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except depositions, may be taken to the jury room, also jurors' notes, 2

Papers not in evidence,3 judges' minutes, 4 maps, books of law 6 or science? may not be taken to the jury room.

The presence of improper papers or books in the jury room will not vitiate a verdict if it appear that they did not influence the same. 8

art. 1303

Statutes-Civil.- Alabama Code writing. Rev. Code Iowa 1887, 8 27971886, 2757; California Code Civil See also Hairgrove v. Mellington, S Proc., 9 612; Colorado Code Civil Proc. Kan. 480. And it would seem they may 1887, § 191; Delaware Rev. Code 1874, go in all cases in Alabama. Code 1850, p. 649, 0 26; Illinois, 2 Stan. & C., Ili. Š 2757. Stat. 1885. p. 1817, 00 55, 56; Iowa Rev. 2. Cowles v'. Hayes, 71 N. Car. 231. Code 1887, § 2797; Minnesota Stat. Statutes — Civil. --Cal. Code Civil 1878, ch. 66, § 231; New Jersey Rev. Proc., 9612;Colo. Code Civil Proc. 1887, Stat. 1877, p. 876, § 182; Oregon, i Hill's ( 191; Minn. Stat. 1878, ch. 66, § 231; Laws 1887, s 204; Texas Stat. 1888, Comp. L. Nev. 1873, § 1230; i Hill's

Laws Oreg. 1887. ♡ 204. Statutes-Criminal.- Arkansas Dig. Statutes-Criminal.--Cal. Penal Code, Stat. 1874, Ø 1942; California Penal 91137; Rev. Code Iowa 1886, 00 4552-3; Code, ø 1137; Iowa Rev. Code 1886, $$ Minn. Stat. 1874. ch. 114, § 15; Comp. 4452–3; Kentucky, All papers and L. Nev. 1873, s 2017; 4 R. S. N. Y. other things received in evidence.” 1882, § 426; 1 Hill's L. Oreg. 1887, Ø Bullett Ky. Crim. Code, 9 248; Minne. 204. Contra, Nichols v. State, 65 Ind. sota Stat. 1874, ch. 114, § 15; Nevada 512; Long v, State, 95 Ind. 481. Comp. L., Nev. 1873, Ø 2017; New York, 3. Alger Thompson, 1 Allen * Any paper or article in evidence, but (Mass.) 453; Munde v. Lambre, 125 only on consent of the defendant and Mass. 367; State v. Lantz, 23 Kan. 728; counsel for the people.” N. Y. Code Heffron v. Gallupe, 55 Me. 563; Toohy Cr. Proc., Laws 1881, ch. 442; 4 R. S. v. Lewis, 78 Ind. 474; McLeod v. Ry. 1882, § 425; Oregon, same as civil cases; Co., 71 Iowa 138. Texas Code Crim. Proc. 1879, art. 684. 4. Neil v. Abel, 24 Wend. (N. Y.)

1. Depositions are withheld because 185; Mitchell v. Carter, 21 N. Y. Supr. it would be unequal that while the jury Ct. 448; Steadwell v. Morris, 61 Ga. 97. were not permitted to call the witnesses 5. In a road case. State v. Hartbefore them, who had been examined mann, 46 Wis. 248; State v. Lantz, 23 in court, they should take with them the

Kan.728. depositions of other witnesses not so 6. Merril v. Nary, 10 Allen (Mass.) examined. Alexander v. Jameson, 5 416; State v. Smith, 6 R. I. 33; State v. Binn. (Pa.) 238. See also Udderzook Harris, 34 La. An. 18; State v. Tanv. Com., 76 Pa. 340; Welch v. Ins. Co., ner, 38 La. An. 307. In criminal cases 23 W. Va. 288; Shields v. Guffey, 9 the rule is not always strictly applied. La. 322. Contra, Shuley v. State, 29 Loew v. State, 60 Wis. 559; Dak. Ter.

v. Taylor, i Dak. Ter. 479; State v. In several States depositions are ex- Hopper, 71 Mo. 425. See Thompson cluded from the jury room by statute. on Trials, $ 2586.

