Sharkey, C. J.:
Whilst the law is rigidly vigilant in guarding and preserving the purity of jury trials, yet it will not, for light or trivial causes, impugn the integrity of juries, or question the impartiality of their verdicts. But if the verdict be given under circumstances which might conduce to an improper influence, or the natural tendency of which might be to produce bias or corruption, it cannot then be said to be above suspicion; and if it be not, it must fall short of that perfection which the law requires, and which, under a more guarded administration, it is capable of producing. It is not necessary that any attempt should be made to bias the minds of jurors, or that any pernicious influence should be exerted. The door to tampering is to be closed; this is the only security ; for if it be left open, it may be predicted with certainty that the evil consequences will fall somewhere.
This question has received repeated adjudications, and it will be sufficient for me to refer to some of the decided cases, in which the reasoning is, to my mind, conclusive, and the rule clearly defined.
In the case of the Commonwealth v. Roby, 12 Pick., 496, the question was very fully considered, and it is made so clear that [140]*140I shall give the language of the chief justice somewhat at length. In giving the general rule he says : “ It is a well settled rule of practice incident to all jury trials, that after the jury are charged and have left the court to consider of their verdict, they are to be kept by themselves, without refreshment and without communication with others, until they have agreed. Any departure from this rule is an irregularity; but it is not every irregularity which will render the verdict void, and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to aifect the impartiality, purity, and regularity of the verdict.”
I might here pause and inquire, what irregularity will, and will not vitiate the verdict ? The object of jury trials suggests the answer. Common reason dictates to us what might affect the “impartiality, purity, and regularity” of a verdict, and whatever might have that effect, will vitiate it, as will appear from the conclusions of Judge Shaw. After he has reviewed many of the authorities, he concludes by saying, “ the result of the authorities is that when there is an irregularity which may affect the impartiality of the proceedings, as where meat and drink or other refreshments have been furnished by a party, or where the jury have been exposed to such influence, as where they have improperly separated themselves, or have had communications not authorized, there, 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 that which was improperly and may have been corruptly done; or where the irregularity consists in doing that which may disqualify the jurors from proper deliberation and exercise of their reason and judgment, as where the act done is contrary to the ordinary forms, and to the duties which jurors owe to the public, the mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the officers, but such irregularity has no tendency to impair the respect due to such verdict.” To me it seems that the line of distinction is here so clearly drawn, that it is impossible to mistake it, and so fortified by reason as to place it beyond doubt. It is briefly this: If the purity of the verdict might have been affected, it must be set aside; if it [141]*141could not have been affected, it will be sustained. A verdict upon which doubts might rest cannot be good. The same learned judge says, “it must command entire confidence.”
The reasons here given run through all the decided cases. In the case of the Commonwealth v. McCall, 1 Va. Cases, one of the jurors separated from his fellows, but for a few minutes, and spoke to no one about the trial, yet a new trial was granted. So in the case of McLain v. State, 10 Yerger, 241, in which a part of the jury separated from the balance for fifteen or twenty minutes pending the trial; this was held sufficient ground for a new trial. In neither of these cases was any such thing as a tampering with a jury shown. The courts both held that to be unnecessary, and say that is sufficient that they might have been subject to improper influences. In the last case the court said “ there would be no safety in a different rule of practice, for it would be almost impossible ever to bring direct proof of the fact that it was done.” These decisions are evidently based upon the same principles with that first cited, to wit, that the purity of the verdict might have been affected.
In the case of Knight v. Inhabitants of Freeport, 13 Mass. R., 218, the verdict was set aside because a party indirectly interested spoke to one of the jurors and told him he was deeply interested in the case, and that it was a spiteful thing on the part of the plaintiff. This case is only cited to show the degree of strictness necessary to make a valid verdict. The court said “ too much care and precaution could not be used to preserve the purity of jury trials.” This strictness is necessary to give due confidence to the parties in the results of their causes; and every one ought to know that for any, even the slightest inter-meddling with jurors, a verdict will be set aside.
In the case of Perkins v. Knight, 2 N. H., 474, the court say that “ it is of the highest importance that jurors should be preserved not only from all improper bias in causes, but even from the suspicion of improper bias.”
