By the Court, Selden, J.
I will first consider that branch of the motion which is founded upon certain alleged irregularities on the part of the jury. The affidavit of Cornelius Fielding states that on the evening of Wednesday, May 9th, 1855, being the third day of the trial, several of the jurors passed him on New Main-street, in Rochester, about three-fourths of a mile from the court-house, and stopped at Still-son’s block, at the corner of New Main and Franklin streets; that he immediately crossed over towards them and went into Coatsworth’s grocery store, situated upon the comer, and as he wasAgoing in he saw Stephen Charles, one of the jurors, in the store, about thirty feet from the door, talking with Coatsworth, and in company with another person who was neither an officer nor a juror; that the three continued in conversation some time; that he distinctly heard their voices but could not understand what they said; that while this conversation was going on, James Murray, another of the jurors, who lived in the upper part of Still son’s block, spoke and said he was “ going up to see his folks,” and immediately separated from his fellows and went up stairs; that he, Fielding, remained in the store some five minutes or more, and then went out and found three or four of the jurors only at the entrance where they stood when he went in; “the rest except Murray having left.”
This affidavit is corroborated in all its essential features by the affidavits produced on the part of the prosecution; [38]*38for while nine of the jurors depose that, upon the occasion referred to by Fielding, when they stopped at the entrance to Stillson’s block, they neither saw nor knew that Stephen Charles, one of their number, went into the store of Coats-worth, or separated at all from his fellows, yet Charles himself, who was foreman of the jury, testifies that he did go into the store and held conversation with Coatsworth, of one or two minutes, in regard to some private business of his own; and this is still further confirmed by the affidavit of Coats-worth, who says that he had such conversation with Charles at his store at some time during the sitting of the court at which Eastwood was tried. He says, it is true, that he thinks it was in the daytime, and after the jury was discharged; but in this he is contradicted by both Fielding and Charles, and is evidently mistaken. Charles says that he has no recollection that any third person was present at his conversation in the store, and both he and Coatsworth say they did not see Fielding, and yet the latter must have been there.
Again, eight of the jurors contradict Fielding’s statement, that a portion of the jurors left their position at the entrance - to the apartments of Murray during his absence, and yet it is clear .that Fielding is correct in this; because he is supported in the statement by Murray himself, by Doty, another of the jurors, and by Targee, one of the constables 'having the jury in charge. The latter says that while Murray was gone, “ several persons began to gather around the jurymen, and at the suggestion of the deponent, Olmsted, the other constable, started on with some of the jurymen upon Franklin-street, to avoid the crowd of persons beginning to gather around them.'"' There is no doubt therefore of the general accuracy of Fielding’s statement. These are the. facts upon which the first allegation of irregularity is based.
The second rests upon the affidavits of Osborn Hanford and C. F. Backus; Hanford states that he resides in the immediate vicinity of the scene of the homicide; that on the evening of Thursday, May tenth, which it appears was [39]*39just after the testimony was closed, but before the case was summed up, he saw six or eight of the jurors go to and examine the ground where the blow which killed Brereton was given, which is about two miles from the court-house; that they then crossed the road to his, deponent’s, residence, where Mr. Hobbie, one of their number, opened the gate, stepped into the yard and placed himself upon the spot where his, Hanford’s, daughter Elizabeth had testified upon the trial that she stood when she saw the defendant strike the deceased, and then turning his head and looking towards the place where the deceased fell, remarked that Miss Han-ford had a good view from that point, and could see all that occurred. Hanford states that Stephen Charles, another of the jurors, remarked that deponent’s daughter Elizabeth was the only man on the ground, as she was the only one who tried to prevent Eastwood from striking Brereton.
Backus confirms the statement of Hanford in respect to the visiting by the jurors of the ground, and as to one of the jurors placing himself within the gate at Hanford’s house; and also states further that the jurors stopped at the pump in front of Olmsted’s tavern, and while there the constable in whose charge they were went into the tavern and did not return until the jurymen had all left, and had gone eighty or one hundred rods towards the city; that a great many persons were passing in the street at the time, and the jury were not together or near each other, but were scattered along, some rods apart.
