
    *Thomas Kennedy v. The Commonwealth.
    Jurors — Communications with Outsider — Case at Bar.— After the retirement of a jury in a Criminal case, (they being- kept together, under the care of the Sheriff, in a room separate' from all others,) one
    of the jurors called to a friend from a window, desiring him to inform his family of the 'cause of his absence, and requesting him to procure his watch, and deliver it to the Sheriff for h'im: this conversation is not sufficient to set aside the verdict, although the Sheriff happened not to hear it.
    Same — Same—Evidence' of Juror. — Although the evidence of the juror himself, who held such conversation, and of the person to whom it was addressed, should be received with great allowance, yet the evidence of another j uror, who heard the conversation, and was in no manner implicated in a charge of improper conduct, is entitled to the fullest weight.
    Same — Keeping Togethert — Case at Bar. — The jury, on their retirement for the night, were placed upstairs in a tavern, in five lodging rooms, which were separated from each other by a common passage, into which they all open: the doors of the lodging rooms were generally open; the doors to the common passage were kept constantly shut, so as to exclude other persons. This disposition of the jury is a strict compliance with the Law, which requires that the j ury should be kept together.
    Same — Opinion Formed —Case at Bar. — After verdict against a prisoner charged with an atrocious of-fence, proof that one of the jurors, (before he was summoned, and who properly did not expect to be on the jury,) said, that the prisoner “was doomed to the Penitentiary; that he would go, if he had even attempted to commit the crime,” is not sufficient to shew that the juror had formed a deliberate opinion touching the prisoner’s guilt, or had prejudged the case. The verdict should not be set aside on such proof.
    The petitioner applied to this Court to grant him a Writ of Error to a judgment of the Superior Court, whereby he was sentenced to an imprisonment in the Penitentiary for ten years. The facts of the Case are fully developed in the following' opinion.
    
      
      Jurors — Impeachment of Verdict by Their Own Testimony. — On this Question, see the principal case cited in foot-note to Com. v. McCaul, 1 Va. Cas. 273; State v. Cartright, 20 W. Va. 43. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      Same — Separation.—As to what constitutes separation of the jury as will vitiate the verdict, the principal case is cited in Thompson v. Com., 8 Gratt. 643, 644, 645, 646. See also, foot-note to same case.
      The sheriff is ex officio bound to keep the jury when adjourned in a criminal cause, and it is not indispensably necessary that he should be sworn; but if it were necessary to swear him, it would be presumed that he was sworn, in a case where the record does not show the contrary. Bennett v. Com., 8 Leigh 752, citing Kennedy's Case, 2 Va. Cas. 510; Mendum’s Case, 6 Rand. 704. See also, citing the principal case, Barnes’ Case, 92 Va. 806, 23 S. E. Rep. 784.
    
    
      
      Same — Objection to. — On this question the principal case is cited in foot-note to Smith v. Com., 2 Va. Cas. 6; Com. v. Hailstock, 2 Gratt. 566, send foot-note; footnote to Jackson v. Com., 23 Gratt. 919; Curran v. Com., 7 Gratt. 623; Bristow v. Com., 15 Gratt. 634; State v. Greer, 22 W. Va. 824; Thompson v. Updegraff, 3 W. Va. 644; State v. McDonald, 9 W. Va. 465; Sweeney v. Baker, 13 W. 228; State v. Hobbs, 37 W. Va. 826, 17 S. E. Rep. 385; Jones v. Com., 1 Leigh 616; State v. Harrison, 36 W. Va. 736, 15 S. E. Rep. 984.
    
   SMITH, J.,

delivered the opinion of the Court:

This is an application for a Writ of Error to a judgment of the Superior Court of Haw for Rockingham county.

At the last Term of the said Superior Court, the petitioner was indicted and convicted of a rape. At a subsequent day of the Term, a motion was made for a new trial, which motion was over-ruled, and the petitioner sentenced to ten years imprisonment in the Penitentiary.

