Page images
PDF
EPUB

Crockett vs. The State.

the jurors or within their hearing on the subject of the case; and if it is possible to disprove misconduct, or that nothing occurred which was calculated to exert an unfavorable influence upon the verdict, the proof seems to have been made in this case. It is true, the affidavits of the jurors themselves were not procured as it is insisted they should have beenshowing that they heard no expressions from any one while separate which were calculated to influence their judgment or prejudice the defendant; but we do not think such affidavits were absolutely essential to disprove the fact that the separation worked no harm to him. It is apparent that in some of the states there has been a relaxation of the old rule that any separation of the jury in a capital case was a ground for a new trial, even without any evidence that the jury were communicated with concerning the cause. But the proof required by the rule in the Keenan Case would seem to afford full protection to the defendant against an improper verdict brought about or caused by separation. We must therefore hold that the affidavits before us do disprove, with sufficient legal certainty, that the defendant was prejudiced by the separation of the jurors.

3. When the cause was finally submitted, an officer was sworn to take charge of the jury. The learned circuit judge told the officer that he might remain in the room with the jury while they were deliberating, but at the same time cautioned such officer, in case the jury agreed, not to disclose the verdict to any one, nor to communicate to any one the progress or result of the deliberations of the jury. We think the fact is fully established by the affidavits, that the officer remained in the room with the jury while they were considering of their verdict, for the purpose of attending to the fire or furnishing the jury with water; but there is nothing whatever to show that he took any part in their deliberations or attempted in any manner to influence the verdict. But it is insisted by the learned counsel for the plaintiff in error, that the mere

Crockett vs. The State.

presence of the officer in the room while the jury were considering of their verdict affords a sufficient ground for granting a new trial. It is said the due administration of justice requires that the utmost privacy should attend the deliberations of the jury; that it is often necessary for the jury to comment upon the testimony of witnesses, weigh their conflicting statements, and ascertain the real fact in issue; and. that the presence of an officer, whose friends may have been witnesses on the trial, will prevent that full interchange of views and free criticism in which the jury would indulge if left entirely alone. There is undoubtedly force in these observations. But still we must presume, in the absence of all showing to the contrary, that the officer was a proper person to take charge of the jury; that his presence in the room with them would not tend to embarrass their deliberations; and that he was entirely disinterested as to the result of the trial. It certainly will not do to assume that the learned circuit judge would have placed the jury in charge of an officer who had shown an undue interest in the event of the cause, or whose friends had been material witnesses on the trial, so as to render the presence of the officer in the room with the jury a restraint upon their deliberations. Indeed, there is nothing to show that the officer in this case was guilty of any misconduct, or was unfaithful in the discharge of his sworn duty. Our statute upon the subject of criminal' trials in justice's court provides that after the jury have heard the proofs and allegations in the case they shall be kept together in some convenient place until they agree on a verdict or are discharged by the court; and an officer shall be sworn to take charge of them, in like manner as upon trials in justice's court in civil proceedings. Section 4757, R. S.

In the justice's act the form of the oath which is administered to the officer is given. No form of oath is prescribed for the circuit court, but doubtless the same oath substantially is administered to the officer as that taken in the justice's

Crockett vs. The State.