To meet these statements the affidavits of the six jurymen who visited the ground, with that of the constable who attended them, were produced. They staté that on Monday, the first day of the trial, the judge who presided, in the presence of the prisoner and his counsel, and without objection on their part, gave permission to the jury to walk in the open air for recreation after the adjournment of each day, attended by the two sworn officers, without restriction as to the limits or direction of their walk; that on Thursday, after [40]*40the testimony was closed, and after tea, six of the jurymen requested Targee, one of the constables, to attend them upon a walk, which he consented to do; that the other six jurors said they preferred to remain at the hotel; that James H. Wood, one of their number, a brother of the superintendent of the House of Refuge, proposed that they should walk in that direction, which they accordingly did; that after reaching the House of Refuge they concluded to walk on, and five of the jurors say they approached the scene of the homicide before they were aware of it; but Stephen Charles, the foreman, and Targee the constable, both say that, after getting nearly there, one of their number said in substance that as they had gone so near the ground they might as well go on down there. They all say they had no other motive but curiosity in visiting the ground; that there was no controverted point of evidence which could be affected by it; and that their verdict was not in the least influenced by the view of the scene thus obtained. Charles also confirms Hanford as to the remark to the latter in respect to his daughter being “the only man on the ground,” and although the six jurors all say that they left Olmsted’s tavern in company with Targee, the constable, yet the affidavits of Targee himself, and of John Sweeney, the bar-keeper at the tavern, both produced on the part of the prosecution, go strongly to corroborate that of Backus upon this point.
Backus says that while the constable was in the tavern something was said about a bill which the constable offered to the bar-keeper, and that the former did not leave the barroom until the jurors had all left and gone eighty or one hundred rods. Targee admits that the jury had all started for the city before he left the tavern, but says they had gone only a few rods; that he bought a single cigar at the bar and paid for it by a one dollar bill, and received the change, and denies that anything whatever was said about the character of the bill. Sweeney, on the contraiy, says that Targee handed him a one dollar bill which he at first sup[41]*41posed was bad, but finally ascertained was good, being so informed by Backus. The affidavit of Backus, therefore, seems to be pretty fully confirmed in all respects except one. He states that Targee bought liquor at the bar instead of a cigar, but this is contradicted by both Targee and Sweeney, and conceded by the prisoner’s counsel to be an error. It appears that Backus was sitting upon the porch in front of the tavern, and his supposition that the bill was offered in payment for liquor was probably a mere inference. The only other discrepancy between his statement and that of Targee is as to the distance which the jurors had gone when the latter left the tavern. These are the essential facts relied upon to support this branch of the motion. The question is, are the irregularities thus shown sufficient to vitiate the verdict ?
The early doctrines of the common law in regard to the misconduct of jurors have been greatly modified in more modem times. It seems to have been regarded by the older writers as an inflexible rule that after the jury were once sworn and the trial commenced, they could not, in either a civil or criminal cáse, be permitted to separate, except in cases of evident necessity, and that any unauthorized separation would be fatal to the verdict. (Co. Litt., 227; Fost., 27; Trials per Pais, 249; 4 Bl., 360.) This rule, however, began at an early period' to be relaxed in civil cases and cases of misdemeanor. In the case of Lord St. John v. Abbot (Barnes, 441), cited by Judge Cowan in his note to Smith v. Thompson (1 Cow., 221), two or three of the j my-, men, after the cause had been submitted to them, separated from their fellows and came into the court. The judge, on being informed that they were in court, asked them what they did there, to which they answered that they could not agree, whereupon they were sent back to their fellows, and afterwards a verdict was found'for the plaintiff. The court was of opinion that the jury, were punishable for their mis[42]*42conduct, but that it was not sufficient cause for setting aside the verdict.
The rule which seems to have been adopted in that case has been followed ever since, and is still the rule in this, if not in other states, as well as in England, viz., that the party who seeks to avoid a verdict in a civil case, on the ground that the jury have separated, whether such separation be with or without the authority of the court, must show affirmatively that the separation has, or may probably have t had, some effect upon the verdict.'
