
    In Basic.
    Dec. Term, 1846.
    William Davis and Martha Davis vs. The State of Ohio.
    Whether the Jury shall be permitted to separate during the progress of the trial in a criminal ense, is matter of sound discretion with the Court trying the case, and the exercise of this discretion cannot be questioned on error.
    When the Jury retire, in the charge of a Sheriff'or of a qualified Constable, such officer need not be specially sworn.
    If a wife join with her husband in the commission of a crime less than murder, she is presumed to act under the coercion of her husband, and in law is not guilty 5 but the fact of coverture must be clearly made out by proof.
    This is a Writ of Error to the' Court of Common Pleas of Logan County; and the record presents the following state of facts:
    William Davis and Martha Davis were convicted of arson, at the August term, 1846, of the Court of Common Pleas in Logan county, and sentenced to the penitentiary for the term of ten years.
    The bill of exceptions and affidavits, in substance, disclose the following facts:
    That, after the jury was sworn, and some testimony submitted, the Court adjourned for dinner, and permitted the jury to disperse until the coming in of the Court in the afternoon, first having cautioned the jurors to have no conversation with others, or among themselves, respecting the cause under consideration; that, at night, a constable in attendance upon the Court,.was requested by the Court to take the jury to a tavern, and remain with them until the next morning; that said constable was not sworn to hold no conversation himself with the said jury, or not to permit others to converse with them ; that, after the cause was submitted to the jury, they retired to their room, under the charge of the sheriff; that, during a portion of the time they were in charge of said constable, the constable stood in the hall, in view of the jury-room; that no person had any conversation with said jury during their deliberation; that the said sheriff and constable were not specially sworn as to their duties respecting the jury.
    That, during the progress of the trial, evidence was submitted, that William and Martha Davis resided in Miami county; that said Martha kept house, but no proof whether it was as a married or single woman; that they acted as man and wife, so far as sleeping together was proof of the fact, at different times; that the sheriff treated them as man and wife, and lodged them in the same cell, with but one bed; that she on one occasion called him ‘ my dear ’— also that, at Sidney, they stopped at a tavern, and acted towards each other as strangers — paid their bills separately, and lodged in separate apartments, and left for different points of destination; that, after the verdict of guilty, said Martha made her affidavit, stating that she was, in truth, the wife of said William, and that, having been treated as the wife of said William by the officers, she supposed that fact was conceded, and did not prepare to prove that she was such, and was taken by surprise; and that she could prové such fact, if allowed to do so, on new trial being granted.
    Upon this state of facts, a motion was made for a new trial, in substance, upon the following grounds :
    That the jury had been permitted by the Court to disperse, without the consent of prisoner or counsel, during the progress of the trial; that the officer, who took charge of the jury over night, was not sworn not to converse with them, and not to permit others to converse with them; that, when the cause was finally submitted to the jury, they did not retire under the charge of an officer specially sworn to take charge of the jury; that the said Martha was the wife of said William, and should not, therefore, have been convicted; that she was taken by surprise by the conduct of the officers, and was therefore not prepared at the trial to prove her marriage — all of which was overruled by the Court, and a new trial refused.
    To this decision of the Court a bill of exceptions was taken, and the following errors assigned:—
    
      First: That, after the jury were sworn and the trial commenced, the jury should not have been permitted to disperse and separate during the adjournment of the Court, but should have been placed in the custody of a sworn officer.
    Second: That, after the evidence and argument was closed, the jury were not placed in the charge of a sworn officer.
    Third: That the offence was joint, and the said Martha could not be legally convicted of committing the offence jointly with her husband.
    Fourth: That there was no evidence to rebut the presumption, that the said Martha had committed the offence by the command and under the influence of her husband.
    
