Jumpertz v. People

21 Ill. 375

• Court: Illinois Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinions

Caton, C. J.

The great length of the record and of the written arguments in this cause, together with the necessity of filing the opinion of the court at the announcement of the decision, which has to be prepared during the term, while other business is pressing upon us, prevent us from even noticing all the points which have been raised and discussed, and, most of those which are noticed, must be treated very succinctly.

The receipt signed by the deceased, and the letter written by the prisoner, for the purpose of proving, by a comparison of the hand-writing of the two, with the letter produced by the prisoner, on the trial, as having been written by the deceased, was not written by her, but was written by the prisoner, was in violation of a well-settled rule of law, and should not have been admitted. The rule that the genuineness of hand-writing cannot be proved or disproved, by allowing the jury to compare it with the hand-writing of the party, proved or admitted to be genuine, obtains in criminal as well as in civil cases. The genuineness of a promissory note could not be so proved, though the matter in controversy did not amount to five dollars. Certainly, then, where the life of a human being may depend on the result, the rule of law cannot be less strict. We shall not stop now, to discuss the propriety or reason of this rule. It is sufficient that it is well settled, and universally observed.

Nor can we approve of the exhibition to the jury, during the recess of the court, of the door, screws, hooks, etc., or the experiments made with them, in the presence of the jury, during the trial. We will not say, that in no case can experiments be made in the presence of the jury, for the purpose of illustrating some point in controversy. Such a proceeding, to say the least, is very uncommon, and should be permitted by the court with great caution. We will not say that, were this the only ground for reversing this judgment, that we would yield to it.

In opening their defense to the jury, the counsel for the prisoner had stated, that the theory of the defense was, that the deceased had committed suicide, and that they should, upon the trial, introduce proof tending to show a frame of mind in her, predisposed to that act. In view of this, the court permitted the prosecution to show her acts and declarations, on all subjects, for several months previous to her decease, for the purpose of proving that she was in a cheerful and healthful mental condition, and not predisposed to suicide. It would have been better and more regular, no doubt, for this testimony to have been reserved, till after the testimony of the prisoner on this point had been adduced. Although his counsel had stated in their opening, that they should introduce the testimony stated, and insist that the deceased died by her own hands, yet they had an undoubted right to change their minds on that subject, and adopt another line of defense, after the evidence for the prosecution had closed. It was only proper as rebutting evidence, and its proper and legitimate order, was after the testimony for the defense was closed. The minds of the jury should not be forestalled or prejudiced upon any subject, by rebutting evidence, when there was as yet no testimony upon the subject to rebut. It was the right of the defense first to occupy that field of inquiry.

That the acts and declarations of a person alleged to be ■insane, or predisposed to suicide, are competent to prove a contrary state of mind, is not and cannot be doubted, but then they should be only such acts and declarations as fairly tend to prove the mental condition of the person alleged to be mentally diseased; and care should be taken by the court, that under a pretense of proving this mental condition, other acts and declarations, not fairly bearing on this point, be not admitted, for other and illegitimate purposes; and it is one of the most sacred duties of the court, to adopt every possible precaution, that the evidence thus admitted be not perverted to other purposes, by admonishing the jury, that such declarations do not in the least tend to establish the truth of any fact thus proved to have been stated by the deceased, and also by sternly rebuking any attempt, or the least approach towards it, by the counsel for the prosecution, intimating to the jury that such statements tend in the least degree to establish the truth of the facts related. Indeed, any such course would not only be an unlawful and wicked attempt upon the life of the prisoner, but would betray a consciousness of weakness in the case made against him. While, from the necessities of the case, such testimony must be admitted, the temptation is very great for counsel, in their zeal and in the excitement of the trial, to extend its influence beyond its legitimate object; and it is very difficult, if not absolutely impossible, for the jury to divest their minds of the impressions which it is calculated to make, as tending to establish the truth of the facts stated in such declarations, in spite of every effort of the court and counsel on both sides, to confine its influence within its legitimate purposes. While some of the statements of the deceased, which were sworn to by the witnesses, are no doubt justly subject to criticism, as not fairly tending to elucidate her mental condition in the regard referred to, yet it was perhaps no more so than would inevitably creep into the case, in spite of the strictest precautions on the part of the court, and without any intentional unfairness on the part of the counsel for the prosecution. While, from the character of the statements of the deceased, which were proved, we cannot divest ourselves of the apprehension that the jury were unable to divest themselves of all improper impressions, which such statements were calculated to produce on their minds, we do not think we should be called upon to grant a new trial for this cause.

