground to complain of the irregularity. He is entitled to all the protection which the statute intends to secure, against any interference with the action of the jury, whether arising from the hostility of personal enemies or popular prejudice. If such protection be not afforded, suspicions are excited and confidence in the justice of their decision is destroyed. It would seem therefore but reasonable, where an irregularity has been committed, which may have affected the jury, that the Government, seeking to uphold their action, should be called upon to show that no injury to the prisoner has followed from the irregularity complained of. If this can be shown, their verdict will not be disturbed—for the end which the law contemplated by its provisions has been attained. In the present case the irregularity consisted in the unauthorized separation of the jury, after retiring to deliberate upon their verdict. The prisoner, in his affidavit, upon which the motion for a new trial was based, alleges the separation, and the fact is not controverted, nor is any explanation of it attempted by the State. The District Attorney appears to have considered it incumbent upon the prisoner to show affirmatively injury to him