Civil. -Cal. Code Civil Proc., ģ 622; 7. For this amounts to expert testiColo. Code Civil Proc. 1887, § 191; Del. mony. State v. Gilleck, 10 Iowa 98. Rev. Code 1874, p. 649, 26; 2 Stan. & The defence in a case was moral inC., Ill. Stat. 1885, p. 1817, s 5556; sanity and insanity from intoxication. Minn. Stat. 1878, ch. 66, § 231; i Hill's The jury read newspaper accounts of Laws Oreg. 1887, § 204; Stat. Tex. the Guiteau trial and the testimony of 1888, art. 1303; Comp. L. Nev. 1872, s an expert for the government, express1230.

ing disbelief in moral insanity. A new Criminal.-Cal. Penal Code, g 1137; trial resulted. Moon v. State, 68 Ga. Rev. Code Iowa 1887, $$ 4452–3; Comp. 687. L. Rev. 1873, ( 2017; 1 Hill's Laws Oreg. 8. As when not read by jury. Wil1887, 204

kins v. Maddrey, 67 Ga. 766; State v. Depositions may go to the jury room Harris, 34 La. An. 118; State v. Tanin lowa when all the testimony is in ner, 38 La. An. 307; Schmertz v. John

Ark. 17

10. Ilegal Methods of Arriving at a Verdict.-Chancel and quotient 2 verdicts will always be set aside.

A verdict obtained through coercion or restraint of the jury may be set aside.3

11. Misconduct, How Shown.— Jurors are presumed to have conducted themselves properly until the contrary is shown.

Misconduct of jurors, unless it occurs in open court, cannot be proved by their affidavits, nor by the affidavits of third

must

S.) 55:

son, 72 Ga. 472. See also Winslow v. charge you until you agree upon a verCampbell, 46 Vt. 746; State v. Tindall, dict," the verdict was set aside for con10 Rich. (S. Car.) L. 212; Humes v. straint. Slater v. Mead, 53 How. Pr. Ry. Co., 71 Iowa 138; Perry v. Cot- (N. Y.) 57. tingham, 63 Iowa 41; Bulen,v. Granger, 4. People v. Williams, 24 Cal. 31; 58 Mich. 274; Wilds v. Bogan, 57 Ind. Parshall v. Ry. Co., 35 Fed. Rep. 649; 453; Shields v. Gaffey, 9 Iowa 322. Matlico v. State, 18 Ga. 343.

1. 3 BI. Com. 376; Mitchell v. Ehle, 6. Knight v. Freeport, 13 Mass 218. 10 Wend. (N. Y.) 395; Levy v. Bran- 6. “The court

derive their nan, 39 Cal. 485; Polhemus v. Hein- knowledge from some other source, man, 50 Cal. 438; Cal. Code Civil Proc., such as from some person having seen $ 657; Ark. Dig. Stat. 1874, § 1977; the transaction through a window, or Fain v. Goodwin, 35 Ark. 109; Tex. by some such other means." LD. Code Cr. Proc. 1879, art. 777, 98 3-8; MANSfield, in Vasie v. Delwal, i T. Cowperthwaite v. Jones, 2 Dall. (U. R. II. “ This ordinarily cannot be

positively shown, it can only be reached 2. A quotient verdict occurs where by such facts as may be gathered in a the jurors agree to add together their legal way from what others than the estimates and divide the sum by 12, jurors can testify to." Obear v. Gray, and to abide by the result thus arrived 68 Ga. 182. A quotient verdict cannot at as their verdict. This is illegal. See be so shown. St. Clair v. Ry. Co., 29 Joyce v. State, 7 Baxt. (Tenn.) 87; Mo. App. 76; Ry. Co. v. Patton, 9

W. Haught v. Hoyt, 50 Conn. 583. The Va. 648. See also State v. Pike, 65 Me. test is whether they agreed to abide by 111; Fredericks v. Judah, 73 Cal. 604; the result. Johnson v. Hubbard, 22 Messenger v. Bank, 6 Daly (N. Y.) 190; Kan. 277. For if they did not the ver- Reynolds v. Tompkins, 23 W. Va. 229; dict is good. Leverett v. State, 3 Tex. Gale v. Ry. Co.. 53 How. Pr. (N. Y.) App. 213; Tinkle v. Dunmorant, 16 385; Stanley v. Sutherland, 54 Ind 399; Lea (Tenn.) 503; Roy v. Goings, 112 Walker v. Kenniston, 34 N. H. 257; Ill. 656; Miller v. Ry. Co., 5 Mo. App. State v. Nelson, 32 La. An. 842; Terri471.

tory v. Taylor, i Dak. Ter. 479; HanIn an action for damage to an animal, nuin v. Belcheston, 19 Pick. (Mass.) 311; it was held that the jury must not aver- Brown v. Cole, 45 Iowa 601; Lucas v. age the values sworn to by the different Cannon, 13 Bush (Ky.) 650. witnesses until the ordinary rules of Exceptions—Chance Verdict.-By statweighing testimony as to their intelli- utes, in Arkansas California and gence, opportunities for knowledge, etc., Texas, affidavits of jurors are admissible be resorted to. Harvey v. Boswell, 65 to show that a verdict was the result of

lot or chance. California Code Civ. The deliberations of a jury are Proc., $ 657; Polhemus v. Heinman. 50 not to be interfered with whilst they Cal. 438. A quotient verdict is not are considering the law and the testi. within this statute. Boyce 7. Stage mony, which alone must control their Co., 25 Cal. 460. Arkansas Diy. Stat. verdict. They are by no means to be 1874, Š 1977; Fain v. Goodwin. 35 Ark. influenced, by the fear of a week's con- 109.