It only remains to make an application of these principles to the case before us. If, for a separation of the jury, which occasions a mere exposure to improper influence, a new trial will be granted, why should it not in the present case % The thing to [142]*142be guarded against is improper influence. Can it not be as well exercised in the jury-room by an individual who has the art and capacity to exercise it, as it can anywhere else ? Woodley was •with the jury, how long it is not known ; who can say that he did not speak of the guilt of the prisoner ? Who can say that he had not influence, and that his influence was not exerted to procure a verdict of guilty? If it was legal for Woodley to be with the jury, it would also be legal for any one else to be there. Suppose that he had been the prosecutor, and an influential man, could it be said, under such circumstances, that the verdict was free from suspicion ? Could every one rely on it as the voice of an impartial jury ? Can there be any difference between admitting a stranger into the jury-room, and admitting him into the company of the jury after they had dispersed ?
To me it seems that all the evils are fully incurred by letting an unauthorized person into the jury room, that could be incurred by letting them separate. It seems to be a proposition too clear to admit of a doubt, that in this way the verdict might be tainted with corruption or bias. If so, the rule winch I have before stated will apply. It applies with all its force. If the sanctity of the jury room may be violated by an intruder, there is an exposure to his influence, and when the opportunity has been offered, no one can say that it has not been used. The verdict is opened to suspicion, and does not, nor cannot command respect and confidence. An artful man might infuse the poison in a few words.
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Sharkey, C. J.:
Whilst the law is rigidly vigilant in guarding and preserving the purity of jury trials, yet it will not, for light or trivial causes, impugn the integrity of juries, or question the impartiality of their verdicts. But if the verdict be given under circumstances which might conduce to an improper influence, or the natural tendency of which might be to produce bias or corruption, it cannot then be said to be above suspicion; and if it be not, it must fall short of that perfection which the law requires, and which, under a more guarded administration, it is capable of producing. It is not necessary that any attempt should be made to bias the minds of jurors, or that any pernicious influence should be exerted. The door to tampering is to be closed; this is the only security ; for if it be left open, it may be predicted with certainty that the evil consequences will fall somewhere.
This question has received repeated adjudications, and it will be sufficient for me to refer to some of the decided cases, in which the reasoning is, to my mind, conclusive, and the rule clearly defined.
In the case of the Commonwealth v. Roby, 12 Pick., 496, the question was very fully considered, and it is made so clear that [140]*140I shall give the language of the chief justice somewhat at length. In giving the general rule he says : “ It is a well settled rule of practice incident to all jury trials, that after the jury are charged and have left the court to consider of their verdict, they are to be kept by themselves, without refreshment and without communication with others, until they have agreed. Any departure from this rule is an irregularity; but it is not every irregularity which will render the verdict void, and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to aifect the impartiality, purity, and regularity of the verdict.”
I might here pause and inquire, what irregularity will, and will not vitiate the verdict ? The object of jury trials suggests the answer. Common reason dictates to us what might affect the “impartiality, purity, and regularity” of a verdict, and whatever might have that effect, will vitiate it, as will appear from the conclusions of Judge Shaw. After he has reviewed many of the authorities, he concludes by saying, “ the result of the authorities is that when there is an irregularity which may affect the impartiality of the proceedings, as where meat and drink or other refreshments have been furnished by a party, or where the jury have been exposed to such influence, as where they have improperly separated themselves, or have had communications not authorized, there, 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 that which was improperly and may have been corruptly done; or where the irregularity consists in doing that which may disqualify the jurors from proper deliberation and exercise of their reason and judgment, as where the act done is contrary to the ordinary forms, and to the duties which jurors owe to the public, the mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the officers, but such irregularity has no tendency to impair the respect due to such verdict.” To me it seems that the line of distinction is here so clearly drawn, that it is impossible to mistake it, and so fortified by reason as to place it beyond doubt. It is briefly this: If the purity of the verdict might have been affected, it must be set aside; if it [141]*141could not have been affected, it will be sustained. A verdict upon which doubts might rest cannot be good. The same learned judge says, “it must command entire confidence.”
