
    James F. Brien vs. John Beck.
    Law. No. 22,853.
    5 Decided November 13, 1882.
    
      I Tbe Chief Justice and Justices Cox and James sitting.
    1. It is error for the court to allow any papers which have not been put in evidence to be taken by the jury to their room.
    2. But if the paper has been put in evidence it is in the discretion of this court whether to permit it to go to the jury room.
    3. The decision of the justice trying the cause, as to whether a paper is in evidence or not forms no ground of exception.
    4. Where, without consent of counsel, the court could have given permission to the jury before their retirement to take a paper out with them, the fact that permission was given without such consent after-their retirement is not material.
    STATEMENT 0E THE CASE.
    Assumpsit for work and labor doné and materials furnished.
    After issue joined, the defendant gave notice to plaintiff* to produce at the trial his books of original entries. The book was produced and the defendant’s counsel examined the plaintiff in regard to it, questioning him as to how the charges had been made, &c. The plaintiff’s counsel also' showed the book to the jury and claimed that the items charged in the bill of particulars filed in the suit, were charged to the defendant in the book. After the arguments to the jury, in the course of which this book and the entries therein were referred to both by counsel for plaintiff and defendant, the jury retired, but did not, however, take with them the book referred to. Afterwards one of the jurors came to the jury room door, in the absence of counsel for both parties, and obtained it from the deputy marshal and took it into the jury room. Shortly afterwards, the jury came in (defendant’s counsel being absent) and stated to the court that they had sent for the book, but, before examining it, wished to enquire of the court whether they had the right to consider it as evidence, and whether they could take it to their room and examine it in connection with the plaintiff’s testimony. The court (defendant’s counsel still being absent) instructed the jury that the book was in evidence, and that they had the right to take it to their room and consider it with the other evidence in the case. The jury then retired taking the book with them, and afterwards found a verdict in favor of the plaintiff’ for $307.45, with interest from the 29th day of January, 1881.”
    The defendant moved the court' to set the verdict aside and grant a new trial upon the following among other grounds:
    “ 1. Because the jury were allowed to take with them to their room and consider as evidence, a book of the plaintiff’, which had not been introduced in evidence, and which was not proper evidence in the absence and without the consent of defendant’s attorney.-
    “ 2. That the verdict was obtained by surprise ; in that the jury were allowed to take with them, in their retirement, said book, without the knowledge or consent of the defendant or his attorneys, and after the defendant’s attorneys had been informed by plaintiff’s attorney that the jury had taken nothing but the pleadings in the case,”
    Carusi, Miller & Sands for plaintiff:
    The giving of the plaintiff’s book by the deputy marshal to the jury at their request might be wrong, yet the court will not grant a new trial. Lott vs. Macon, 2 Strobhart, 183; Peachem vs. Carter, 21 Vt., 518; King vs. Burdett, 2 Salkeld, 645.
    In the case of Commonwealth vs. Jenkins, the officer delivered to the jury at their request, without application to the court, after they had retired, a volume of the laws of the State, containing the act upon which the indictment was founded, which act had been commented upon by the counsel and by the court, which volume the court would have given .them liberty to take with them if requested. It was held, on motion for a new trial, not a sufficient ground for a new trial. Thacher’s Crim. Cases, p. 118..
    
      It appears in the record that after the jury got the book they did not examine it as to what the plaintiff had testified, but came into court and' got the court’s consent to take it to their room and consider it as evidence.
    The sending out of papers, &c., with the jury, is regulated by the sound discretion of the court. Little Schuylkill, &c., vs. Richards, 57 Pa., 148; O’Hare vs. Richards, 10 Wright, 389; Spence vs. Spence, 4 Watts, 165; Hamilton vs. Glenn, 1 Barr, 342; Hendel vs. Burk et al., 16 Serg. & Rawle, 96; Whitehead vs. Keyes, 3 Allen, 498; Alexander vs. Jameson, 5 Binney, 246.
    Cook & Cole for defendant:
    The taking of the plaintiff’s book with them to their room ■and considering it by the jury, even with the sanction of the ■court, in the absence of defendant’s counsel and without his ■consent, was such error and irregularity as to vitiate the verdict for plaintiff, and the same should be set aside and a new trial granted. United States vs. Clark, 2 Cranch C. C., 152; Hutchinson vs. Decatur, 3 do., 291; Erving vs. Cook, 15 Johns., 239; Penfield vs. Carpenter, 13 Johns., 350; Lonsdale vs. Brown, 4 Wash. C. C., 148; Hicks vs. Drury, 5 Pick., 296; Whitney vs. Whitman, 5 Mass., 405; Benson vs. Fish, 6 Greene (Me.), 141; Sargeant vs. Roberts, 1 Pick., 337; Hackley vs. Hastie, 3 Johns., 252; Metcalf vs. Dean, 1 Croke Eliz., 189; 21 Vin. Abr., Title Trial, p. 451; 2 Hall’s P. C., 308; Flanders vs. Davis, 19 N. H., 139; Durfee vs. Eveland, 8 Barb., 46.
    This would be the rule even if the book had been properly in evidence. A fortiori will the rule apply in this case, where the books had not been offered in evidence, but only referred to by witnesses and counsel.
   Mr. Justice James

delivered the opinion of the court.

At the trial of this ease, when plaintiff was a witness,* counsel for the defendant asked him to look into his book of accounts which he had produced on notice, and state to whom he had charged the work ; he did so, and said that he had charged it to the defendant. The jury having retired, subsequently asked for this book and it was handed to them by the clerk. After that they carne into court and stated to the judge that they had possession of the book, but because there was some doubt whether it had been put in evidence they had not looked into it, and thereupon asked whether they might do so. The court told them that it was in evidence and that they could take it and examine it as that entry. When this order was made, the counsel for defendant who had called for the book was not in court, so that the direction was given in the absence, of counsel on that side. We are asked to reverse the judgment against the defendant on the ground that such order could be made only with consent of parties.

If the court allows any paper which has not been put in evidence to be taken by the jury to their room, that is error. If the paper has been put in evidence it is a matter of discretion with the court whether to permit it to go into the jury room. In many cases it would be improper to allow writings to go into the jury room because they would disturb the equilibrium of the evidence. For example, if the testimony on one side was oral and on the other in depositions, ■the jury would of course be likely — almost certain — to give more weight to the written testimony before them than to the oral testimony on the other side. But the general rule is, that when a paper is in evidence it is in the discretion of the court whether to let the jury have it, and that whether counsel consent or not.

If the court could, without consent of counsel, have given this book to the jury before they went out, it is not material that the permission was given afterwards. Whether it was in evidence or not we think was for the judge to determine, and we accept his determination of that fact. It appears that the counsel who called for the book told the witness, the plaintiff himself, to read the book and state what was there. Substantially he told the witness to read the book to the jury. It was commented upon by counsel on both sides, and •the court had a right to assume that counsel waived the formality of offering it in evidence.

If a dispute had arisen about it the court would have been compelled to decide whether the treatment given the paper by counsel had put it in evidence. The court has so decided, and it being a matter of discretion it is not a subject of error, We cannot reach it even if we think it was not good practice.

The judgment is therefore affirmed.  