The irregularities alleged in the conduct of the jury, alone remain to be considered. They are shown by the following affidavits:

“ Abner Sutton, being sworn, etc., says : That he is a deputy sheriff of Cook county, and was one of the officers who had charge of the jury in said case. That at noon of the first day after the jury was empanneled, and the testimony commenced, I was directed by John Everts, another deputy sheriff, to take one of the jury, by the name of Loomis, to his own house, to see a member of his family, who was sick. I took said Loomis, separately from the rest of the jury, from the court house, to his own house, in Edina Place, from one-half to three-fourths of a mile. When arrived at his house, he left me sitting in the parlor, and went up stairs, and was absent from me ten or fifteen minutes, or more. I did not know who was in the upper story of the house. I then accompanied said juryman back to the Sherman House, where he and I took dinner at the public table. On the next day, the same thing was done again, and the juror remained up stairs the same time as before.”

“ Ira Snow, being sworn, etc., says: That during the argument of said cause by counsel, one of the jurymen, by the name of Bliss, was separated from the rest of the jury, and left in the court room, while the rest of the jury went to the hotel to dinner, for half an hour or more; that affiant, as deputy sheriff, remained with said Bliss; that when the doors were opened, he put the jurymen in an adjoining room, and that a woman, purporting to be the wife of said Bliss, remained in the court room and conversed with him during the time ; that he did not hear them (Bliss and the woman) speak of the case, except as to how long it would probably last; but they talked a good deal together in a whisper, which affiant did not hear and understand.”

“ Simeon T. Prince, being sworn, etc., says : He is deputy sheriff of Cook county, and had charge of the jury during the trial of said case. That on the evening of the second day of the trial, at the direction of Mr. Curtis, another deputy, he accompanied one of the jurymen, named Loomis, from the court house to his own house, in Edina Place, from half to three-quarters of a mile ; no one else went with us; when arrived at the house, he left me in the parlor, and went up stairs out of my sight, and remained absent about ten minutes, and then came back to me with a woman, who, I was told, was his wife; and after conversing with her ten or fifteen minutes, went back with-me to the court house; on the next evening, the same thing occurred again, in the same manner. During the trial, the jury were lodged at the Sherman House (a hotel), in two different rooms, five in one, and seven in the other, in different stories of the house. On one morning, while the said trial was in progress, I accompanied the whole of the jury to the house of said Loomis, and left him there, and accompanied the balance of the jury about the distance of a block, to the house of another juryman; I there waited in front of said house while said last named juryman went in, and was gone out of my sight, in the house, some five minutes; I then went back to the house of Loomis, who was out of my sight and presence about fifteen minutes; no officer accompanied either of said jurymen.”

These affidavits are uncontradicted and unexplained, except that the court states, that in consequence of sickness in his family, he permitted the juror Loomis to visit his family, nor does he state that he authorized the juror to go out of the presence and control of the officer of the court, in whose charge he was permitted to visit his sick family. Whatever strictness may have existed in former times, not only in reference to insulating the jury from the outside world, but also in depriving them of the comforts and even necessaries of life, while they had the prisoner in charge, the higher civilization and greater humanity of more modern times, permits the court, in the exercise of a cautious discretion, to provide for the jury every requisite for their comfort and convenience, compatible with a safe seclusion from extraneous influences, and even in case of urgent necessity, the court may be warranted in permitting a juror to be separated from his fellows, so far as to be permitted to visit a sick family, but in such a case, prudence requires that a special order be entered, authorizing the separation, and the juror placed in the charge of an officer of the court, specially sworn to take charge of him, and not permit him to depart from his sight or hearing, and not to converse with him, himself, nor permit him to converse with any other person about the case on trial, during the separation, and return him to his fellows so soon as the object which occasioned the separation, shall have been accomplished.

In the case before us, four of the jurors, upon six different occasions, separated from their fellows, and out of the presence or hearing of any officer of the court, were permitted to hold intercourse with strangers to the court,, and the cause on trial, and there is no pretense that the court authorized or was privy to more than one of these separations, and it does not appear, nor are we to presume, that the court authorized the juror to hold intercourse with others, out of the presence or hearing of an officer of the court. No necessity or occasion for the other separations is pretended.

In McKinney’s Case, 2 Gilm. R. 553, this court said, “ The law in capital cases undoubtedly is, that from the commencement of the trial till the rendition of the verdict, the jury during all the adjournments of the court, should be placed in charge of an officer, unless it is otherwise ordered by the court by the consent of the accused, and the attorney for the People.” Again, “In this case, if the jury did separate without the consent of the prisoner, it was an irregularity, and the court below would, upon the fact being established, have been bound to set aside the verdict and grant a new trial, unless such separation was the result of misapprehension, accident or mistake on the part of the jury, and under circumstances to show that such separation could by no possibility have resulted to the prejudice of the prisoner.”