The cases of Smith v. Thompson (1 Cow., 221), Horton v. Horton (2 id., 589), and ex parte Hill (3 id., 335), are sufficient to show the ruling of the courts in this state on the subject. That the rule in' cases of misdemeanor is the same is abundantly settled both in this country and in England. In Bul. Nisi Prius, 308, it is said that “ At the ,present day it appears that the jury will not be permitted to disperse, after they have retired for the purpose of considering their verdict; although in a case of misdemeanor, a dispersion of the jury, with the judge's concurrence, on an adjournment taking place during the progress of a trial, will not be sufficient to avoid a verdict.” Later authorities show that when the dispersion is without the authority of the judge, although the jurors themselves may be punished, the rule so far as the validity of the verdict is concerned is the same. The leading case on the subject is that of Rex v. Woolf (1 Chitty 401), which was an indictment for a conspiracy. There, on motion to set aside a verdict on account of the separation of the jury, all the cases were examined, and it was finally held that “ in cases of misdemeanor" the dispersion of the jury alone is not sufficient to vitiate a verdict. The separation in that case was by permission of the court; but upon this subject Abbott, Ch. J., said: “The only difference that can exist between the fact of the jury separating with or without the approbation of the judge, as it seems to me, is this: that if it is done without the consent or approbation of the judge, [43]*43express or implied, it may be a misdemeanor in them, and they may be liable to be punished.”
In the later case of Rex v. Kinnear (2 Barn. & Adolph.), where the jury separated without leave of the court, this opinion of Ch. J. Abbott was approved and adopted. In this state the rule is the same, and no distinction whatever is made between cases of misdemeanor and civil cases. (The People v. Alcott, 2 John. Cas., 301; The People v. Beebe, 5 Hill, 32.)
■ But the question we have now to consider is whether the same rules are'to be applied to criminal cases of a higher grade, and especially to capital cases. In The People v. McKay (18 John., 212), Spencer, Ch. J., in giving his opinion, refers to a case in which this question arose. He says: “A case analogous in principle occured in Ontario county, in 1814. A woman of color was indicted and tried for murder and found guilty. The jury had separated, after agreeing on a verdict, and before they came into court, and on that ground a new trial was granted.” This, so far as appears, is the only authority in this state directly upon the point. There are, however, subsequent dicta which it is necessary to examine.
In The People v. Ransom (7 Wend., 41), after referring to several of the civil cases bearing upon the question, Sutherland, J., says: “ That the doctrine upon this subject is the same in criminal, and even in capital cases, as in civil, is clearly settled.” He then refers to The People v. Douglass (4 Cow., 26), and after briefly stating the facts, says: “Upon an application for a new trial for this misconduct of the jury, each of the judges expressed a decided opinion that the mere separation of the jury, though in violation of their duty and against the express directions of the court, and although in a capital case, would not of itself be a sufficient cause for setting aside the verdict.”
These dicta, together with what was said in The People v. Douglass (supra), have been treated as unsettling the law [44]*44upon this question in this state. Mr. Wharton, in his work on American Criminal Law, after stating the rule in several of the states, says: “ In New-York, mere separation without permission appears formerly to have been considered prima facie evidence of misbehavior,” citing the opinion of Spencer, J., in The People v. McKay. “ But," he proceeds to say, “the better opinion now is, that to vitiate the verdict, reasonable suspicion of abuse must exist,” for which he cites The People v. Douglass, and The People v. Ransom (supra). It is very doubtful, however, whether the somewhat loose dicta of the judges in these two cases, which were entirely obiter, ought to be considered as overthrowing the direct decision upon the point referred to by Chief Justice Spencer, in The People v. McKay, even if they" were the only authorities upon the subject. Besides, it will be seen on examination that the. remark of Judge Sutherland, in The People v. Ransom, in regard to the opinions of the judges in The People v. Douglass, is not fully borne out by the latter case; for while it is true that Judge Woodworth does in that case say, in substance, that the mere fact of separation, unaccompanied by any further evidence of abuse, is not sufficient to avoid the verdict even in a capital case, to which Judge Sutherland himself may perhaps be considered as having given a quasi assent, yet Chief Justice Savage expressly reserves his opinion upon the point. He says: “ Upon so grave a question as that of the life or death of a fellow-citizen, I am not prepared to say that the separation of the jury contrary to the instructions of the court, and mingling with the throng about the court-house, should not affect their verdict; but I do not deem it necessary to express an opinion upon this point.”