      Stanton & Walker, for Plaintiffs in error.
    First: ’ It is claimed that the Court erred in not making some order in relation to the manner in which the jury should be kept, and in suffering them to disperse at the adjournment of the Court, during the progress of the trial.
    It is admitted, that it is competent for the Court to make . any order they may deem necessary, to prevent the jury from being tampered with during the progress of the trial, aiid before they retire to consider of their verdict.
    But it is their duty to exercise the discretion conferred upon them; and if they fail to do it, and turn the jury loose, to exercise their own discretion as to the manner in which they shall conduct themselves, it is error, and the judgment should be reversed. This position is believed to be abundantly sustained by the following authorities: 1 Chitty’s Crim. Law, top paging, 513, margin, 629; The King v. Wm. Stone, 6 Term Rep. 531; The People v. Meany, 4 Johns. Rep. 295; 3 Black. 375, note 37; 2 Barn. & Aid. 462; 4 Black. 360, note 21; McKinney v. The State of Illinois, Law Journal, vol. 3, No. 11, 502; Buller’s Nisi Prius, 308; 4 State Trials, 222; 4 Hawkins’ P. C. 233, chap. 36, sec. 15 ; 2 Caines’ Cases, 305; Foster, 16 and 23; Co. Littleton, 221.
    
      “ It is a general rule, that there can be no separation of the £ jury, in a criminal trial, after the evidence has been entered £ upon, and before a verdict is given.” Roscoe’s Crim. Ev. 227
    Second: The Court erred in sending out the jury to consider of their verdict, without placing them under the care of a sworn officer. The matter is not mended by the fact, that the sheriff conducted the jury to their room, and then left them in charge of one constable, who in turn handed them over to another, but neither of whom was sworn.
    It is no part of the official duty of the sheriff, or a constable, to take charge of juries while they are considering their verdict. They derive their power from the Court, and act in obedience to its orders.
    The custody and care of juries belongs to the Court; they may exercise their discretion as to the manner in which they shall be kept. This is a judicial act, and the Court cannot delegate the power of exercising this discretion to a ministerial officer, and thereby escape the responsibility that properly belongs to them.
    And the Court have no power, in the exercise of this discretion, to place the jury in charge of any body but a sworn officer.
    “ If they (the jury) cannot agree in a short time by consult- £ ing in their box, they retire to a convenient place provided for £ them, and the bailiff is sworn to keep them, as follows: You £ shall swear that you will keep this jury, without'meat, drink, £ fire or candle; you shall suffer none to speak to them, nor £ shall you speak to them yourself, but only to ask them if they £'are agreed, so help you God.” 1 Chitty’s Crim. Law, 516, margin, 632. In modern times, this oath has been so far altered as to allow the jury necessaries and refreshments ; yet no authority can be found for dispensing with it altogether.
    ■“ According to the cases of Van Doren v. Walker, 2 Caines’ £ Rep. 273, and Fink v. Hall, 5 Johns. Rep. 437; in that it £ does not appear, by the return, that a constable was sworn to £ attend the jury.” Beekman v. Wright, 11 Johns. Rep. 441. This was a civil case, on certiorari, to a Justice’s Court, to re verse a judgment for twenty-five dollars.
    “ It was the duty of the Court to have sent a sworn officer £ with the jury; and if this duty was neglected, and the fact £ should appear from a bill of exceptions, the judgment would ‘ be reversed.” McKinney v. The State of Illinois, cited above. The fact does appear from the bill of exceptions in this case.
    “The officer, oh receiving charge of them, (the jury,) is £ sworn to conduct them to their room, and not suffer them to £ separate, or to eat or drink, water only excepted, or to speak ‘ to them unless it be to ask them if they are agreed, or by £ order of the Court.” Engles v. The State of Ohio, 13. Ohio Rep. 492.
    “ Although, in modern times, the ancient strictness has £ yielded to a more enlightened reason, yet no rule tending c to insure the impartial administration of justice, and the purity £ of jurors, has, in the slightest degree, been abandoned or imc paired.” Sargeant v. The State of Ohio, 11 Ohio Rep. 414.
    The Legislature have recognized the necessity for swearing the officer who has charge of a jury, by providing for the payment of the clerk’s fees for administering the oath. Swan’s Stat. 395. The law presumes that, in the absence of such an oath, the jury will be tampered with; and it is for that reason, that the oath is required. Can this presumption be rebutted by proof? ■ We hold that it cannot. But if it can, are ex parte affidavits to be taken as conclusive ?
    We may deny the facts stated in the affidavits, and ask that the witnesses may be sworn “ to tell the whole truth.” We demand an opportunity to cross-examine them; we offer evidence to contradict them; we demand compulsory process to compel the attendance of .witnesses. It is a mockery of justice to permit a fact of this magnitude to be established by the ex parte testimony of such witnesses as the party may select.
    
