
    Wright v. Burchfield.
    Jurors separate after agreeing upon a verdict, without leave, not ground for new trial.
    This cause was adjourned from Stark county, upon a motion for a new trial, by the defendant, on account of the misbehavior of the jury. The misconduct complained of was this: This jury was sent out in charge of an officer. They agreed upon a verdict, but the court having adjourned, they.wrote their verdict, and then separated without leave of the court. In the afternoon, when the court met, the jury came in and gave the written verdict to the clerk, but it was not received or read. They were then called, as in other cases, and rendered their verdict from the box. The motion was made for a new trial, on the ground of this misbehavior.
    
      *Goodenow, in support of the motion :
    I have found no authority, directly in point, in support of the motion for a new trial, and, perhaps, no jury ever misbehaved in the like manner, or to the same extent. Nor is it of much consequence how the case itself is disposed of, though I consider the verdict most manifestly illegal and unjust. Yet the question involved in the motion is of vital importance in practice, and must be so considered in relation to the purity of trial by jury. Why is the question reserved ? Only that it is important; and it important, how? Except it be on the position that a jury trial, to be pure and wholesome to the people, should be not only free from corruption, but it should seem so; and should be preserved from every deviation which might even tend to suspicion. I do not contend for the rigid doctrines of olden time, when jurors were not allowed even light; nay, not even for the strictness of more modern days, when one was not permitted to leave the box or to step aside from his brethren, for a moment, without an officer. I would contend for no restriction upon their free range of person and mind, unless an avenue were thereby opened to lead them from the true path of inquiry and deliberation, or to embarrass and distract them with incompetent and interested counsel. Nor do I think the court ought to wait for a case where evil has actually resulted, before they decide the question now presented. For in so doing they remove all landmarks, and leave a jury without any guide, and, of course, not answerable for any misconduct, unless actual corruption, and consequent evil, shall unite to condemn them.
    The facts upon which this motion is founded, show to the court here that the jury, contrary to all known practice, separated on leaving the court-house, and mixed with the multitude during the adjournment of court; came into court promiscuously, and when called, one drew from his pocket a loose piece of paper, with this memorandum on it: “We, the jury, do find that the defendant is not indebted to Cole and Sidney, the original defendants in attachment,” signed by none of them. The parties not being entitled to poll the panel, no means were afforded to either party to know, in fact, what was the opinion of the twelve. Should *the court say that this conduct of the jury does not vitiate the verdict, I would inquire, whether, should a jury be sent from the box with a cause at nine o’clock p. m., and immediately separate, and meet in the morning, in a tavern or ball alley, and agree that A. B. should write a verdict for them, such as he might think suitable, and deliver such a verdict to the court, it would be good? I am aware that I shall be answered — no; because here is a state of facts made known, which it would be highly improper to sanction as the foundation of a verdict. Yet the very facts now before the court show, as far as they go, a course equally as loose and as censurable.
   By the Court :

We think there is no sufficient'reason to set aside the verdict in this case. Nothing is more common than to consent that the jury may separate after they agree upon a verdict, and before it is rendered in court.

The sanction given by the parties and by the courts to this practice is conclusive that it is not considered, in its nature, dangerous to the right administration of justice. Nothing of a mischievous tendency could be so frequently indulged toward a jury. It has never been thought safe that jurors should be permitted to converse with strangers before the verdict was given, or that one or more of the jurors should leave his fellows, or even that the jury should separate before they were agreed, unless some special order, was made to that effect. But the mere consent of the parties has usually been received, to warrant such a separation as this. The misbehavior of jurors in a civil case, which would render it necessary to disturb the verdict, should be of such character as to evidence bad intention, which is not pretended in the case before us. The motion for a new trial is overruled.  