
    
      A. D. Cohen v. Lucius C. Robert.
    
    Where the plaintiff produced in evidence the affidavit of the defendant, to prove, by tire defendant’s admission, the trespass complained of, he thereby also made evidence the defendant’s declarations, in the same affidavit, of tire circumstances which incited him to the violence he committed.
    Any improper interference with the jurors, will afford sufficient ground for a new trial of the case.
    It is not necessary that the attempt to influence the jurors should be made by one of the parties to the suit, nor by his agent; it is sufficient if it be done in his behalf — nor is it necessary that tire jurors should, in fact, have been controlled or determined in the verdict rendered, by any thing said or done to influence them.
    
      Before Mr. Justice Richardson, at Gillisonville, Spring Term, 1847.
    
    REPORT OP THE CIRCUIT JUDGE.
    This was an action of assault and battery. The plaintiff, Mr. Cohen, is a respectable Baptist clergyman (formerly of the Jewish persuasion). The defendant, Mr. Robert, is a respectable planter. The defendant beat the plaintiff indignantly and severely with a cowskin, upon the allegation that Mr. Cohen had slandered him to a young lady, and caused the loss of his marriage with her. In this very novel case, I will first report the material evidence.
    
      J. Gelston — 30th August, 1845, at Robertville, witness saw defendant beckon to a boy, who went to J- — s, and Cohen came towards defendant, and the boy too. Saw defendant’s arm go so, {i. e. defendant appeared striking, as if whipping,) but witness could not see Cohen (the .witness stood at some distance); witness then withdrew; witness could see no weapon. Afterwards, in half an hour, defendant asked witness if he saw it, &c. Defendant told witness not to tell it, or he would be brought into Court.
    
      Cross-examined — Cannot say if Robert or another was striking him (Robert). This witness several times said he was very confident defendant was whipping Cohen, but was confused. He afterwards saw an advertisement, with defendant’s name to it, to leave the State, <fcc.
    
      R. G. Norton saw an advertisement of Robert, of his land, referring to an agent, which said-he had gone to Texas about the same time, i. e. of issuing a warrant. Witness issued a warrant, Sept. 1845, and soon after he (R.) was taken.
    • F. Baker — Lived near Robertville; saw defendant on Blst of August, at witness's store, in Robertville, between 3 and 4 o’clock; he had a cowskin; he said he heard that plaintiff had been interfering between him and a young lady, and if he acknowledged it he would give him “ ginger.” Cohen was not then in the village. Defendant remained until sundown. Witness advised defendant to act cautiously. Saw it advertised that he had or would leave the .State.
    
      Cross-examined — This lady was Miss‘Porter; the defendant was courting her. Witness had received a note from plaintiff, and was cautious-in what he sáid. Does not know that plaintiff is meddlesome in such matters. Defendant said Jaudon had told him of it, the intermeddling, fyc.
    
    
      H. Jaudon — Saw defendant at Robertville, in Baker’s store; R. had a cowskin that day.
    The plaintiff introduced the following'aífidavit:
    State op South Carolina, )
    
      Beaufort District. 5
    Lucius C. Robert, being sworn, deposeth and says that he was induced to chastise the plaintiff, Mr. Cohen, from information given to him by one Charles Jaudon, who is at Robert-ville, where he resides, considered a respectable man ; “ that the said A. D. Cohen had informed a young lady, who was then residing in the family of him, the said Charles Jaudon, and to whom this deponent was paying his addresses, that this defendant was a dissolute, immoral man, and did not seek her honorably, but intended to seduce her if he could, or to that effect, and as this deponent believes, in stronger terms, and that he, the said Charles Jaudon, had just left the young lady in tears.” That excited beyond control by this information, and especially from the fact of his having been a short time previously rejected by the lady — believing the report of Mr. Jaudon, this deponent did assail Mr. Cohen with a cowskin, but before he struck him a single stripe, said to him, “ you have been slandering me to a lady, sirthat Cohen did not deny the fact at the time, and deponent did chastise him. This deponent further.swears that his friends and his relations, from his mother down to bis cousins, have refused to stand bail for him in the enormous amount of ten thousand dollars, and that having failed in his applications to them, he knows no others to whom he could apply to be bound for him in so large an amount.
    This deponent, on oath, further says, that if he has been deceived by the information of Mr. Jaudon, and the plaintiff is innocent of the charge of having slandered him to the ladyr there is nothing in the way of-reparation, in his power to make, which he would not tender. All which this deponent • respectfully submits. L. C. ROBERT.
    Sworn to before mo, this 6th April, 1846. \
    