■ There is at most, therefore, so far as this state is concerned, but the mere obiter dicta of two judges to oppose to the direct decision of th'e Supreme Court in 1814, confirmed as it is by the reference to it by Chief Justice Spencer, in The People v. McKay. But if it be doubtful which of these opinions ought [45]*45to prevail, if taken by themselves, there is an overwhelming preponderance of authority in other states .in favor of the earlier decision. The leading case on the subject in the United States is that of The Commonwealth v. McCaul (1 Virginia, 271). The case was ably and elaborately argued by the late William Wirt for the prisoner and Attorney-General Nicholas for the commonwealth ; and it was there unequivocally held that the mere separation of a jury in a capital case, unless from absolute necessity, is sufficient to vitiate the verdict, and that it is not necessary for the prisoner to give affirmative evidence of any additional abuse. The principle of this case has been generally followed by the courts in this country, with, however, this addition, not at all inconsistent with it: that when it is affirmatively shown on the part of the prosecution that no injury could have resulted to the prisoner from the separation, the verdict will not be set aside.
As the principle we are considering is of the highest importance, and as it is desirable, in view of the strong interest the case has excited, that the correctness of our conclusions should be clearly established, I feel justified in bringing under review a few of the later American cases, in the order in which they have arisen. The first which I shall notice is that of The Commonwealth v. Roby (2 Pick., 496), decided in 1832. In that case the question we are now considering did not directly arise, the irregularity complained of consisting of the jury being furnished, by the officer having them in charge, with food and drink, while deliberating upon their verdict. But Ch. J. Shaw, in the course of his opinion, refers to the decision of the General Court of Virginia, in the case of The Commonwealth v. McCaul, and then says: “The court in New-York, in The People v. Douglass, intimated that this went somewhat further than the common law. Whether it would be adopted as a rule here it is not necessary to inquire. It is manifest that by such separation the jury might be thus exposed.” Again, he says: [46]*46“ The result of the authorities is, that where there is an irregularity which may affect the impartiality of the proceedings, as when meat and drink and other refreshment has been furnished by, a party, or when the jury have been exposed to the effect of such influence, as where they have improperly separated themselves,' or have had communication not authorized, then, inasmuch as there can be no certainty that the verdict has not been improperly influenced, the proper and appropriate mode of correction and relief is by undoing what has been improperly and' may have been corruptly done.” This language of the learned chief justice shows conclusively that he concurred in the decision of the General Court in Virginia, rather than the dicta of the judges in The People v. Douglass. The next case is that of The State v. Prescott (7 N. Hamp., 287). In this case, where 'the jury had separated, the Supreme Court of New Hampshire expressly dissented from the doctrine of Judge Sutherland, in The People v. Ransom. After quoting some of his remarks, Parker, J., says: “ But we think there is another principle which should also be applied in a criminal case, which is, when there has been an improper separation of the jury during the trial, if the verdict is against the prisoner he is entitled to the benefit of a presumption that the irregularity has been prejudicial to him; and that it is incumbent upon the government to show, and that beyond a reasonable doubt, that the prisoner has suffered no injury by the departure from the forms ordinarily pursued in the administration of justice.” This is the precise doctrine for which I contend, and is stated in the clearest and most unequivocal terms; but as I desire to leave no doubt of the correctness of my conclusion upon this point, I shall not rest the argument here.
In the case of McLain v. The State (10 Yerger, 241), a portion of the jury had several times separated from their fellows, and remained absent fifteen or twenty minutes, without being under the charge of an officer. The court set aside the verdict, and Yusney, J., in giving his opinion, cites and [47]*47expressly approves of the case of The Commonwealth v. McCaul. In reference to that case he says: “ The separation of the jury in that case was not under more exceptionable circumstances than in this; neither was there proof of any actual tampering or conversation .on the subject of the trial with the jurymen. The court held that it was not necessary that this should be proven in order that the verdict should be set aside and a new trial granted. This decision is, we think, supported by English authority.”
A few years later, the case of Overbee v. The Commonwealth (1 Robinson, 756) occurred in Virginia, in which the court having given five of the jurors leave to retire for a few minutes, attended by an officer, a sixth started after them unobserved by the court. This juror not returning with the other five, an officer was immediately sent to bring him in, which he did about a minute afterwards. There was a crowd about the door, but the juror testified that he held no communication with any one; and yet the court set aside the verdict.
In the case of Hines v. The State (8 Humph., 597), one of the jurors absented himself from the others ten or fifteen minutes. He testified that his absence was owing to indisposition, and that he had no communication with any one; but the court nevertheless granted a new trial.
