Darling and others v. Peck and others.

1846.

The fifth assignment is for the admission of the magistrate's IN BANK. transcript. The main objection urged in argument to this, is Dec. Term, disposed of in disposing of the last point. We are not informed by the record what were the exceptions taken to the admission of this evidence in the Common Pleas; and if the transcript was competent for any purpose, it was rightly admitted. We cannot say it was used for any other object than the legitimate one. The presumption is, that it was so used. It was clearly proper evidence to enable the Court to determine the amount due in equity; and if used to establish anything for which it was incompetent, the record should have shown the fact.

There is still a general error. This presents the question whether the action of debt can be maintained, inasmuch as the remedy prescribed by statute was scire facias. Had the statute remained in force, the remedy which is provided might have been pursued, but that remedy was the creature of the act, and expired with it. If the common law action does not remain, we should find here the case of a wrong without a remedy; a thing, indeed, which courts are not over anxious to discover

in this case that which which does not exist. The words of the statute, "may sue out a writ," &c., were not intended to be mandatory. They are not, as contended by counsel, of the same import as shall sue out a writ of scire facias, and shall have no other redress. Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is, to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress. Judgment Affirmed.

IN BANK.

Dec. Term,

1846.

William and Martha Davis v. The State of Ohio.

WILLIAM DAVIS and MARTHA DAVIS VS. THE STATE

OF OHIO.

Whether the Jury shall be permitted to separate during the progress of the trial in a criminal case, is matter of sound discretion with the Court trying the case, and the exercise of this discretion cannot be questioned on error.

When the Jury retire, in the charge of a Sheriff or of a qualified Constable, such officer need not be specially sworn.

If a wife join with her husband in the commission of a crime less than murder, she is presumed to act under the coercion of her husband, and in law is not guilty; but the fact of coverture must be clearly made out by proof.

THIS is a WRIT OF ERROR to the Court of Common Pleas of LOGAN County; and the record presents the following state of facts:

William Davis and Martha Davis were convicted of arson, at the August term, 1846, of the Court of Common Pleas in Logan county, and sentenced to the penitentiary for the term of ten years.

The bill of exceptions and affidavits, in substance, disclose the following facts:

That, after the jury was sworn, and some testimony submitted, the Court adjourned for dinner, and permitted the jury to disperse until the coming in of the Court in the afternoon, first having cautioned the jurors to have no conversation with others, or among themselves, respecting the cause under consideration; that, at night, a constable in attendance upon the Court, was requested by the Court to take the jury to a tavern, and remain with them until the next morning; that said constable was not sworn to hold no conversation himself with the said jury, or not to permit others to converse with them; that, after the cause was submitted to the jury, they retired to their room, under the charge of the sheriff; that, during a portion of the time they were in charge of said constable, the constable stood in the hall, in view of the jury-room; that no person had any conversation

William and Martha Davis v. The State of Ohio.

with said jury during their deliberation; that the said sheriff IN BANK. Dec. Term, and constable were not specially sworn as to their duties re- 1846. specting the jury.

That, during the progress of the trial, evidence was submit-. ted, that William and Martha Davis resided in Miami county; that said Martha kept house, but no proof whether it was as a married or single woman; that they acted as man and wife, so far as sleeping together was proof of the fact, at different times; that the sheriff treated them as man and wife, and lodged them in the same cell, with but one bed; that she on one occasion called him 'my dear'-also that, at Sidney, they stopped at a tavern, and acted towards each other as strangers- paid their bills separately, and lodged in separate apartments, and left for different points of destination; that, after the verdict of guilty, said Martha made her affidavit, stating that she was, in truth, the wife of said William, and that, having been treated as the wife of said William by the officers, she supposed that fact was conceded, and did not prepare to prove that she was such, and was taken by surprise; and that she could prove such fact, if allowed to do so, on new trial being granted.