    W. B. Ficklinq, Magistrate. J
    And this deponent further shows, that a State prosecution for the same cause for which plaintiff sues, has been commenced against him in this Court, and he has been compelled to give security for his appearance in that suit.
    L. C. ROBERT.
    Sworn to before me, the 7th April, 1847. )
    Ed. Morrall, Magistrate, f.
    
      T. W. Rambout — Saw Cohen stripped; he was severely marked; not cut; disgusting to see; the stripes were over his left shoulder, to the opposite side over the arm.
    
      Cross-examined — Cohen said he had submitted, from Christian principles.' Witness said he and Cohen had differed on this principle ; “ he had caught the cowhide, and defendant was striking him with his fist, when he let go the cowskin, and defendant still struck him with the cowslrin.”
    
      W. Mocock — Plaintiff lived with witness. Saw his back; he had been whipped; 3 or 4 marks of a whip from left shoulder obliquely to the right. It was the latter part of the summer.
    
      A. N. Ruth — Defendant returned 55 slaves and 2,000 acres of land in 1847, i. e. to the Tax Collector. Youmans proved a judgment vs. Robert, of $500.
    I charged the jury, that the assault and battery being proved, the plaintiff’s case was clear, and presented but one material question. What damages would the jury give the plaintifF, under all attending circumstances? This was a question exclusively for the jury — damages might be increased, to deter others from similar violations of law — to encourage men to pursue legal rights for such injuries — for public example, or the like, as well as for the actual damages to person and feelings. The jury were unrestricted in this respect, &c.
    The first ground of appeal requires exposition. The evidence, all for the plaintiff, having brought out the whole der-fence, by the defendant’s affidavit, as well as plaintiff’s case, there was little reason for judicial exposition, after the very able arguments made in opposite extremes. But the defendant’s counsel had contended, with much apparent effect, upon the moral inconsistency of one submitting to be beaten through a religious principle of submission to evil, and then seeking to punish the assailant by law — urging that the thirst for pecuniary gain was the absorbing-object of the plaintiff, which should not be indulged. Upon .this, supposed inconsistency of conduct, the defendant’s counsel had been very impressive, and made the keenest thrusts at the plaintiff, upon the assumption that the original Jewish propensity of the plaintiff, a converted Jew, had, at the prospéct of gold, supervened and cast aside his assumed Christian forbearance and acquiescence' under wrong.
    And I observed to the jury, that although it appeared,, strictly speaking, inconsistent so to act, after a religious submission to the beating, yet that the plaintiff stood before the Court with all the rights of a litigant, and must be dealt with as other men who had a good^ cause of action, notwithstanding any supposed inconsistency in suing defendant, with the religious injunction by which he had professed to be bound,• to return no evil.
    Upon the second and third grounds, I have but to observe, that the provocation for the defendant’s trespass being proved by the affidavit introduced by the plaintiff, and from the lips of Robert by another witness of plaintiff, the Court did not and could not assume this part of plaintiff’s evidence, as morally false, or requiring to be further proved by defendant, i. e. prima facie, Jaudon had made the communication. Accordingly no specific charge was given on this head. If 1 had charged upon it, it would have been that the plaintiff could not dispute the moral truth of the evidence introduced by himself;' but my impression is, that, in referring the jury to the evidence of Gelston, Rambout, and the affidavit, as presenting the whole case, Í observed that the jury were not bound to believe every part of it alike.
    With regard to the 4th ground, I have to observe, that whatever were the feelings of the case, which were vehemently exalted on the one side, and as lowly undervalued on the other, the Court deemed It proper to avoid unnecessary comment.
    On the one side, $20,000 was demanded again'and again, as the only just verdict. The other side admitted damages, but pressed for very slight, holding the plaintiff’s demand for money, as unworthy the humility and forgiveness assumed.
    Upon this ground, I ought to observe that plaintiffs counsel required the Court to charge upon only one point, which was done.
    Finally, upon all the grounds of appeal, I would observe, .that the plaintiff, having given in evidence the defendant’s affidavit, and thereby fixed the fact of the -beating, it equally proved, at least till contradicted, the fact of Jaudon’s communication of the slander, and of defendant’s belief of plaintiff’s conduct; which constituted the whole matter of defendant’s excuse for his passionate outrage.
    It follows, that if this view of the main facts be correct, the case of itself, and aside from excited feelings, presented little else than the question of quantum damnijicatus for the jury alone.
    To my understanding, the case, however difficult for the jury to assess, was, of itself, of. the simplest law.
    The misfortune was, that the boy spoken of, as present at the whipping, had gone off, and the plaintiff introduced defendant’s affidavit; and, of course, gave him the advantage of having his defence stated without other evidence ; and the reply in argument, which I repeat, was masterly, and perhaps, too successful. For the jury, after being confined all night, brought in the sorry verdict of $250. And the question is, can the Court grant the plaintiff a second trial, either on the law, or on the evidence, and such a recompence, to so rare and humble a Christian follower, for so high-handed an infliction of personal chastisement 1
    