The Supreme Court of Mississippi, in the case of McCann v. The State (9 Smedes & Marsh., 465), held, upon an indictment for murder, that when any portion of the jury have separated from the others and had intercourse or opportunity of intercourse with third persons, and it shall not affirmatively appear that no effect was produced upon the jury by such exposure, and the possibility of undue influence be not wholly negatived, the verdict will be set aside.
In the subsequent case of Boles v. The State (13 Smedes & Marsh., 398), which was also an indictment for murder, and in which, while the jury were deliberating, a barber had been admitted to their room and remained an hour or more, [48]*48and the jury had sat by the side of others at the table; the same court set aside the verdict, although the officer testified that he had heard no one speak to the jury about the case, and there was no proof that a word had been said by the barber on the subject of the trial.
In the case of Peiffer v. The Commonwealth (3 Harris, 468), in which the prisoner was indicted for the murder of his wife, after the jury were sworn, in consequence of a press of business in the quarter sessions, they were allowed by the express authority of the court, and with the consent of the prisoner’s counsel, to separate and go to their respective homes, under an arrangement that they should return on a particular day of the term to attend to the trial. The prisoner was convicted, and, upon writ of error, the conviction was reversed and a new trial ordered.
The Supreme Court of Tennessee also held, in the case of Wesley v. The State (2 Humph., 502), that a circuit court has no power in a capital case to authorize the separation of the jury, even with the consent of the prisoner and the counsel for prosecution.
These cases when combined produce a weight of authority far greater, in my view, than would be required to overbalance the ohiter dicta of the two judges in the case of The People v. Douglass. They establish incontrovertibly the doctrine that, while in civil cases and cases of misdemeanor, if the jury separate, either with or without the leave of the court, it will not vitiate the verdict, without additional evidence of irregularity or abuse, yet that in criminal cases of higher grade, and especially in capital cases, such a separation, for however short a time, will be fatal to a verdict against the prisoner, unless it is shown affirmatively on the part of the prosecution, by the clearest evidence and beyond a reasonable doubt, that no injury to the prisoner could have occurred in consequence of the separation.
Let the present case, then, be tested by these principles. We will look first at the irregularity disclosed by the [49]*49affidavit of Fielding. It is undisputed that Murray, one of' the jurors, separated from his fellows, entered the so-calledStillson block, in which he resided, and was absent, according to the statement of Fielding, in which he is confirmed by Targee, the constable, five minutes. During this time he was beyond the observation either of the constable or of any of his fellow-jurors, and the only explanation of what had occurred is from his own affidavit. It was once held that the affidavits of jurors could not be received at all to repel a charge of irregularity. In the case of Taylor and Webb, which arose in 1653, a motion was made to set aside the verdict because some writings had been delivered to the jury by a stranger. Lord Hale, who was counsel in the case, and opposed the motion, produced the affidavit of the foreman of the jury that they had not looked at the writings. But the court refused to listen to the affidavit. Rolle, Ch. J., said: “ The affidavit of the jury ought not to be allowed to make good their own verdict; for now they are, as it were, parties, and have offended, and shall not be allowed by their own oath to take off their offence.” (Trials per Pais, 225; Viner's Abr. Trial, 448, pl. 6.)
But, notwithstanding this early decision, it has no doubt been the practice of the courts to receive the affidavits of the jurors themselves in answer to a charge of irregularity or abuse. They have, however, generally been considered as an unreliable species of evidence. In Commonwealth v. McCaul (supra), Wilson, J., says: “From the mode in which collusion and tampering is generally carried on, such circumstance is generally known to no person except thé one tampering and the one tampered with, or the persons between whom a conversation might be held which might influence the verdict. If you question either of these persons on the subject, he must criminate or declare himself innocent, and you lay before him an inducement not to give correct testimony.”
