
    *Massey Thomas v. The Commonwealth.
    Criminal Law — Setting- Aside Verdict — Separation of Jury. — In a Criminal Case, the separation of one or more of the jury-men from the rest, for innocent purposes, (such as going to see a horse taken care of — to procure great coats, cushions, &c. from the bar of the tavern, to wear or rest on in the jury-room — to wash at the tavern porch, &c. &c.> is no ground for setting aside the verdict, provided, the separation is with the authority of, and the juror is accompanied by, one of the officers who has the charge of the jury : and provided also, there is no actual improper communication between the juror and other persons during the said authorised separation.
    Same — Same—Tampering with Jury. — The bare possibility of tampering with the jury, is no sufficient reason for setting aside the verdict.
    This was an application for a Writ of Error to a judgment of the Superior Court of Law for Westmoreland county, by which the petitioner was sentenced to confinement in the Public Jail and Penitentiary-house for two years, for manslaughter. The grounds of the application are as follows:
    After the conviction, the prisoner moved the Court to set aside the verdict, and to grant a new trial, on account of the misconduct of the venire during the recess of the Court, and while they were in charge of the Deputy Sheriffs; which motion was overruled, and the prisoner excepted to the opinion of the Court. The Bill of Exceptions sets forth the following facts:
    ‘ ‘The prisoner was put upon his trial on the first day of the Term; and the examination of the witnesses having been protracted to a late hour, and the Attorney for the Commonwealth declaring that, from his defect of sight, it would be impossible to conduct the trial, with justice to the Commonwealth, any longer: The jury were, with the consent of the prisoner, committed to two- of the Deputy Sheriffs attending the Court, who were sworn to keep them together, without separation, and without communication with any others (or the said Sheriffs themselves) except on occasions of indispensable necessity, and a charge was given to the jury to the like effect. The Court then adjourned to the following day, and the jury were confined by the Sheriffs in the Court-house. Some time thereafter, one of the jurors was permitted by the Sheriffs, and attended by one of them, to go to the stable adjacent to the Court-house to have his horse fed; and, on the following morning, attended in the same manner, he was permitted to go to the stable on the same occasion, to go to a store about the same distance from the Court-house, to buy some snuff, and then *to return to the jury. On both of these occasions he was continually in the presence of the Sheriff; never more than ten feet from him; and had no communication with any one except to order the hostler to feed his horse, to buy the snuff, and to direct a neigh-bour, who, on his horse, was passing at some distance, to inform his family of the cause of his not coming home. When, in the morning, he went to the stable, there were several persons in the stable-yard, but he had no communication with any of them. Two others of the jury were, at night, permitted to go to the bar of the tavern, adjacent to the Court-house, to get from thence their great coats and .cushions, to accommodate them in sleeping in the jury-room: one drank a glass of brandy and water, and another a glass of wine, while in the bar: but the Sheriff attended them, and remained at the bar door, having them in his sight, and returned with them. About ten minutes were spent in doing this ; and they had no communication with any one except to demand the above articles of the Inn keeper. The same jurors were permitted by the Sheriff, and attended by him, to go to the tavern porch the next morning to wash, and whilst there, one of them received from the bar a small glass of julap. They remained no longer than was necessary for those objects, returned with the Sheriff to the jury-room, and had no communication with any one, except to call for the julap. Another of the jurors was permitted to separate from the jury and to go to the stable lot aforesaid, for the purpose of taking care of his own horse, and that of one of his fellow-jurors; he took the horses into the stable lot, and delivered them to the negro hostler, and spoke to no person, except to one on the same subject, who had removed the horses and put them together, whom he merely thanked for his civility and said no more. This juror was absent about ten minutes, and was always in the sight of, and near the Sheriff. On these facts the prisoner moved for a new trial, which the Court over-ruled.”
    Mr. Briggs, Counsel for the petitioner, referred to M’Caul’s Case, 1 Virg. Cases, 302. He argued that formerly the practice was, after the jury was entrusted with the Cause, to keep them together without fire or candle, or meat or drink, until they had agreed : that although in these last particulars the rule was relaxed, yet, still, the rule was understood to be, and was so decided in the aforesaid *Case, that the separation of a jury could not be allowed except in cases of imperious necessity: that the prisoner could not be required to prove that one of the jury had been tampered with: that the separation without necessity, produces a risk of contamination, which the Court should sedulously guard against, and that without this caution the jury trial, “that great barrier ¿gainst oppression, might be gradually sapped and undermined:” That in this case, four or five of the jury separated from their fellows without the least .necessity: What necessity could there be for one to go to the stable to feed his horse, or the store to buy snuff; for another to drink a glass of grog or of wine, at the bar of the tavern, or others to perform their ablutions at the tavern porch? In fact he did not suppose there was any tampering, but it was enough for the prisoner to shew that there might have been, notwithstanding the officer was in sight: nor did he suppose there was any actual tampering in M’Caul’s Case. The Law entrusts the life and liberty of the accused with a jury who are secluded from all extraneous influence, and not with a jury who may separate on the most trivial occasions, and expose themselves in situations where they may hear the opinions of all who choose to express them. He trusted that the Court would award the Writ of Error.
    