      It is submitted with confidence, that, to dispense with this oath, would “tend” to defeat “the impartial administration of 5 r justice,” and endanger “ the purity of jurors-.”
    It has long been settled, that the testimony of a juror is inadmissible to prove misconduct in the jury. This effectually closes the door against the only practicable means that can ever be resorted to, to prove that'a verdict has been, in fact, procured through improper influences.
    If the door shall now be opened on the other- side, for the admission of improper influences, the purity of jurors, and the impartial administration of justice, cannot be presumed.
    Third: Martha Davis ought not to have been convicted, because the offence was committed by her jointly with her husband. The record and bill of exceptions show, that they are known by the same name, addressed each other as husband and wife — were treated as husband and wife by the landlord in Port Jefferson — by the officer who arrested them — by the tavern-keeper, where they stayed the night after they were arrested, and by the sheriff and jailor, from the time of their arrest till their trial; that there was no testimony tending to rebut this proof.
    “ Where, on the trial of a man and woman, it appeared by c the evidence that they addressed each other as husband and ‘ wife, and passed as such, and were so spoken of by the wit-c nesses for the prosecution, it was held sufficient.” Roscoe’s Crim. Evidence, 879.
    “ The law seems to protect the wife in all felonies, committed £ by her in company with her husband, except murder and ‘ manslaughter.” Hale’s P. C., chap. 47.
    “ If a woman commit theft, burglary or other civil offence, '£ against the laws of society, by the coercion of her husband, or £ even in his company, which the law construes a coercion, she £ is not guilty of any crime, being considered as acting by cortic pulsion, and not of her own will.” 4 Blackstone’s Com. 28.
    “ As the charge against the husband and wife was joint, and £ it has not been left to the jury to say whether she received the £ goods in the absence of her husband, the conviction of the c wife cannot be supported, though she had been' more active £ than her husband.” The King v, Archer, 2 English Crown 146.
    “The Court said the indictment could not be supported £ against Susannah Trimmer, as she was charged with having e committed the offence jointly with her husband. Whereupon £ the Solicitor General (Davis) entered a nolle prosequi.”.— Commonwealth v. Trimmer, 1 Mass. Rep. 476. . , ■
    “ The general doctrine is, that a feme covert incurs no legal £ guilt by the commission of civil offences, by the coercion of ‘ her husband, or even in his presence.” Commonwealth v. Neal, 10 Mass. Rep. 152.
    “ And if a wife act in company with her husband, in the ‘ commission of a felony other than treason or homicide, it is £ conclusively presumed that she acted under his coercion, and £ consequently without any guilty intent.” Greenleaf’s Evidence, sec. 28, page 35.
    It is deemed unnecessary to multiply authorities; and it is claimed that the judgment must be reversed, and that Martha Davis must be discharged from custody.
    
      H. Stanbery, (Attorney General,) for the State.
    Only three of the causes assigned for error are relied upon by the plaintiffs in error:
    First: That the jury were allowed to separate during the progress of the trial.
    It seems to me this is not an open question since the case of Sargeant v. The State, 11 Ohio Rep. 472. The Court held in that case, that “ in both civil and criminal cases the Court may, £ in their discretion, during the progress of a trial, permit the £ jury to disperse for the purpose of obtaining food and rest: £ but in no case can the jury, after they have retired to consider £ of their verdict, be permitted to separate and disperse until £ they have agreed.”
    
      Second: That the Court erred in suffering the jury to retire to consider of their verdict, without placipg them under the care of a sworn officer.
    There is no pretence of any misconduct on the part of the jury — of any separation, or of any access to them from without. On the contrary, it appears by affidavits made .part of the transcript, that they were kept in their room up to the time of their agreement, and were then immediately conducted into Court and delivered their verdict.
    As to the objection that no special oath was administered to the sheriff in relation to the custody of this jury, I am not aware of any practice of swearing a sheriff in such cases. In some circuits it is usual to administer such an oath to the constable in attendance upon the court. This oath is in the old form of the English practice. We have no statutory provision which requires it. At the best it is but a mere form, as is said by this Court in The State v. Engles, 13 Ohio Rep. 492.
    Third: The remaining assignment of error, is, that the Court erred in passing a judgment of conviction against the said Martha Davis, who was proven to be in company with her husband at the time of the commission of the offence.
    The only answer that need be given to this assignment, is, that it assumes a fact not warranted by the transcript. There is no proof that Martha Davis was the wife of William Davis. The testimony relied upon by the counsel for plaintiffs in error to establish the marriage,, is thus summed up-by him: “ In the £ first place they have the same name —address eacli other as £ husband and wife,” (videlicet, she once called him £ my ‘ dear,’) — ■“ were treated as husband and wife by the landlord in £ Port Jefferson, by the officer who, arrested them, and the £ tavernkeeper where they staid the night after the arrest, and £ by the sheriff from the time of their commitment until their £ trial.”
    But if such testimony even tended to establish the fact of marriage, the supposed wife had all the benefit of it. No part of it was excluded by the Court. It seems it did not satisfy the jury.
    
