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William and Martha Davis v. The State of Ohio.

Dec

In Bank. This was a civil case, on certiorari, to a Justice's Court, to re

mm, verse a judgment for twenty-five dollars. . 1816.

" It was the duty of the Court to have sent a sworn officer with the jury; and if this duty was neglected, and the fact should appear from a bill of exceptions, the judgment would

be reversed.” McKinney v. The State of Illinois, cited above. The fact does appear from the bill of exceptions in this case.

“The officer, on receiving charge of them, (the jury,) is sworn to conduct them to their room, and not suffer them to separate, or to eat or drink, water only excepted, or to speak

to them unless it be to ask them if they are agreed, or by "order of the Court.” Engles v. The State of Ohio, 13 Ohio Rep. 492..

“ Although, in modern times, the ancient strictness has yielded to a more enlightened reason, yet no rule tending (to insure the impartial administration of justice, and the purity

of jurors, has, in the slightest degree, been abandoned or im

paired.” Sargeant v.: The State of Ohio, 11 Ohio Rep. 414.

The Legislature have recognized the necessity for swearing the officer who has charge of a jury, by providing for the payment of the clerk's fees for adıninistering the oath. Swan's Stat. 395. The law presumes that, in the absence of such an oath, the jury will be tampered with; and it is for that reason, that the oath is required. Can this presumption be rebutted by proof? We hold that it cannot. But if it can, are ex parte affidavits to be taken as conclusive ?.

· We may deny the facts stated in the affidavits, and ask that the witnesses may be sworn “to tell the whole truth.” We demand an opportunity to cross-examine them; we offer evidence to contradict them; we demand compulsory process to compel the attendance of witnesses. It is a mockery of justice to permit a fact of this magnitude to be established by the ex parte testimony of such witnesses as the party may select.

William and Martha Davis v. The State of Ohio.

It is submitted with confidence, that, to dispense with this In Bank. oath, would & tendto defeat “ the impartial administration of Dec. Term,

1846. justice," and endanger “ the purity of jurors."

It has long been settled, that the testimony of a juror is inadmissible to prove misconduct in the jury. This effectually closes the door against the only practicable means that can ever be resorted to, to prove that a verdict has been, in fact, procured through improper influences.

If the door shall now be opened on the other side, for the admission of improper influences, the purity of jurors, and the impartial administration of justice, cannot be presumed.

Third: Martha Davis ought not to have been convicted, because the offence was committed by her jointly with her husband. The record and bill of exceptions show, that they are known by the same name, addressed each other as husband and wife—were treated as husband and wife by the landlord in Port Jefferson — by the officer who arrested them - by the tavernkeeper, where they stayed the night after they were arrested, and by the sheriff and jailor, from the time of their arrest till their trial; that there was no testimony tending to rebut this proof.

“Where, on the trial of a' man and woman, it appeared by the evidence that they addressed each other as husband and " wife, and passed as such, and were so spoken of by the witinesses for the prosecution, it was held sufficient.". Roscoe's Crim. Evidence, 879.

« The law seems to protect the wife in all felonies, committed by her in company with her husband, except murder and manslaughter.” Hale's P. C., chap. 47.

“If a woman commit theft, burglary or other civil offence, against the laws of society, by the coercion of her husband, or even in his company, which the law construes a coercion, she is not guilty of any crime, being considered as acting by compulsion, and not of her own will." 4 Blackstone's Com. 28.

“As the charge against the husband and wife was joint, and

it has not been left to the jury to say whether she received the .goods in the absence of her husband, the conviction of the

William and Martha Davis v. The State of Ohio.

1x Bank. 'wife cannot be supported, though she had been more active Dec. Term, than her husband." The King v. Archer, 2 English Crown 18-16.

Cases, 146.

“ The Court said the indictment could not be supported ! against Susannah Trimmer, as she was charged with having

committed the offence jointly with her husband. Whereupon the Solicitor General (Davis) entered a nolle prosequi.”— Commonwealth v. Trimmer, 1 Mass. Rep. 476..,

“ The general doctrine is, that a feme covert incurs no legal guilt by the commission of civil offences, by the coercion of - her husband, or even in his presence.”. Commonwealth v. Neal, 10 Mass. Rep. 152.

“And if á wife act in company with her husband, in the commission of a felony other than treason or homicide, it is conclusively presumed that she acted under his coercion, and consequently without any guilty intent." Greenleaf's Evidence, sec. 28, page 35.

It is deemed unnecessary to multiply authorities; and it is claimed that the judgment must be reversed, and that Martha Davis must be discharged from custody.