    The plaintiff moved the Court of Appeals for a new trial, on the following grounds :
    1. Because his Honor stated to the jury, that, if the plaintiff’s reason for submitting to being beaten by the defendant, was his belief, that asa Christian and a clergyman, he could not do otherwise — in his opinion, the plaintiff’s conduct in bringing the present action was inconsistent with that belief — whereas, it is submitted, that it was perfectly immaterial to the issue, what was the plaintiff’s motive for his conduct.- While such an opinion, expressed by the presiding Judge to the jury, was calculated to, and did, most materially prejudice the plaintiff’s case.
    2. Because his Honor neglected to charge the jury, that even if Robert had ever been told by Jaudon that Cohen had spoken disparagingly of him, Robert, it constituted no justification — and until proof was offered by Robert that Jaudon did so tell him, and that such was the truth, it ought not to go in mitigation of damages.
    3. Because his Honor ought to have charged the jury, that if Jaudon did tell him, the defendant, that Cohen had spoken disparagingly of him or injuriously — it was incumbent on him, Robert, to prove it, and not the duty of the plaintiff to prove that he had not so spoken of defendant, as this would have been to require him to prove a negative.
    4. Because, though the case was one of magnitude, in which many important legal points were made, and the opinion of the Court asked upon them — the presiding Judge did not bring them to the view of the jury, and dismissed the cause to them with a charge of less than five minutes.
    5. Because the verdict was contrary to law and evidence, and grossly inadequate to the outrage proved.
    6. Because, in the progress of the said trial, and before its close, the defendant and his friends and agents ap-preached the jury out of Court, and endeavored to influence, and did influence, their decision in defendant’s favor.
    Note. — The 6th and last ground of appeal is additional, and based upon the affidavit of one of the jurors, made many months after the trial. Which affidavit was also contradicted by the party accused therein of the attempt to influence him.
    Martin & Lawton and DeTreville for the motion.
    B. G. Allston contra.
    
   Frost, J.

delivered the opinion of the Court.

It is unnecessary to consider the original grounds of appeal, further than to express the opinion of the Court, that the plaintiff, having produced in evidence the affidavit of the defendant, to prove, by the defendant’s admission, the trespass complained of, thereby also made evidence the defendant’s, declaration, in the same affidavit, of the circumstances which incited him to the violence he committed. When the defendant’s declarations were thus introduced by the plaintiff,, he could not reject or exclude them from consideration. Even-if proof of the circumstances, averred in the affidavit in extenuation of the conduct of the defendant, would have been, inadmissable, if offered by the defendant, the objection was. waived by the act of the plaintiff; and the defendant’s declarations having been thus admitted properly and legally,, should have been allowed to influence the jury in estimating, the damages.