Texas Code Crim. Proc., 1879, finement, to alarm them into an agree- art. 777, 98 3-8. ment.” The bailiff had told them that Quotient Verdict.-Shown by afhi if unable to agree they would be kept a davits of jurors. In Tennessee, Harvey week. Obear v. Gray, 68 Ga. 182. v. Jones, 3 Humph. (Tenn.) 157; Crab. Where the judge told the jury, “You 7. State, 3 Sneed (Tenn.) 302; must agree upon a verdict; I cannot dis- Ry. Co. v. Winters, 85 Tenn. 240. In

Ga. 550.

3. "

tree

parties as to admissions made by jurors.1

Alleged misconduct of jurors may be disproved by their affidavits. 2

Misconduct of bailiff in charge may be proved by jurors' affidavits.3

Affidavits of third parties as to misconduct of jurors must be positive, showing the ground of belief.4

12. Effect of Misconduct-Waiver.-Irregularities in the custody of and misconduct by the jury if gross and prejudicial,5 render the verdict liable to be set aside.

Misconduct by the jury, if not gross or prejudicial, renders the jury liable to punishment, but will not affect the verdict.6

Misconduct is more closely scrutinized and more nearly affects the verdict in criminal than in civil cases,

100.

Iowa, Fuller v. Ry. Co., 31 Iowa 211. highest number should get it, referring, Kansas, Johnson v. Husband, 22 Kan. as he supposed, to the verdict.” In this 277. Texas Code Crim. Proc., 1879, case the fact that counter affidavits of art. 777, $$ 3-8; Hunter v. State, 8 Tex, the jury as to other charges of misApp. 75.

conduct said nothing as to this one, of Exceptions in General.-Intoxication deciding by lot, also influenced the of juror so shown in Perry v Batley, court. See also McMurdock v. Kem12 Kan. 539. Evidential statements by berton, 23 Mo. App. 523. jurors so shown in Wade v. Ordway, 5. Intoxicating Liquor. — Carter 57 Tenn. 229; Anshicks v. State, 6 Tex. Glass Co., 85 Ind. 180; Ry. Co. v. App. 524. See also Johnson v. Hus- Porter, 32 Ohio St. 328. band, 22 Kan. 277; State v. Clark, 34 Communications. — Collier v. State, Kan. 289; Wright v. Tel. Co., 20 Iowa 20 Ark. 36; Clements v. Spear, 56 Vt. 195; Donston v. State,6 Humph.(Tenn.) 401. 275; Booby v. State, 4 Yerg. (Tenn.) Reading Newspapers.-U. S. v. Reid, 111. But see Garuty v. Brazell, 34 Iowa 12 How. 361. See also authorities col

lected under each kind of irregularity Embracery may be shown by affi- and misconduct; also Morrow 7. Comdavits of jurors. Ritchie v. Holbrooke, missioners, 21 Kan. 484; Koehler v. 7 L. & R. (Pa.) 458; Hawkins v. La. Chany, 23 Minn. 325; Trafton v. Pitts, Print Co., 29 La. An. 134; Huston v. 73 Me. 408; Bainbridge v. State, 30 Vail, 51 Ind. 299; Taylor v. Everett, 2 Ohio 264; State v. Cucuel, 2 Vroom How. Pr. (N. Y.) 23; Thomas v. Chap- (N. J.) 249; Brucker v. State, 16 Wis. man, 45 Barb. (N. Y.) 18.

333; Sanders v. People, 124 Ill. 218; 1. Pleasant v. Heard, 15 Ark. 403; State v. Gould, 90 N. Car. 65; State v. Allison v. State, 45 Ill. 37; State 7. Brown, 7 Oreg. 186; Smith v. Lovejoy, Beatty, 30 La. An. 1266; Gale v. Ry. 62 Ga. 372; Wilkins v. Maddrey, 67 Ga. Co. 53 How. Pr. 385; Smith v. Smith, 766; State v. Livingston, 64 Iowa 560; 50 N. H. 212.