      
      Wm. Lawrence, upon the same side.
    • First: It is not error for the jury to disperse by permission of the Court during' the progress of trial when the Court adjourns. Sargean} v. The State-, 11 Ohio Rep. 472 ; The State v. Engles, 13 Ohio Rep. 492; Sutliffet.al.Y-. Gilbert, 8 Ohio Rep. 405, and.3 Ohio Rep. 53; People v. Douglass, 4- Cowen, 26; Clark y-. Coe, I Pá. R.ep. 278;. Crane v.. Sayer, 1.Hal-stead, 110 ; BurriU- v. Phillips,;! .Gall. Q. C. Rep.- 360 ; Sliép-, herd y'. Bayler, 2 Southard, 827 yT.Coweffs Rep. 232,238 in npte'; ex parte Hill, - 3 Cow-e.n; 355; -Winslow, v.-Draper,' 8 Pick. 170'; The King.v. Wolf et al., 1 Chit. Rep. 401,;-Daña v. Tricker, 4 Johns. Rep. 487 ; Harrison v;- -Rowan, 4 . Wash. C. C. Repi 32; 1 Chit. Cr. Law, 629; 2-B. &'A. 462; 1 Chit. Rep. 401; S. C. -Smith- v. Thompson, 1 Cówen, .221'; Douglass v.'.-Tousey,. 2-Wend. 352. • :The refusal to grant, a new trial is' in-theydiscretion-Pf the iCquit below, but- is not examinable on.er-rofV; 2- Peter’s .Dig.'. 549, ..citing U.. States v.Gillies, -Pét. C. C't Rep: ■ 15:9; The' case: of McKinney., v. ■ Illinois, Law J'pur. yo1.-3,No.'11, wq,s decided tinder a statute of Illinois,- . . . , ■ -■' ■ -■ V . -
    -.'■•Second: \ The judgment will not be-reversed because the ;Rpn'stabIes- 'were --hop specially.-.sworn.. The-'authorities cited show, that, without proof'of-misconduct on'the part of the jury, their yer'dict-will'.,not- be set--aside;/even -wheré they disperse after;haying retired 'to-, consider of- their verdict, (as is said in á case referred, tó; above,) '— even- “ in a- .capital case, contrary to the directions of 'the .Court.” If such separation of the jury will not, per se, set-aside their verdict; the fact that a constable had charge of the.'.jury-without being specially sworn, will not avoid a'verdict without' proof' of misconduct; No statute requires them to. be sworn;. such is not the practice in Qhio; but. our. law (Swan’s-Stat; 39)' recognizes them as officers of court. Besides, the record shows that the jury were “ in the custody of the sheriff,” .and-'hp is the executive officer, of -the court, and. as such, properly had charge of the jury. It is well settled that all presumptions of improper conduct on the p;.rt of the jury, may be rebutted, and it is done in this case by the affidavits made part of the record.
    Third: This Court will not review the discretion exercised by the Common Pleas in refusing a new trial, so as to permit Martha Davis -to make more full proof of her marriage. New trials rest in the sound discretion of the Court below, and its exercise in that Court will not be reviewed: U. States v. Gillies, Pet. C. C. Rep. 159. Nor can this Court infer that there was no evidence rebutting the legal presumption that Martha Davis committed the crime under the coercion of her husband. It will be presumed that the Court and jury had that evidence, and did their duty; 3 W. Law. Jour. No. 11, 491. The whole evidence is not set out in the bill of exceptions. If Martha Davis proved her marriage, the jury found' that the presumption of coercion was rebutted. If she did not prove it, and if it does not so appear here, there is nothing on which this Court can act to grant a new trial. If that defence was not made, it is now too late to make it. Any other rule would encourage a defendant to hold in reserve a part of his defence, and would lead to endless new trials.
   Read, J.