This is from a case where many of the rules and absurd technicalities, in favor of the prisoner, which governed the English courts in the trials of capital cases, are swept away, as not constituting a part of the law under our criminal code, and an opinion by one of the most enlightened and humane judges that ever sat upon this bench, who, while dashing aside with a vigorous hand, but an enlightened discrimination, those senseless technicalities which the sanguinary laws of England extorted from humanity rather than from reason, lays down a rule for the government of juries, which in all times and under all governments, is absolutely indispensable to protect the accused against a whirlwind of passion and prejudice which may be raging beyond the circle which surrounds the court of justice, within which the most calm and solemn serenity and unbiased judgment should alone prevail. If ever the time shall come when juries are not kept entirely separated from, and in utter ignorance of the prejudices and cries of the public, which may call for the blood of a victim, then no man will be safe,—the innocent as well as the guilty is in danger of being tried by a public mob, and condemned, in a frenzy of excitement, where suspicion may be aroused without cause, and culminate into condemnation without reason or reflection. Human passions and prejudices, like fire, increase, rage and intensify by their likes which surround them, and with which they commingle. It is in such times as these that the least contact of the jury with this outside pressure endangers the innocent as well as the guilty. The poison distilled by public prejudice, may, by little more than a moment’s exposure, be diffused through the jury room, intimidating the weak and exciting the impulsive. It may be that in this case, there was no outside excitement and no public prejudice, which could have been likely to have communicated itself to the jury on the many and protracted exposures of its different members, which are shown to have occurred. Of this we cannot and would not know anything. As one rule must govern all cases, that rule must be such as not to endanger the innocent, against whom circumstances may excite a strong suspicion and for which public clamor demands a victim. It may be that not in one case in a hundred is there an actual necessity for thus isolating the jury from the outside world, but the hundredth case demands it as much as if the necessity actually existed in every case. The law presumes, and the history of the world shows, that there may be danger of improper influences disturbing the mind of the jury, and hence there can be no safety unless every case is so tried as to exclude all doubt from such causes.

Important as this case may be to him and to the public, yet the fate of Henry Jumpertz sinks into insignificance compared with that of the thousands of innocent men whose fate may depend upon the rule we are to fix for the conduct of jurors in capital cases. No community can be always exempt from unjust and even absurd excitements, which at the best, will infect the atmosphere of the jury room. And instances have been known where even the equilibrium of courts has been disturbed by such influences. History furnishes a lamentable instance of this in the so called Popish Plo.t. But fortunately such instances are very rare. Against such hazards no rule of law which may be adopted can effectually protect the innocent.

In the language of Mr. Justice Lockwood, above quoted, if from any cause there is a separation of the jury, it must be “ under circumstances to show that such separation could by no possibility have resulted to the prejudice of the prisoner.” What are the facts here ? On six different occasions did members of this jury hold intercourse with persons we know not whom, and we are in total ignorance of the nature, character, and extent of the communications which passed at those interviews. Whether the time was spent in imbibing the prejudices which others may have felt towards the prisoner, or in sympathizing and assisting the sick and afflicted at home, we do not and cannot know. The prisoner had no means of informing us for he could not call upon the jurors to disclose what transpired, and the officer of the court, in whose charge the jurors should have continued, and upon whose fidelity and integrity the prisoner must rely, and upon whom he should be enabled to rely with the most sacred confidence,—that officer, we say, was not present to watch over and protect the interests of the prisoner. He whom the law would permit to tell of any misconduct, was not present, and hence could say nothing more than that the jurors were separated, away, and among strangers. They may have been exposed to the most fatal influences. It is not enough to say that the probabilities are that no such fatal mischief was wrought. It possibly might have been. We do not know, and cannot say that it was not. And unless we, from this bench, can tell the prisoner, that during these many interviews with, we know not whom, no harm was done him, nothing was said to his prejudice, no outside influences brought to bear against him, then we are bound to grant him a new trial. We have no warrant for saying this. We cannot so assure him, and hence we must take the other alternative, and allow another jury to pass upon his case. This record also shows, that on some occasions, at least, some of the jurors were permitted to dine at the public table of a hotel. This cannot be sanctioned by this court, and should not be tolerated by any court.

There are many other points which have been raised by the prisoner’s counsel, and discussed with great ability, and most commendable industry, but which we cannot with propriety now stop to examine. Our silence must be understood as approving of the decisions of the Circuit Court thus questioned.

The judgment of the Circuit Court is reversed and the cause remanded, with directions to award a new trial.

Judgment reversed.