Wise v. Bosley, 32 Iowa 34; Riley v. 2. Gilleland v. State, 44. Tex. 356; State, 95 Ind. 446; Borland v. Barrett, Jones v. State, 89 Ind. 82; Wilkins v. 76 Va. 128; Gardner v. Kemble, 58 N. Maddrey, 67 Ga. 766; People v. Hunt, H. 202; State v. Harris, 34 La. An. 118; 59 Cal. 430; State v. Cartwright, 20 W. McGuire v. State, 10 Tex. App. 125; Va. 32; Hix v. Drury, 5 Pick. (Mass.) Hoover v. State, 5 Baxt. (Tenn.) 672; 296; Obear v. Gray, 68 Ga. 182.

Brown v. McConnell, i Bibb (Ky.) 3. Reins v. People, 30 III. 256. 265; Burns v. State, 35 Ark. 118.

4. Ackey v. State, 64 Ind. 56; Mer- 6. State v. Degonia, 69 Mo. 485; gentheim v. State, 107 Ind. 567; Cum- Evans v. Foss, 49 N. H. 490; Brown v. mings v. Crawford, 88 Ill. 312; People McConnell, i Bibb (Ky.) 265; Sanders v. Williams, 24 Cal. 31.

v. State, 2 Iowa 230; Cook v. Walters, In Obear v. Gray, 68 Ga. 182, a ver- 4 Iowa 72; Horton v. Horton, 2 Cow. dict was set aside on the affidavit of a (N. Y.) 589. bailiff that "he heard fragments of talk 7. Morrow z'. Commissioners, 21 Kan. about numbers. Whoever drew the 484.

The effect of misconduct by the jury on a verdict is lost if it is not complained of by the injured party as soon as he knows of it. 1

A party participating in misconduct cannot afterwards complain of it.2

XI. VERDICT-See CRIMINAL PROCEDURE; VERDICTS.
1. General Verdict.--See VERDICTS.
2. Special Verdict.--See VERDICTS.

3. Delivery of the Verdict.See CRIMINAL PROCEDURE; VERDICTS.

4. Setting Aside the Verdict.--See VERDICTS.

XII. FEES.--The compensation of jurors is fixed by statute in the different States.3

XIII. JUDGMENT.-See CRIMINAL PROCEDURE; JUDGMENT.

XIV. ERROR AND APPEAL.-See APPEAL; BILL OF EXCEPTIONS; CRIMINAL PROCEDURE; ERROR, WRIT OF; NEW TRIAL.

1. “A party cannot be permitted to trials. See Thornburg v. Hermann, I lie by after having knowledge of a de- Nev. 473. Pennsylvania, Purd. Bright fect of this kind and speculate upon the Dig., tit. Fees, p. 48. result, and complain only when the In Commissioners 7'. Hall, 7 W, 290, verdict becomes unsatisfactory to him." the county was decided to be liable for Selleck v. Turnpike Co., 13 Čonn. 453; the expenses of boarding and lodging a Onok v. Ins. Co., 21 Pick. (Mass.) 457; jury empanelled and kept together in Hubert v. Shaw, 11 Mich. 118; Bulliner a capital case by order of the court. v. People, 95 Ill. 394; Rowe v. Canney, In Ex parte Lopez, 7 Rich. (S. Car.) 139 Mass. 41; State r'. Nichols, 29 123, it was held that there was no stat. Minn. 357; Harrington v. State, 76 Ind. ute entitling the jurors of the city court 112; Patton 2. Mfg. Co., u R. I. 188; of Charleston to be paid by the State. Berry v. De Witt, 27 Fed. Rep. 723; The jurors in civil cases, attending Scott v. Waldeck, 12 Neb. 5; Polin v. the circuit court of the United States for State, 14 Neb. 540; Lee i'. McLeod, 15 the district of Pennsylvania, held Neb. 158; Valiente 7'. Bryan, 66 How. entitled to $1.25 each for each day's at. Pr. (N. Y.) 302. The rule has even been tendance, in Ex parte Lewis, 4 Čranch applied to bribery. Tinkle r'. Dunivant, (U. S.) 433. 16 Lea (Tenn.) 503.

But in Peiffer v. In the United States courts, if a perCommonwealth, 15 Pa. St. 468, it was son is summoned as a juror and as a held that separation in a capital case witness on the part of the government vitiates the verdict even though the at the same term, he is entitled to comprisoner consent. See also State v. pensation in both capacities, upon makHornsby, 32 La. An. 1268, and Thomp- ing the usual affidavit of attendance son on Trials, § 2613.

and upon his setting forth such facts by 2. One cannot take advantage of his petition, and their admission by the own wrong U. S. v. Salentine, 8 Biss. marshal, a rule absolute will be en. (U. S.) 404.

tered directing the marshal to pay

the 3. Cal. act of May 1st, 1851. Before amount. Edwards 7". Bond, 5 McLean this act, by the act of 1850, no fees were 300. allowed to dissenting voters.