court. See section 3652, R. S. That is, the officer is usually sworn to keep the jury together in some private and convenient place without drink, except water; not to suffer any person to speak to them, nor to speak to them himself, unless by order of the court, except to ask if they have agreed upon their verdict, until they have so agreed, or have been discharged; not to communicate to any person the state of their deliberations, or the verdict which they have agreed upon. Presumably an oath of this character was administered to the officer in this case. The language of such an oath implies that the officer is to be near the jury so as to prevent any communication, orally or otherwise, from being made to them, and where he may know the state of their deliberations. It is frequently the practice in this state for him to remain in the room with the jury, though of course he should religiously refrain from taking any part whatever in their conversation or discussions. But if the officer is a proper person to take charge of a jury, especially where, as in this case, the court directs him to remain in the room with the jury while they are considering of their verdict, we can see no valid objection to the practice. If in the room with the jury he is in a much better position to prevent any communication from being made 'to them by third parties to influence their verdict, than if he were away out of their sight and hearing. This must be obvious to any one reflecting a moment upon the subject. The only doubt we have had upon this point arises from the recent decision of the supreme court of Michigan in People v. Knapp, 42 Mich., 267. In that case it was held that if the officer in charge of the jury remain present in the room during the deliberations of such jury, though he may do nothing but listen, and it does not appear that a party has been prejudiced thereby, yet this will be a good ground for setting aside the verdict. We have examined. with some care the opinion in that case, and confess, while we have the highest respect for the decisions of that able and enlightened tribunal, we are unable

Powell and others vs. The State.

to adopt its reasoning. We do not care to make any further comment upon the decision than to say it is not satisfactory to our minds, and we decline to follow it. This disposes of all the material points relied on for a reversal of the judgment. By the Court.-The judgment of the circuit court is affirmed.

POWELL and others vs. THE STATE.

March 10-May 10, 1881.

CRIMINAL LAW, etc. Larceny on moving cars: where indictable. Where one enters a moving car in one county, with intent to commit a larceny in such car, and with the same intent continues in the car until it passes into another county, and there commits the intended larceny, there is in law a fresh entry in the latter county, and the offense is indictable therein under the statute.

ERROR to the Circuit Court for Columbia County. An information was filed by the district attorney in said court against James H. Powell and four others, charging that they "did feloniously break and enter in the night time a certain railroad freight car then and there being the property of the Chicago, Milwaukee & St. Paul Railway Company, with intent feloniously to steal, take and carry away the goods and chattels of said company, then and there being in said car." There was a verdict of guilty against all the defendants; a motion in arrest of judgment was denied; and, judgment having been rendered pursuant to the verdict, the defendants sued out a writ of error to reverse such judgment.

The cause was submitted on the brief of G. J. Cox for the plaintiffs in error, and that of H. W. Chynoweth, Assistant Attorney General, for the state..

For the plaintiffs in error it was argued, 1. That unless the crime was committed in the county of Columbia, the court

[ocr errors]

Powell and others vs. The State.

had no jurisdiction. Const. of Wis., art. I, sec. 7; R. S., sec. 4679. The statute under which the accused were convicted (R. S., sec. 4409), does not make being in the car a crime, but punishes only the entry with felonious intent. When the prisoners entered the car at Watertown, the crime, if any, was complete; and they could be held to trial only in the county where such entry was made. A thief may be convicted of larceny in any county to which he removes the goods; but here the goods remained in possession of the railroad company, and were taken by it into Columbia county. The statute does not make being in the car a fresh entry; and it should be strictly construed. State v. Welch, 37 Wis., 200. 2. That the intent to commit the crime of larceny when entering the car constitutes the crime, and if the accused entered the car for any other purpose, they could not be convicted under the statute (McCourt v. The People, 64 N. Y., 583; State v. Ryan, 12 Nev., 401; S. C., 28 Am. R., 802); that the felonious intent should. be established beyond reasonable doubt (State v. Blædow, 45 Wis., 279); and that the evidence of such intent in this case was insufficient.

BY THE COURT. 1. The conviction of the plaintiffs in error of the crime charged in the information cannot be disturbed, for want of testimony tending to show the felonious intent. charged therein. There was sufficient proof of such intent to send that question to the jury.

2. Conceding that the plaintiffs in error entered the car in the county of Jefferson, if, with the same felonious intent, they continued therein until the car passed into the county of Columbia, the offense charged was committed in the latter as well as in the former county. The felonious intent not being abandoned, it is a fresh entry in each county into which the car was taken while they so remained in the car. This is held in analogy to the common-law rule that where a person steals goods in one county and carries them into another county, the

« PreviousContinue »