The additional ground of appeal presents an application to the Court for a new trial, because the defendant, by his-agents and friends, endeavored to influence, and did influence the verdict, by imparting evidence, and using solicitation, to one of the jurors. The facts, in support of this application, have been brought to view by the affidavit of the juror,, many months after the verdict was rendered. On this account,. the evidence has been admitted with great hesitation,, and only from a strong impression of the mischievous tendency of the circumstances disclosed. The evidence of the-attempt to influence the juror, is strong. His character,, and that of the witness, who confirms his statement, are above suspicion. The party, charged with improper conduct, has had ample notice of this application, with every opportunity to exculpate himself. The conduct of the defendant in absconding from process, and the deceptive advertisement of his departure for Texas, and oifer of his property for sale, give weight to the charge of unfair practice in the trial of the case; and the influence which, from the delegation to him of the highest political trust the people of his parish can confer, must be attributed to the party, charged with improper conduct, make the example dangerous.

It is very necessary, and has always been the practice of the Court, vigilantly to protect the jury from illicit attempts to bias their verdict. Anciently, when the jurors departed from the bar, in civil as well as in criminal cases, a bailiff was sworn to keep them together, and not to suffer any person to speak with them. Bac. Ab. Tit. Juries, G. This precaution has not, in modern practice, been so strictly enforced; and improper interference with jurors, hy.s been checked by granting a new trial where it has been practised. It is not necessary that the attempt to influence the jurors should be made by one of the parties to the suit, nor by his agent — it is sufficient if it be done in his behalf; nor is it necessary the jurors should, in fact, have been controlled or determined, in the verdict rendered, by anything said or done to influence them. In the case of Knight v. The Inhabitants of Freeport, 13 Mass. 218, a new trial was granted, because one Briggs, after the jury was empannelled and before trial, applied to one of the.jurors, and stated to him that the cause was of great consequence to him, Briggs, because if it went against Knight, he would have to pay the costs, aqd the defending of the action was a spiteful thing. Knight whs not present, and the juror swore that he did not know Knight had any knowledge ofcit. It was said by the Court, “ the attempt to influence the juror was grossly improper, and ought to be discountenanced.” It is not necessary to show that the mind of the juror, thus tampered with, was influenced by the attempt. If he was, there was sufficient cause to set aside the verdict, and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict on another trial. In Ritchie v. , 7 Sergt. & Rawle, 458, the verdict was set aside because the foreman of the jury, when they had retired for consultation, said, on the subject of controversy in the case, that the plaintiff had satisfied him of that difficulty, iu a conversation he had with the foreman out of Court, and after the jury had been sworn. In Coster v. Merest, 2 Brod. & Bing., 272, a new trial was granted on an affidavit, which stated that hand bills reflecting on the plaintiff’s character, had been distributed in Court at the time of the trial, and had been seen by the jury; though the defendant denied all knowledge of the hand bills, and the Court refused to receive the affidavits of jurors, that they had not seen the hand bills.

It has been argued that no other facts were communicated to the juror, nor other appeals made to him than were in evidence, and urged in the argument of the case. But it is the solicitation of the juror, or belaboring him, as it is expressed by the old writers, and the exercise of personal influence to affect his decision, which had to be reprobated and suppressed. It is ■ impossible for the Court to know to what extent such appeals, especially when made by persons of large, social and political influence, may operate; and the juror, himself, may be unconscious of the bias which may be given to his judgment, by hope or fear, by the desire to conciliate or the apprehension of resentment. But in this case, the juror says, that, in consequence of his conversation with Johnson, he was more easily reconciled to the surrender of his own opinion of the proper amount of damages, and to acquiesce in a verdict, finding less than he approved.— The remarks of Tilghman, C. J. in Ritchie v. , have great force. He says the holding of conversations with julurs, after they are sworn, is a practice against which the Court should set its face resolutely, and put it down at once. It must be known that a party may lose, but cannot gain by conversation with a juror after he is sworn, unless it be open and by permission of the Court. If the verdict should be against him, it would stand; and if for him, it will be set aside.

The motion is granted.

Richardson, J. O’Neall, J. -Evans, J. Wardlaw, J. and Withers, J. concurred.

Motion granted.  