      
       Juries — Separation.—On this question, see the principal case cited in Thompson v. Com., 8 Gratt. 643, and foot-note ; foot-note to Com. v. McCaul, 1 Va. Cas. 273; Kennedy v. Com., 2 Va. Cas. 511, 512; Martin v. Com., 2 Leigh 750; Trim v. Com., 18 Gratt. 986; State v. Harrison, 36 W. Va. 733, 15 S. E. Rep. 983. See mono-graphic note on “ Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   After due deliberation, the Court rejected the application.

DADE, J.,

delivered the opinion of the Court :

This Case differs from that of M’ Caul, in this important particular, that here, in every instance where the juror separated from his fellows, he was attended by the Sheriff; whereas in M’Caul’s Case there was no such attendance. The Court cannot, therefore, consider that the rule established in that Case, that the separation of one juror from the rest of the jury, without imperious necessity, will vitiate the verdict, is to be taken in a sense as exclusive as its words import, but think that it should be understood in reference to the Case then in hand, according to a sound remark of Lord Ellen-borough, in Doe v. Guy, 3 East’s Rep. 21: That general language used by the Court, in giving its opinions in any Case, must always be understood with reference to the subject matter then before them.” The necessary deduction from the opinion in Mc’Caul’s Case, corroborates this idea. Eor, when the Court say that *this separation, without imperious necessity, vitiates the verdict, it follows, that in a case of imperious necessity, such a separation, without the attendance of an officer, would not have such an effect; which shews, that the case of separation, in the custody of the officer, was not in contemplation of the Court.

But, the foundation of the rule in M’Caul’s Case, certainty was the avoiding' to afford an opportunity to tamper with the jury: and the Court lay much stress on the argument, that if such separations be allowed, the evidence from which the verdict would be attempted to be purged of stain, would almost always be of a very suspicious character, as it must be derived from the very juror who may have been corrupted: this is a farther circumstance to shew that such a case as this was not in their mind; ' for this great argument in that case does not apply here. The testimony was derived, and in such cases may always be derived, from a pure and impartial source, the Sheriff, an officer of the Taw, towards whom we are not warranted in extending such a suspicion; for, if we might do so, he having manjr opportunities of corruption, there would be an end of all confidence in many of the most important proceedings of Courts of Justice, in which that officer has an extensive agency and influence. The difference, then, between M’Caul’s Case and this, may be thus briefly stated. In the former, there was the utmost facility of corrupting the jury; in the latter, a bare possibility. In the former, it would have been extremely difficult, if not impossible, to have procured proof of the guilt of the jury, except from the party to the crime: in the latter, proof of even an attempt at tampering, is always at hand from an accredited source. It would ' not seem proper to apply the same rule to Cases so exceedingly different, only because, in a Case in which that rule was applicable, it has been laid down by the Court in general terms.

It was not denied, in M’Caul’s Case, that a juror might misbehave himself without vitiating his verdict; but, the application of that proposition was repelled in that Case, because, there, the acts of misbehaviour might readily lead to such dangerous consequences, for the reasons that we have already quoted from that Case. But, we think we have shewn, that in this Case there was a bare possibility of such consequences. And we do not think ourselves justified, on account of a remote possibility, to obstruct the ^justice of the country in a case where we cannot doubt that the prisoner has received no injury. A majority of the Court is, for these reasons, of opinion, that the Writ of Error ought to be denied.

Erom this opinion, JUDGES BROCKEN-BROUGH, SEMPEE and BARBOUR, dissent.  