The reasons here given run through all the decided cases. In the case of the Commonwealth v. McCall, 1 Va. Cases, one of the jurors separated from his fellows, but for a few minutes, and spoke to no one about the trial, yet a new trial was granted. So in the case of McLain v. State, 10 Yerger, 241, in which a part of the jury separated from the balance for fifteen or twenty minutes pending the trial; this was held sufficient ground for a new trial. In neither of these cases was any such thing as a tampering with a jury shown. The courts both held that to be unnecessary, and say that is sufficient that they might have been subject to improper influences. In the last case the court said “ there would be no safety in a different rule of practice, for it would be almost impossible ever to bring direct proof of the fact that it was done.” These decisions are evidently based upon the same principles with that first cited, to wit, that the purity of the verdict might have been affected.
In the case of Knight v. Inhabitants of Freeport, 13 Mass. R., 218, the verdict was set aside because a party indirectly interested spoke to one of the jurors and told him he was deeply interested in the case, and that it was a spiteful thing on the part of the plaintiff. This case is only cited to show the degree of strictness necessary to make a valid verdict. The court said “ too much care and precaution could not be used to preserve the purity of jury trials.” This strictness is necessary to give due confidence to the parties in the results of their causes; and every one ought to know that for any, even the slightest inter-meddling with jurors, a verdict will be set aside.
In the case of Perkins v. Knight, 2 N. H., 474, the court say that “ it is of the highest importance that jurors should be preserved not only from all improper bias in causes, but even from the suspicion of improper bias.”
It only remains to make an application of these principles to the case before us. If, for a separation of the jury, which occasions a mere exposure to improper influence, a new trial will be granted, why should it not in the present case % The thing to [142]*142be guarded against is improper influence. Can it not be as well exercised in the jury-room by an individual who has the art and capacity to exercise it, as it can anywhere else ? Woodley was •with the jury, how long it is not known ; who can say that he did not speak of the guilt of the prisoner ? Who can say that he had not influence, and that his influence was not exerted to procure a verdict of guilty? If it was legal for Woodley to be with the jury, it would also be legal for any one else to be there. Suppose that he had been the prosecutor, and an influential man, could it be said, under such circumstances, that the verdict was free from suspicion ? Could every one rely on it as the voice of an impartial jury ? Can there be any difference between admitting a stranger into the jury-room, and admitting him into the company of the jury after they had dispersed ?
To me it seems that all the evils are fully incurred by letting an unauthorized person into the jury room, that could be incurred by letting them separate. It seems to be a proposition too clear to admit of a doubt, that in this way the verdict might be tainted with corruption or bias. If so, the rule winch I have before stated will apply. It applies with all its force. If the sanctity of the jury room may be violated by an intruder, there is an exposure to his influence, and when the opportunity has been offered, no one can say that it has not been used. The verdict is opened to suspicion, and does not, nor cannot command respect and confidence. An artful man might infuse the poison in a few words. We cannot know that Woodley did not do so; or even if we could be satisfied that he did not, another person, on another occasion, might, and the law is to operate by general rules. If it were lawful for him to be there, it -would also be lawful for another person. If lawful for one person, why not for two or more ? One man may effect as much as more could. It is the duty of the court to swear an officer to take charge of the jury; his oath is, that he will not speak to them or permit others to do so. How useless is this ceremony, if the officer may commit the jury to the keeping of one who is not sworn. Suppose the court had called a mere by-stander who was not sworn, to go out with the jury, would a verdict under such circumstances be good ? It would not; and yet, are we to permit the officer to [143]*143leave tbe jury in an exposed room under tbe charge of any intruder that may thrust himself into the presence of the jury ? Suppose twelve men had been admitted, who could say whether the verdict was the voice of those who had been sworn, or those who had not? and if one be admitted, certainly twelve might with the same propriety. One man could exert all the art, ingenuity, and malice, that twelve could. I must think that this verdict is within the rule. The irregularity might have affected its purity. I am therefore led to the conclusion that a new trial should be granted.
Smith, J. concurred.