[50]*50In the case of Hines v. The State (8 Humph., 597), the -court say: “The only witness who gives any explanation whatever is the offending juror. This affidavit, it is true, excludes the possibility that he was tampered with, if his testimony shall be deemed sufficient to establish the fact. But we do not think this affidavit can be relied on as proof of the innocence of his conduct.” But admitting that the affidavit of a juror who separates himself from his fellows is alone sufficient to repel the presumption of danger to the prisoner which arises from the bare fact of separation, what does the affidavit of Murray in this case show ? He simply says that “he did not say a single word, directly or indirectly, to a single person, after leaving the jury until his return to them, about the trial or the subject matter thereof.” He does not say who was in the house into which he went, how many persons he saw while there, nor what was said to him or in his hearing. It is not so much what jurors say to others that is to be guarded against as what others say to them. This affidavit affords no evidence whatever that the juror, while absent, did not hear remarks of the most improper character, which might have influenced him in regard to the verdict. I concede this to be improbable. But is probability enough where life is at stake ? As was said by Parker, J., in The State v. Prescott (supra), “these irregularities may not have affected the prisoner, but that is not enough. ■' Even if it was probable they had not, mere probability would not suffice.” If the separation of the juror Murray from his fellows was the only irregularity in the case, the strict legal rule would require us to say that it was not fully explained. But this is not all. The foreman of the juiy, Charles, also left his associates, entered a store, and had a conversation of some minutes with the proprietor, Coatsworth, upon private business of his own, without the consent or even knowledge of the officer having the jury in charge. This was highly improper, but if fully explained would not vitiate the verdict. The affidavit of Charles, [51]*51produced in explanation, is more full than that of Murray, and supported, as it is to some extent, by that of Coats-worth, may perhaps be regarded as sufficient to show that the verdict could not have been affected by the circumstance. But the affidavit of the officer, Targee, discloses a fact of serious import. He says that while. Murray was absent, “ several persons began to gather around the jurymen,” and that at his suggestion the other officer, Olmsted, “ started on with some of the jurymen upon Franklin-street to avoid the crowd of persons beginning to gather around them.” It is to be inferred that the persons gathering around them knew that they composed the jury in Eastwood’s case. What was said by the persons composing this crowd ? Of this we are not informed. It is true that all the jurors whose affidavits were read testify that they held no communication, directly or indirectly, with any person in regard to the trial during their absence from the hotel. I am disposed to consider this as equivalent to saying that they heard no remarks from any one bearing on the subject; but there are two of the jurors from whom no affidavit ■ is produced: who shall speak for them? It is-true that those jurors whose affidavits are produced severally swear that neither they themselves, nor any other of the jurors, to their knowledge, held any communication with any person at any time during their absence from the hotel, and this is confirmed by the affidavit of Targee; but when it is considered that not one of them, as they all swear, including the constable, Targee, was aware of the fact that the foreman, Charles, went into the grocery and had a conversation there of some minutes with Coats-worth, it may readily be seen how much their affidavits, as to what others did, are, under the circumstances, worth.
Now, in view of the fact, testified to by Targee, that the jury, while waiting for their associate, Murray, were so pressed upon by the crowd that the officers were compelled to separate them into two parties to avoid the throng, are we not bound to hold that the interest manifested by the [52]*52crowd on this occasion creates a probability that something was said in relation to the case of Eastwood which should be met and repelled? In the language of Parker, J., in the case of The State v. Prescott (supra), we may with propriety say: “If, in this resort to so public a place by jurors, during a trial which excited great interest, some of them did not hear remarks relative to the trial, or the guilt or innocence of the prisoner, it would-be a remarkable evidence of caution on the part of the spectators generally ; much greater caution than is usually exercised in such places upon like occasions.” Assuming, then, that it is satisfactorily shown that none of the ten jurors whose affidavits are produced heard any remarks from the crowd (a point upon which their statements are by no means explicit), how does it appear that the other two jurors heard nothing? In my view, we are without any reliable evidence on that subject, in respect to which the burden of proof was clearly thrown upon the prosecution.
But there is another irregularity to which, notwithstanding the prolixity into which I have been unwillingly led by my desire to make this matter clear, I feel bound to give a moment’s attention, viz., the visit of the six jurors to the scene of the homicide. I shall, however, pass over all the details of this visit, and all exposures to improper influences connected with it, except in a single aspect. It is a well settled rule that if a jury, after a cause is submitted to them, receive any kind of evidence which can have the most remote bearing upon the case, it will be fatal to their verdict. So scrupulously is this rule adhered to, that when the solicitor for the plaintiff, after the evidence was concluded, delivered a bundle of depositions to the jury, a portion of which were not in evidence, a verdict for the plaintiff was set aside, though the jury swore they had not opened the bundle. (2 Hale's P. C., 308.) In a case in Massachusetts,' where a paper having some relation to the suit got into the hands of the jury by mistake, the court set aside the verdict, and [53]*53refused to hear the testimony of the jury, that the paper had no influence upon their finding. (Whitney v. Whitman, 5 Mass., 405.) It was held in an old case that if the jury send for a book, after departure - from the bar, and read it, the verdict is voided. (Viner’s Abr. Trial, 451, pl. 18.) And Lord Tenterden, on one occasion, refused to send to the jury a law book which they requested, although the counsel on both sides consented. (Burrows v. Unwin, 3 Carr. & Payne, 310.) In a comparatively modern case it was held that any communication, even from the court, not made in open court and before the parties, will avoid the verdict. (Sergeant v. Roberts, 1 Pick., 337.)
