Lester v. Stanley

15 F. Cas. 396, 1 Brunn. Coll. Cas. 58, 3 Day 287

Opinion

AFTER this case had been committed to the jury, . . . . .' , , and they were about to retire, Livingston, j. remarked, that he understood it had sometimes been the practice with juries in this state to separate while they had a J J case under consideration. The rule of the common law requires them to be kept together until they have agreed on a verdict; and on looking at the statute, we do not perceive that that varies it. The statute, indeed, appears to have been made in affirmance of the common law. The words are explicit: “ And when the court have committed any case to the consideration of the jury, the jury shall be confined, under the custody of an officer appointed by the court, until they are agreed on a verdict.”

(a) If they separate before, and after-wards return a verdict, it will be set aside'.

Tit. fi. ch. 1. s. 11. This clause was passed as early, at least, as 1702; for it appears in the edition of the statutes published that year, and has not since undergone the slightest variation. The courts, for many years afterwards, were astute to enforce a compliance with the injunction it contains. In the case of Cyprian JVicolh v. Joseph Whiting', before the superior court in Hartford county, September terra, 1711, the parties having been heard, and the issue committed to (he jury, hi the evening, Richard Skinner, a constable and officer of the court, was charged to go out with them, and attend them under their confinement, until they should have agreed on their verdict. The court then adjourned until the next morning ; when the officer came into court, and gave information, that the jury, on the preceding eve» ning, before they had agreed on any verdict, broke loose from their confinement, or, in other words, went out. of the room to which he had conducted them, each one where he pleased Upon which, the officer was ordered to command their attendance in court forthwith. They accordingly appeared, acknowledged the fact, and offered their several excuses. Some of them said, they thought it their duty to stay until they were agreed, and were willing to do so, but their iellows left them. Others alleged the carelessness of the officer as a palliation of their offence. The result was as follows, which i choose to give in the ■words of the record:

« The court having considered this matter, the disorder of the jury in the liberty they have taken to scatter and disperse before they had agreed on any verdict, xvhich is directly contrary to the laxo, and u great prejudice to the administration of justice in many respects, are unanimously of opinion hot to receive any verdict made after the separation, either while they are so separate, or whensoever they can convene again. It is, therefore, resolved, that the money they received of the plaintiff be returned to the plaintiff"; w|iich was accordingly done in court. And resolved, that thi- action be continued V< the next superior cauri to he holdeu in //a? Ifurd, the third Tuesday in March next* where it shall have a tivdT R