
    Donston vs. State.
    One of the jurymen stated to his fellows after they had retired, that he had heard a witness whose credibility was attacked sworn before the grand jury, and that his statement was the same he had made to the traverse jury. It is held that this was illegal and vitiated the verdict, it appearing that the statement had much influence in producing the verdict of guilty.
    Donston was indicted for horse-stealing, ■ in the Circuit Court of Lincoln county, and the case was submitted to a jury, at the October term, 1845, on the plea of not guilty; Judge Marchbanks presiding.
    The case turned chiefly on the credit due to the testimony of one Forbes, who was with the defendant as he alleged, when defendant stole the horse, he having stated in advance that he intended to go with defendant for the purpose of bringing him to justice. The defendant was found guilty by the jury, and on a motion for a new trial he offered the affidavits of two of the jurymen in support of the motion. One of the jurors, Price, in his affidavit stated that after the jury had retired to consider of their verdict, he could not bring his mind to any conclusion; that he was not satisfied of the guilt of the defendant, and whilst in this state of mind Arnold stated to the jury that he had heard Forbes give evidence before the grand jury, and that he made the same statements before the grand jury that he had to the traverse jury; that this statement had a powerful influence on bis mind in inducing him to bring in a verdict of guilty, as his main difficulty was in believing the evidence of Forbes. He also stated that the jury agreed to recommend Donston to the Governor for a pardon, and that if neither of these things had taken place, he did not believe he would have agreed to the verdict. Ward, one of the jurymen, in his affidavit stated that whilst considering what credit was due to Forbes’ testimony, Arnold, one of the jurymen, stated that he had heard the testimony of Forbes before the grand jury, and that it was consistent with his statement to the traverse jury; that he was a member of the grand jury that found the bill against the defendant, and also that the jury agreed to recommend the defendant to the mercy of the executive.
    
      This motion was overruled and defendant sentenced to three years confinement in the penitentiary.
    From this judgment he appealed to the Supreme court.
    
      W Ross and McEwen, for plaintiffs in error.
    They cited Crawford vs. State, 2 Yerg. 6; Boobie vs. State, 4 Yerger, 111.
    
      Attorney General, for the State.
   Turley, J.

delivered the opinion of the court.

The prisoner was indicted and convicted of the offence of horse stealing in the circuit court of Lincoln county, and upon appeal in error, to this court, several causes are assigned for the reversal of the judgment of the court below; but one of which do we deem it necessary to discuss.

It appears from the bill of exceptions, that the prisoner was convicted upon the testimony of James Forbes, the only witness who proves the commission of the offence; that his position in relation to the transaction, was, to say the least of it, of a very doubtful character, and his credibility upon oath, by no means above suspicion. It also appears from the affidavit of two of the jurors, that they found great difficulty in finding the prisoner guilty; that William Arnold, one of the jury, stated to them in the jury room, after the retirement of the jury, and without having been examined in court, that he had heard James Forbes examined before the grand jury that found the bill of indictment, and that he then made the same statements that he made before the traverse jury, and these jurors swear that this statement of Arnold had a powerful influence on them in finding the verdict of guilty against the prisoner. It has always been held that testimony given to a jury after it has left the presence of the court, vitiates a verdict, because it is not given on oath and is given without the knowledge of those to be affected by it, and who have therefore no opportunity of meeting and repelling it. Now, that Forbes swore the same things before the grand jury, in relation to this offence, that he did before the petty jury, is a substantial fact, capable of proof and disproof, and calculated to affect his credibility, either the one way or the other, and ought to have been heard in open court. It produced a powerful effect upon the minds of the jurors, and very probably led to the conviction of the criminal. This is a stronger case than that of Boobie vs. the State, (4th Yerger) which is an authority directly in point upon this question, and must control it. All the other points made are in favor of the State.

Judgment reversed and prisoner remanded for a new trial.  