Suppose, then, the jury in this case had applied to the court for leave to take to their room a map of the ground where the homicide was committed, and the court, without the knowledge of the prisoner or his counsel, had granted their request, is there any doubt, in view of the authorities to which I have referred, that it would have vitiated their verdict ? I apprehend there can be none; nor that, if the request granted had been to visit the ground, the effect would have been the same. Will it be contended that if the jury do that, of their own accord, which the court, if applied to, would have no power to authorize them to do, the verdict can stand ? This cannot be maintained.
It is said that the jury were walking for recreation merely, pursuant to the leave given them by the court, and that their coming upon the ground in question was purely accidental ; and such would be the inference from the affidavits of several of the jurors ; but Charles, the foreman, testifies that, as they approached the place, one of their number remarked that “ as they had got so near the ground they might as well go on down there” and in this he is confirmed by the affidavit of the officer, Targee. It is obvious, therefore j that their visit to the ground was intentional. Whether this visit had in fact any influence upon the verdict or not, the court will not inquire. It is plain that, in many cases, [54]*54a view of the localities concerning which the witnesses had testified would have a weighty influence in determining the credit due to such witnesses, and it could hardly fail, in any case, to have more or less effect either to confirm or weaken the force of their testimony.
If we are to exercise in this state the same care for the lives, of its citizens, and the same scrupulous regard for the purity and impartiality of the administration of justice, which is manifested in other states, it is in my opinion clear that the irregularities already commented upon, to say nothing of others to which I have not adverted, are sufficient to entitle the prisoner to a new trial.
But, notwithstanding this conclusion, I think it incumbent upon me to notice that branch of the motion, which is founded upon the exceptions taken at the trial.
It appears from the bill of exceptions^ that the death of Brereton was produced by a blow inflicted by the prisoner with a club, in a sudden affray between the deceased, Edward Brereton, and Daniel Brereton, on the one part, and the prisoner, Eastwood, and one La Rock, on the other.
The evidence of a premeditated design by the prisoner against the life of Brereton, which had the effect to produce a conviction of murder instead of manslaughter, consisted in certain expressions used by the prisoner in the course of the affray. He said a number of times that he would “kill” the deceased; and just before striking the fatal blow, on being told that if he struck the deceased he would kill him, he said, “ I mean to kill himand shortly after the blow, when told he had killed the man, he replied, “I meant to kill him.”
In the course of the trial one Green was called as a witness for the defendant, and testified that he was present at the affray; “that he noticed the prisoner, with whom.he was well acquainted; that something ailed him; that he appeared strange and wild, and acted quite differently from his usual manner; that he talked incoherently, and gave answers to [55]*55questions which were foreign to the purpose, and that his breath had the smell of liquor.” He further said, that he had been accustomed to see men who were intoxicated.
The counsel for the prisoner then asked the witness whether or not Eastwood, at the time of the affray, was in any degree . intoxicated. To this question the district attorney objected, on the ground that it called for the opinion of the witness, and insisted that the witness could only be permitted to give the facts, that is, to describe the appearance and conduct of the prisoner, leaving it for the jury to judge, from this description alone, whether he was intoxicated or not. The court sustained the objection and excluded the evidence, to which the counsel for the prisoner excepted. This exception presents one of the principal grounds upon which the prisoner’s counsel relies to obtain a new trial.
That it was of great importance, for the jury to know whether the prisoner was or was not intoxicated is obvious. It clearly did not necessarily follow, because the prisoner used the expressions I have referred to, that he really entertained the design which the words import. It not unfrequently happens that, when men are wrought up to a pitch of phrenzied excitement by intoxication or by passion, their language assumes a degree of violence far beyond any deliberate purpose which they have formed. Instances of this kind must have come under the observation of every man of experience. The very affray in question presents one which is strikingly illustrative of the truth here asserted. The companion of the prisoner, La Eock, had been severely beaten and bruised by Brereton, and when afterwards, having armed himself with a club, he struck Brereton a blow which felled him to the ground, he said: “Damn you,/.you have hilled me, and I’ll hill you.”