H. Stanbery, (Attorney Goneral,) for the State.

Only three of the causes assigned for error are relied upon by the plaintiffs in error:

First: That the jury were allowed to separate during the progress of the trial.

It seems to me this is not an open question since the case of Sargeant v. The State, 11 Ohio Rep. 472. The Court held in that case, that “in both civil and criminal cases the Court may, in their discretion, during the progress of a trial, permit the jury to disperse for the purpose of obtaining food and rest; but in no case can the jury, after they have retired to consider of their verdict, be permitted to separate and disperse until they have agreed."

William and Martha Davis v. The State of Ohio.

1846.

Second: That the Court erred in suffering the jury to in Bank. retire to consider of their verdict, without placing them under Dec. Term, the care of a sworn officer.

There is no pretence of any misconduct on the part of the jury — of any separation, or of any access to them from without. On the contrary, it appears by affidavits made part of the transcript, that they were kept in their room up to the time of their agreement, and were then immediately conducted into Court and delivered their verdict.

As to the objection that no special oath was administered to the sheriff in relation to the custody of this jury, I am not aware of any practice of swearing a sheriff in such cases. In some circuits it is usual to administer such an oath to the constable in attendance upon the court. This oath is in the old form of the English practice. We have no statutory provision which requires it. At the best it is but a mere form, as is said by this Court in The State v. Engles, 13 Ohio Rep. 492.

Third: The remaining assignment of error, is, that the Court erred in passing a judgment of conviction against the said Martha Davis, who was proven to be in company with her husband at the time of the commission of the offence.

The only answer that need be given to this assignment, is, that it assumes a fact not warranted by the transcript. There is no proof that Martha Davis was the wife of William Davis. The testimony relied upon by the counsel for plaintiffs in error to establish the marriage, is thus summed up by him : " In the • first place they have the same name — address each other as

husband and wife,” (videlicet, she once called him my · dear,')—“ were treated as husband and wife by the landlord in • Port Jefferson, by the officer who arrested them, and the

tavernkeeper where they staid the night after the arrest, and by the sheriff from the time of their commitment until their trial.

But if such testimony even tended to establish the fact of marriage, the supposed wife had all the benefit of it. No part of it was excluded by the Court. It seems it did not satisfy the jury.

William and Martha Davis 4. The State of Ohio,

In Bank Dec. Term,

1846.

Wm. Lawrence, upon the same side.

sam

First: It is not error for the jury to disperse by permission of the Court during the progress of trial when the Court adjourns. Sargeant v. The State, 11 Ohio Rep. 472 ; The State v. Engles, 13 Ohio Rep. 192; Sutliff et al. v. Gilbert, 8 Ohio Rep. 405, and 3 Ohio Rep. 53; People v. Douglass, 4 Cowen, 26; Clark y. Coe, 1 Pa. Rep. 278; Crane v. Sayer, 1 Halstead, 110 ; Burrill v. Phillips, 1 Gall. C. C. Rep. 360; Shepherd v. Bayler, 2 Southard, 827; 1 Cowen's Rep. 232, 238 in note; ex parte Hill, 3 Çowen, 355; Winslow v. Draper, 8 Pick. 170 ; The King v. Wolf et al., 1 Chit. Rep. 401 ; Dana v. Tricker, 4 Johns. Rep. 487; Harrison v. Rowan, 4 Wash. C. C. Rep. 32; 1 Chit. Cr. Law, 629; 2 B. & A. 462; 1 Chit. Rep. 401; S. C. Smithv. Thompson, 1 Cowen, 221; Douglass v. Tousey, 2 Wend. 352. The refusal to grant a new trial is in the discretion of the Court below, but is not examinable on error. 2. Peter's Dig. 549, citing U. States v. Gillies, Pet. C. C, Rep. 159. The case of McKinney v. Ilinois, Law Jour. vol. 3, No. 11, was decided ander a statute of Illinois. .

Second: The judgment will not be reversed because the constables were not specially sworn. The authorities cited show that, without proof of misconduct on the part of the jury, their verdict will not be set aside, even where they disperse after having retired to consider of their verdict, (as is said in a case referred to above,) - even“in a capital case, contrary to the directions of the Court.” If such separation of the jury will not, per se, set aside their verdict, the fact that a constable had charge of the jury without being specially sworn, will not avoid a verdict without proof of misconduct. No statute requires them to be sworn ; such is not the practice in Ohio; but our law (Swan's Stat. 39) recognizes them as officers of court. Besides, the record shows that the jury were “in the custody of the sheriff,” and he is the executive officer of the court, and

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