
    *Hall v. Commonwealth.
    December, 1835.
    Jury — Attempt to Influence — Placard Placed in Jury Room  — Case at Bar. — On the trial of an indictment for passing a counterfeit bank note, the jury on retiring and being enclosed, find a placard stuck against the wall of their room, charging one of the jurors with being himself a counterfeiter, and insinuating that he had attended th e court for the purpose of getting on the jury; the paper is read by the whole jury; verdict, guilty: the fact of this placard so put up and read by the jury, was no ground for setting aside the verdict, unless it appeared, that the mind of the juror impugned, was thereby prevented from a deliberate exercise of judgment, or that the placard had the effect of a menace upon him, or influenced the deliberations and verdict of the jury.
    Hall was indicted, tried and convicted, in the circuit superiour court of Kanawha, for knowingly passing a counterfeit note of the bank of the Valley ; and the jury ascertained the term of his imprisonment in the penitentiary to be ten years. He moved the court to set aside the verdict and direct a new trial, 1. Because when the jury retired to their room to consider of their verdict, they found, and all of them read, a paper stuck up against the wall, charging one of 1.he jury with being himself a counterfeiter, in these words — “One of the jury is a counterfeiter. Who has never heard of James Sturgeon ? Can any one tell what brought Mr. Sturgeon here ? It was expected he would be here” — by which paper the mind of the juror Sturgeon was so excited and disturbed, and his judgment so impaired, as to be incapable of giving the prisoner’s case, a fair, full and free examination. 2. Because by the paper aforesaid, the juror Sturgeon was indirectly menaced and threatened, and therefore the prisoner was not convicted according to law. And 3. because the whole jury were tampered with, and an undue influence attempted to be exercised over them all, by putting up the paper in the jury room. Three of the other jurors were examined to prove the effect which the paper produced on Sturgeon at the *time ; and witnesses were also examined to prove its effect on him, after the verdict was rendered, and the jury discharged. The substance of this evidence was, that- the imputation made Sturgeon very angry and indignant, against the author of the paper, and extremely desirous to ascertain who it was. The circuit court, being satisfied with the verdict, as fully sustained by the evidence given at the trial, overruled the motion for a new trial; to which the prisoner’s counsel excepted.
    The court sentenced the prisoner to ten years imprisonment in the penitentiary, and to solitary confinement &c. for one tenth of the term. And now, he presented a petition to this court, for a writ of error to the judgment.
    
      
       See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
      Excessive Judgment. — The principal case is cited in Ex parte Mooney, 26 W. Va. 41, 53 Am. Rep. 63. to the point that if the judgment is in excess of that which the court rendering it had by law the power to pronounce, such judgment is void for the excess only.
      The principal case is distinguished in State v. Mooney, 27 W. Va. 548. See Brooks’ Case, 4 Leigh 669; Murry’s Case, 5 Leigh 720.
    
   PARKER, J.,

delivered the opinion of the court — This is an application for a writ of error to the judgment of the circuit supe-riour court of Kanawha sentencing the petitioner to ten years imprisonment in the penitentiary, he having been convicted by the verdict of a jury, of passing a counterfeit bank note, knowing it to be counterfeit. Various errors are assigned in the petition, but several of them do not arise on the record, and the whole matter resolves itself into the question, whether the court ought to have granted the new trial asked for, on the ground that a paper was stuck up in the jury room, and read by the jury, when they retired to deliberate on their verdict, in which James Sturgeon, one of the jury, was charged with being himself a counterfeiter, and insinuating that he had come to the place of trial for the purpose of getting on the jury. The ground assumed is, that Sturgeon was so excited and distressed in mind by the exhibition of that paper, and his judgment so impaired, that he was unable to give the case a fair, full and free examination. Without deciding what the opinion of the court would have been, if this allegation had been borne out by evidence, we are of opinion, that *the evidence, in this case, proves nothing more than anger or excitement on the part of Sturge<^i, against the author of the writing, without shewing in him any want of self-possession, or of a full and free exercise of the mind, when the question of the prisoner’s guilt or innocence was put seriatim to each juror. The testimony of Sturgeon himself is not in the record, and if it was, it would probably be entitled to little or no weight, because nothing would be more dangerous in practice, than to receive the testimony of jurors after verdict, in relation to their motives, situation or feelings, when they gave it. His subsequent declarations to several witnesses, shew, that he was disturbed and excited at the time he made them ; but they do not afford to the court any evidence, that his verdict was at all affected by these feelings; whilst the testimony of the three jurymen in relation to what passed when the question was taken, lead to an opposite conclusion. We do not see any necessary connexion between the placard, and confusion or inability of mind. The charge was calculated, indeed, to arouse in the mind of an innocent man, angry and indignant feelings ; but when he came to render his verdict, they might exercise no influence over his judgment. Unless there is a necessary connexion between the two things, the court ought at least to be satisfied of the fact of such influence : otherwise, it would be easy for the friends of any accused person to put up such placards themselves, and to secure the certainty of obtaining a new trial, if the verdict should be against him. In this very case, it does not appear who placed the writing against the wall of the jury room, and it is at least possible that it might have been done by a friend of the prisoner, if the juror was in fact free from all suspicion of the acts and designs charged or insinuated.

It is said also, that the jury were tampered with, and an undue influence was attempted to be exercised over them all by the placard ; and that one of the jurors was ^menaced and threatened, and therefore the prisoner was not convicted according to law. The act of which the prisoner complains, was a most reprehensible one, for which the author, if discovered, ought to have been severely punished. But unless this act produced some effect upon the minds of the jurors, and materially influenced their deliberations and verdict, it is not perceived, how it makes the conviction unlawful. If we were to decide, that every attempt to tamper with or to intimidate a jury, or one of their number, whether successful or not, compelled the court to grant a new trial, when it was entirely satisfied that the verdict was fully sustained (as in this case) by the evidence, we should establish a most dangerous precedent, subversive of the best established principles of criminal law. Such a precedent we cannot establish.

We are of opinion, that the circuit court properly refused to grant a new trial. "

There is however, an error in the judgment, not adverted to in the petition. The prisoner is sentenced to solitary confinement for one tenth of the term of ten years ; whereas by the statute of 1832-3, ch. 19, § 2, the maximum of solitary confinement is limited to one twelfth. The judgment must be corrected in this particular. See Brooks’s case, 4 Leigh 671; Murray’s case, 5 Leigh 724.  