The prominent word here used is the same as that used by Eastwood, and upon the strength of which he was convicted of murder instead of manslaughter; and yet it could [56]*56hardly be contended that, when used by La Rock, it was indicative of an actual design to destroy the life of Brereton. This use of the word “ kill,” by the companion of Eastwood, and his partner in the affray, together with the frequent" use of the same word by Eastwood in the early part of the quarrel, and before his passion had risen to the pitch it afterwards attained, naturally suggest the possibility of a habit existing between the two of using this word as descriptive of a degree of bodily injury less that mortal.
I refer to this simply to show how important it was that the jury, who were to pass upon the delicate question of intent, upon which hung the life of Eastwood, should be possessed of every proper means of judging of his actual condition. If the mental disturbance arising from intoxication was added to that produced by excited passion, it would, of course, have a bearing upon the question to be tried. The evidence offered, therefore, was clearly material, and the question presented is, whether, upon an inquiry as to the intoxication of an individual at a particular time, the opinion of one who was present, and had full opportunity to judge, can be received.
It is a sound general rule, that testimony should consist of facts and not opinions; and this rule is to be departed from only in cases of necessity. As, however, the object of judicial investigations is to ascertain truth, whenever the opinions of witnesses are necessary to enable the jury to form a clear and accurate judgment upon the subject of inquiry, they are to be received. To reject them, under such circumstances, would be to reject the. only light by which the jury could be guided to a safe conclusion.
All such cases are exceptions to the general rule, that opinions are not evidence. Upon all questions of science, or those relating to some art of trade, the opinions of experts, i. e., of persons skilled in the particular science, art or trade, are necessarily resorted to; this forms the most prominent and familiar class of exceptions. But the [57]*57authorities show another class, equally well defined, and founded upon reasons no less cogent, although not so universally recognized. I will refer to a few cases belonging to the latter class.
In the‘case of McKee v. Nelson (4 Cow., 355), which was an action for breach of promise of marriage, a witness living with the plaintiff, and having daily opportunities of observing her conduct, was permitted to give his opinion whether the plaintiff was sincerely attached to the defendant.
It has been repeatedly, and, as I think, with the most obvious propriety, held that, upon questions relating to the sanity or mental capacity of the grantor in a deed, witnesses familiar with such grantor, 'and having the means of judging of his mental condition, may be permitted to give their opinions. (Culver v. Hoslam, 7 Barb. S. C. R.; De Witt v. Barley, 13 id., 550.)
In Morse v. The State of Connecticut (6 Conn., 9), Chief Justice Hosmer held that a witness might be permitted to give his opinion as to the age of an absent person at a particular time, provided he accompanied his opinion by a statement, as far as practicable, of the fact indicative of the age.
The ground upon which opinions are received in all these ■ cases are the same, viz., the impossibility of adequately describing in language those minute facts and appearances upon which a j udgment, as to the main act, must necessarily depend.
There are obviously many other cases falling within the same reason, and to which, of course, the same rule should be applied. One such case is very forcibly presented by Gaston, J., in the case of Clay v. Clary (2 Iredell L. R., 78). He says: “ And so it is in regard to questions respecting the temper in which words have been spoken or acts done: [58]*58Were they said or done kindly or rudely, in good humor or in anger, in jest or in earnest? What answer can be given to these “ inquiries, if the observer is not permitted to state his impression or belief? Must a fac simile be attempted, so as to bring before the jury the very tone, look, gesture and manner, and let them collect therefrom the disposition of the speaker or agent?”
How does the case we are considering differ in principle from the case put by this learned judge. May it not be asked with propriety here, “ Must a fac simile be attempted, so as to bring before the jury the very tone, look, gesture and manner” of Eastwood, in order to enable them to judge whether he was intoxicated or not? Would it be possible for the jury to judge with any certainty from any mere description which it would be in the power of the witness to give ? I think it very clear that they would not. The question put to the witness Green was, therefore, in view of the principles and authorities to which I have referred, improperly overruled; and for this error, as well as on account of the irregularities of the jury, the prisoner is entitled to a new trial.
Judgment reversed and new trial ordered.
Overruled. (5 Seld., 371.)