Upon this state of facts, a motion was made for a new trial, in substance, upon the following grounds:

That the jury had been permitted by the Court to disperse, without the consent of prisoner or counsel, during the progress of the trial; that the officer, who took charge of the jury over night, was not sworn not to converse with them, and not to permit others to converse with them; that, when the cause was finally submitted to the jury, they did not retire under the charge of an officer specially sworn to take charge of the jury; that the said Martha was the wife of said William, and should not, therefore, have been convicted; that she was taken by surprise by the conduct of the officers, and was therefore not prepared at the trial to prove her marriage—all of which was overruled by the Court, and a new trial refused.

To this decision of the Court a bill of exceptions was taken, and the following errors assigned :

William and Martha Davis v. The State of Ohio.

IN BANK. First: That, after the jury were sworn and the trial comDec. Term, menced, the jury should not have been permitted to disperse

1846.

and separate during the adjournment of the Court, but should have been placed in the custody of a sworn officer.

Second: That, after the evidence and argument was closed, the jury were not placed in the charge of a sworn officer.

Third: That the offence was joint, and the said Martha could not be legally convicted of committing the offence jointly with her husband.

Fourth: That there was no evidence to rebut the presumption, that the said Martha had committed the offence by the command and under the influence of her husband.

Stanton & Walker, for Plaintiffs in error.

First: It is claimed that the Court erred in not making some order in relation to the manner in which the jury should be kept, and in suffering them to disperse at the adjournment of the Court, during the progress of the trial.

It is admitted, that it is competent for the Court to make any order they may deem necessary, to prevent the jury from being tampered with during the progress of the trial, and before they retire to consider of their verdict.

But it is their duty to exercise the discretion conferred upon them; and if they fail to do it, and turn the jury loose, to exercise their own discretion as to the manner in which they shall conduct themselves, it is error, and the judgment should be reversed. This position is believed to be abundantly sustained by the following authorities: 1 Chitty's Crim. Law, top paging, 513, margin, 629; The King v. Wm. Stone, 6 Term Rep. 531; The People v. Meany, 4 Johns. Rep. 295; 3 Black. 375, note 37; 2 Barn. & Ald. 462; 4 Black. 360, note 21; McKinney v. The State of Illinois, Law Journal, vol. 3, No. 11, 502; Buller's Nisi Prius, 308; 4 State Trials, 222; 4 Hawkins' P. C. 233, chap. 36, sec. 15; 2 Caines' Cases, 305; Foster, 16 and 23; Co. Littleton, 221.

William and Martha Davis v. The State of Ohio.

1816.

"It is a general rule, that there can be no separation of the IN BANK. jury, in a criminal trial, after the evidence has been entered Dec. Term, ' upon, and before a verdict is given." Roscoe's Crim. Ev. 227 Second: The Court erred in sending out the jury to consider of their verdict, without placing them under the care of a sworn officer. The matter is not mended by the fact, that the sheriff conducted the jury to their room, and then left them in charge of one constable, who in turn handed them over to another, but neither of whom was sworn.

It is no part of the official duty of the sheriff, or a constable, to take charge of juries while they are considering their verdict. They derive their power from the Court, and act in obedience to its orders.

The custody and care of juries belongs to the Court; they may exercise their discretion as to the manner in which they shall be kept. This is a judicial act, and the Court cannot delegate the power of exercising this discretion to a ministerial officer, and thereby escape the responsibility that properly belongs to them.

And the Court have no power, in the exercise of this discretion, to place the jury in charge of any body but a sworn officer.

"If they (the jury) cannot agree in a short time by consult'ing in their box, they retire to a convenient place provided for 'them, and the bailiff is sworn to keep them, as follows: You 'shall swear that you will keep this jury, without meat, drink, 'fire or candle; you shall suffer none to speak to them, nor 'shall you speak to them yourself, but only to ask them if they

are agreed, so help you God." 1 Chitty's Crim. Law, 516, margin, 632. In modern times, this oath has been so far altered as to allow the jury necessaries and refreshments; yet no authority can be found for dispensing with it altogether.

"According to the cases of Van Doren v. Walker, 2 Caines' Rep. 273, and Fink v. Hall, 5 Johns. Rep. 437; in that it 'does not appear, by the return, that a constable was sworn to ' attend the jury." Beekman v. Wright, 11 Johns. Rep. 441.