See

Payment of the jury fee at the time Mills v. Dunlap, 3 Cal. 94. Nevada the demand is made is not necessary to Stat. 1864-5, 259 and 1871, 56. See, for make the demand valid. Odello 7.. Rev. their construction, Gillett v. Sharp, 7 nolds, 40 Mich. 21.

Authorities.— The following authoriUnder the act of November 29th, ties have been used in the preparation 1869 (Nevada), a juror is entitled to of this article : Proffatt on Jury Trial; compensation for every day's attendance Forsyth on Trial by Jury; Thompson upon the court, whether actually em- on Trials; Thompson & Merriam on panelled or not, except in certain cases Juries; Bishop Criminal Law; when emploved in hearing criminal Rapalje on Criminal Procedure.

Nev. 245.

on

JUS.—A Latin word, used in the sense of law, rights.?

JUST.-Used as an adjective in several phrases in the sense of that which is right, fair and equitable. For examples see the notes, 2

utes.

was

1. In holding that relief would lie in such a defect as would authorize the equity to have an agreement set aside district court to require the plaintiff to which had been entered into by both amend the affidavit so as to make the parties under a mutual mistake' as to statement more formal and definite. ihe title to the subject matter of the Probably no one will contend that the agreement, LORD WESTBURY used the affidavit should follow the

exact jollowing language: “It is said, Igno- language of the statute, but when it dit vantia juris haud excusat'; but in that fers from the statute without any ap. maxim the word “jus" is used in the parent reason therefor, courts will be sense of denoting general law, the or- justified in requiring that the reason be dinary law of the country. But when made obvious, or that the affidavit be so the word “jus" is used in the sense of amended as to conform to the statute. denoting a private right, that maxim The statute requires that the affidavit has no application. Private right of shall show, 'first, the nature of the plain. ownership is a matter of fact; it may be tiff's claim; second, that it is just; third, the resuit also of matter of law; but if the annount which the affiant believes parties contract under a mutual mis- the plaintiff ought to recover; and take and misapprehension as to their fourth, the existence of some one of the relative and respective rights, the result grounds for an attachment ($ 200. is that that agreement is liable to be set Comp. L. 155), which grounds are enu. aside as having proceeded upon a com- merated in another section of the statmon mistake." Cooper v. hibbs, L.

$ I, Laws of 1866, 182. The R., 2 H. L. 149, 170.

words just and justly do not always 2. Just Claim.-An action mean just and justly in a moral sense, brought in which an attachment issued but they not unfrequently, in their conon an affidavit, and the defendant nection with other words in a sentence, moved to discharge the attachment on bear a very different signification. It the ground that the affidavit did not suffi- is evident, however, that the word 'just' ciently show that the plaintiff's claims in the statute means just in a moral were just as required by law. The sense; and from its isolation, being court sustained the motion, VAL- made a separate subdivision of the secENTINE, J., saying, “The court below tion, it is intended to mean “morally decides that the affidavit does not suffi- just' in the most emphatic terms. The ciently show that the plaintiff's claims claim must be morally just, as well as are just (Sub. 2, $ 200, Comp. L. 155). legally just, in order to entitle a party All that the affidavit states upon this an attachment. If the claim is subject, as to claims numbered i and 2, morally unjust, but notwithstanding the is as follows: It states that the plain: owner thereof thinks he can legally retiff ought justly to

the cover the same by an action at law, amounts thereof;' and near the close of provided he can obtair an attachment, the affidavit it states generally as to all and not otherwise, it is but natural, or the claims, six in number, 'that the sev- at least the temptation is great, for him eral sums claimed by the plaintiff are to try to make a compromise between justly due.' That this is manifestly an his conscience and the rigid language informal way of stating the matter will of this austere statute, and so frame the be readily admitted, but whether this language of his affidavit as not to do informality renders the affidavit insuffi- any great violence to either his concient is not so obvious. It is probably science or the statute. He may think not such a defect as would authorize that it is easier to swear that the claim the court to arbitrarily dissolve the at- is justly due than to swear that it is tachment without first giving the plain" morally just without any reference as tiff ample opportunity to amend her to whether it is due or not, and where affidavit. It is even probable that the there are six different claims, as in this defect is not so faial, that this court case, some of which may be just and would hold the affidavit insuffi- some of them unjust, he may think that cient if the district court had held it that it is easier to swear that the sev. sufficient. We think, however, it is eral sums claimed by the plaintiff are

to

recover

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