
    J. G. Whitlow v. R. R. Moore.
    (No. 1512, Op. Book No. 2, p. 289.)
    Appeal from Parker County.
   Opinion by

Quinan, J.

§ 1052. Verdict; manner of receiving. The jury returned their verdict to the judge at his residence, and not in open court. This occurred in the night, and he excused one of the jurors from being present at court next morning. On the lygxt morning, five of the jurors being present in- open court, the verdict was read by the clerk and assented to by the jurors present, and the judge told the parties that if either of them desired the absent juror to be present, he would have him sent for, but neither party requested this to be done. The manner in which the verdict was returned and received was excepted to by the appellant. Held: There can be but little doubt that the objection to the verdict is fatal to its validity. Rev. Stats., arts. 1322 and 1325, direct the manner of receiving the verdict of the jury, and the proceedings to be had thereon. It must be returned in open court by the jury. It must be read to them in open court, and inquiry made of them whether it is their verdict, and either party has the right to “poll the jury.” A verdict delivered to the judge at his private residence is not a compliance with these requirements of the law. It is not a proceeding conducted in open court and in the face of the public. How much of the requirements of the statute may be considered as merely directory, and such as may be waived, it is not necessary to consider, for in this case the parties consented to nothing. So, though the dispersal of the jury, after the delivery of the verdict to the judge, might not be fatal to the validity of their verdict, but could be cured if they afterwards appeared in open court and returned their verdict there, yet that was not done in this case. In truth, thex’e was no verdict rendered ixx opsxx court by the jury. But five men of those impaneled appeared, axxd these did not constitute a jury. The offer of the county judge to the parties that, if they x-equested it, he would send for the absent juror, did not require of them acceptance or rejection. It was axx offer he had a right to make, and no-power to exiforce the acceptance óf. He had excused the juror from attendance. What process could he issue to bring him back, and how punish him if he failed to obey his request? To tolerate such a loose and irregular procedure in x-espect to trial by jury, while seriously interfering with the conduct of business ixi the coxxrts, would jeopardize the rights of parties, and destroy the respect and confidence which ought to attend the trial by jury and the administration of justice. [19 Ind. 126; 6 Minn. 239.]

February 23, 1881.

§ 1053. Verdict; affidavits of jurors to impeach. The practice of permitting jurors to make affidavit of facts which transpired in the jury room, and to state how they made up their verdict, in order to show that their verdict was erroneous and ought to be set aside, is wholly irregular, and such practice cannot be too severely reprobated.

Reversed and remanded.  