It is contended for the petitioner, that he was entitled to a new trial, for the following causes:

1. Because one of the jurors held a conversation with a stranger, after retirement.

2. Because the jury were not kept together.

3. Because a juryman, to wit, (John Embry,) was committed in his opinion before the trial.

*In the Bill of Exceptions which was signed and made part of the record, all the affidavits and testimony upon which the motion for a new trial was founded, are set forth; from which it appears, that at the time of the conversation between James Gray, one of the jury, and Robert Mooney, his relation, upon which the first objection is founded, there was no separation of the jury; they were all in the same room, and the Deputy Sheriff was also present: the objection is, that in such conversation, there was, or might have been, a tampering with the jury. The evidence on the part of the petitioner only proves, that whilst the jury were all in a dining room and some of them at the windows, some conversation passed with a person in the street at the distance of five or six yards; that although the witness did not hear what passed, yet the conversation appeared to be open, without any attempt to conceal what was said. The evidence of James Gray, the juryman, and Robert Mooney, the other person alluded to, gives this explanation of the transaction; “that Gray, the juryman, being at the window and seeing Mooney his relation pass b3, requested him to let his family know that he was detained on the jury, and should not be at home that night, and desired him (Mooney) to procure his watch and give it to the Deputy Sheriff, to be handed to him, to which Mooney made no reply, but did as desired.” It may be said that Gray and Mooney are both implicated, and that their testimony goes to exculpate themselves. This is admitted, and we are all of opinion, that their testimony is to be received with great allowance: but in all particulars, they are corroborated by Archibald Rutherford, another juror, who was sitting at the window with Gray, and heard all that passed. Although Rutherford be a juror, he is entitled to full credit; because in this case he was not implicated, nor was any of the jury except Gray, accused of anj' I improper conduct during the trial. In the Case of Massey Thomas v. The Commonwealth, decided at June Term, 1825, one ground upon which the Writ of Error was applied for, was, that a juror in presence of the Sheriff, at a time when he was separated from the other members of the jury, directed a neighbour, who was passing on his horse at some distance, to inform his family of the cause of his not coming home: this was decided not to be sufficient to set aside the verdict. The present is equally as strong a Case in favour of the Commonwealth: the jury *and Deputy Sheriff were all in the room ; and although the Deputy Sheriff did not hear the conversation, yet it is proved by one of the jury who was no way implicated in the transaction, and whose evidence, therefore, is entitled to full credit. In Massey Thomas’s Case, it was decided that a bare possibility of a tampering with the jury is not sufficient to set aside a verdict; but in the present Case, if, as we suppose, the evidence of the juror, Rutherford, is entitled to full credit, it was impossible that there could have been any tampering in that particular instance. This circumstance, therefore, afforded no ground for a new trial.

2. It is contended that there was a separation of the jury, and that a new trial ought to have been awarded on that ground. The evidence relied upon to establish this fact, proves that the jury were kept up stairs in a tavern ; that they occupied five lodging rooms, that those rooms were separated by a passage, into which the only doors to said rooms opened; that the said doors were continually open except that at one time, for a few minutes, one of them was closed; that at each end of this passage, there were doors which were continually kept fastened and secured, and that one or more of the Deputy Sheriffs were continually attending on said jury, and did not know or believe that any person could have had access to them. We are all of opinion, that keeping the jury in rooms thus situated, and attended, was a strict compliance with the Law, which requires that a jury in such case should be kept together.

The third ground upon which the new trial was asked for, is that John Embry, one of the jury, was committed, in his opinion, before the trial. The affidavit of Richard Robinson is relied upon to prove the fact. He states, that half an hour before the Court set upon the trial of the petitioner, he heard the said Embry say, “that Kennedy, the prisoner, was doomed for the Penitentiary; that he would go to the Penitentiary if he ever attempted to commit a Rape.” Embry, by his affidavit, denies that he had ever seen or heard of the prisoner until the daj of the trial, and is positive that he had never expressed anj opinion, as to his guilty or innocence: but take it upon the evidence of Robinson, and it does not appear that Embry was expressing his private opinion as to the guilt of the prisoner, or what judgment ought to be rendered aganst him. He had not then been summoned, and probably, did not expect *to be upon the jury, and was only expressing an opinion as to what he supposed a jury might probably do in such a case, considering the nature of the offence of which the prisoner was accused, and the aggravating circumstances under which it was said to have been perpetrated; for it appears by a certificate annexed to the record, that the prisoner was a school-master, and was charged with having committed the offence at his schoolhouse, upon a girl about 12 years of age, who was there as one of his pupils.

The Case of 'Munford Smith, who was convicted of murder in the second degree, and applied to this Court for a' Writ of Error, at the June Term, 1815, (ante, p. 6,) was a much stronger Case in favour of the prisoner than the present: and if it be correct, the objection made in this case to the juror, ought not to avail the prisoner.

Upon the whole we are of opinion, that there is no ground on which the Court would be justified in awarding a Writ of Error; the motion is therefore over-ruled.  