The errors complained of, are, in substance, a violation of law in the conviction of Martha Davis; a non-observance of the rules of conducting a criminal prosecution; and a refusal to grant her a new trial for the causes set forth in her affidavit. These errors look to the entire discharge of Martha Davis, and a new trial as to one or both.

As to the entire discharge of Martha Davis. It is claimed that she was the wife of William Davis, and joined with him in the commission of the crime, and, therefore, was not guilty, as the law presumes that she acted by the command and coercion of her husband. The legal principle claimed for her benefit, is admitted; but the fact of coverture, necessary to bring her within its operation, was not established. The fact of he? being the wife of William Davis, was submitted to the jury and found against her. Hence her conviction was legal. True, the facts and circumstances tending to prove her married, were objected to by the prosecuting attorney after being detailed in evidence, but the record does not show that they were ruled out or withdrawn from the consideration of the jury.

As to the error in refusing to grant a new trial. New trials are granted for some error or misconduct in the conducting of a trial, or for facts or circumstances which lie without the record, but which, when established, induce the belief that the accused has not had a full and fair opportunity to disprove the charge, or to claim the benefit of those safe-guards and principles secured by the law to every person upon trial for crime. Motions for new trials are said to be addressed to the sound discretion of the Court, and its decision upon such, motions will not be disturbed by a revising Court. This depends upon the grounds upon which the motion for a new trial rests.

If a new trial be asked because of error in the proceedings, which appear of record, and it be refused, it is error, and the judgment will be reversed. But if the grounds of the new trial are matters of facts which are extrinsic to the record, and are to be established by proof other than the record, the credibility of witnesses and the effect of the evidence is necessarily submitted to the Court. If they find against the facts claimed, and refuse a new trial, such finding and refusal are the legitimate exercise of a discretion reposed, which is final, and cannot be reviewed or reversed. Of such nature was the application of Martha Davis for a new trial, for the grounds set forth in her affidavit,- made after verdict, that she was a married woman, and could establish, the fact if permitted the opportunity, on a new trial. The Court undoubtedly were not satis fied that her statements were true, looking to the whole evidence as disclosed on the trial.

As to the errors claimed to have been committed in the mode of conducting the prosecution. It is claimed as error that the jury were permitted to separate and disperse during the progress of the trial, and before verdict, and were.not sent out in charge of an officer specially sworn, when they retired to consider of their verdict.

Whether jurors shall be permitted to disperse during the progress of a trial, is a matter committed to the sound discretion of the Court. It is no longer an open question. This was decided in the case of Sargeant v. The State of Ohio, 11 Ohio Rep. 474; and also in the case of The State of Ohio v. Engles, 13 Ohio Rep. 492. In the latter case it was decided, furthermore, that the jury might be permitted to disperse after they had agreed, and return a sealed verdict. The reasons for relaxing antiquated strictness, are fully given by the. Court in those cases.

It is said that the officer having charge of the jury-when they retired to consider of their verdict, was not specially sworn.

The jury retired under the charge of the sheriff. He is an officer sworn to discharge his duty; and to take charge of all juries constitutes a part of his duties. It is not necessary to administer to him an oath to discharge his whole duty, and a special oath to discharge each particular duty. One of the objects of administering the special oath to officers having charge of juries, in ancient times, appeared to be, to secure an observance of those senseless and harsh measures which looked oftentimes to the compelling of a verdict by physical suffering, rather than a conviction of reason, which both officer and jury were disposed to disregard. That has passed away, and with it the means resorted to, to enforce it. Jurors are now considered as honest men — disposed to discharge the obligations of their oath and do justice; and it is not going very far, to presume that they would resist all efforts to corrupt them by improper influences, as much as a sworn constable.

But in this case there appears to be nothing wrong, even in form. It is not claimed that there was, in point of fact. So far as the jury were concerned, it appears to be conceded that they acted honestly and fairly. The sheriff, who was the proper officer, took the jury in charge. The fact that he permitted a constable, w;hó .was in' attendance on the Court, to watch the door in his temporary absence,-we do not think such' a violation of principle as would demand á new trial. Besides; under the statute, the .'sheriff -is entitled-to the-assistance of constables during the térfn of" court, and when so acting,' he is bound by his official óath, and need not be- specially ,'s.worn.

Judgment Affirmed.  