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the animal was called in question, he gave an explanation of such pos-
session, and that such explanation was reasonable, then you are in-
structed that it devolves upon the State to prove such explanation false,

1 Garcia v. State, 26 Tex. 209; v. Exall, i Fost. & F. 922; Reg. v.
Galloway v. State, 41 Tex. 289; McCoy Crowhurst, 1 Carr. & K. 370; Slate v.
V. State, 44 Tex. UKJ; Johusou v. State, Williams, 2 Joues L. (N. C.) 194; Sar-
12 Tex. App. 385; Sitterlee v. State, 13 torious v. State, 24 Miss. 602; Graves
Tex. App. 587; Ross v. State, 16 Tex. v. State, 12 Wis. 591; Hall v. State, 8
App. 554; Perry v. State, 41 Tex. 483; Ind. 4.39; People v. Kelley, 28 Cal. 423;
Miller v. State, 18 Tex. App. 34, 38. Kuickerbocker v. People, 43 N. Y. 177.

2 Perry v. State, 41 Tex. 483, 486; ^ Miller v. State, 18 Tex. App. 34,
Hannah v. State, 1 Tex. App. 579. 3S; Sullivan v. State, 18 Tex. App. 623;
See also, on the f^eneral doctrine, Scluiltz v. State, 20 Tex. App. 308;
Thomp.sou V. State, 43 Tex. 268; Keg. Wiiidhani v. State, 19 Tex. Aj)p. 413.



Tit. YI, Ch. LXIX.] ckutaix otiiku puesumptioxs. 1897

and a failure to do so will entitle the defendant to an acquittal," ^ - - - -
"The court instructs the jury that they are not bound to believe all
the statements made by the defendant in explanation of his possession
of recently stolen property, if you find he was in possession of property
which had been recently stolen ; but you are to weigh the evidence of
the defendant as you weigh all other evidence in the case, and give
credit only to such evidence as commends itself to your judg-
ment."'- "If the jury believe, from the evidence, that the de-
fendant was in possession of the orders of the Townly's or an}- part of
them, as charged in the indictment, within a period of four or five
months after the time they are alleged to have been stolen, and that
they were stolen on or about the time alleged, and the defendant has
failed to show how he came by them, he having it in his power to explain
his possession if it was an honest one, such possession is a circumstance
from which the jury are authorized to raise a presumption, in connection
with other circumstances in the case, to weigh against the defendant." ^

§ 2541. Precedents of Instructions under the English Rule. —
Under the English rule, which ascribes to such a circumstance the
effect of a conclusive presumption of guilt unless rebutted, the follow-
ing instruction has, after much consideration, been approved: " "Where
property has been stolen, and recently thereafter the same property, or
any part thereof, is found in the possession of another, such person is
presumed to be the thief, and if he fails to account for his possession of
such property, in a manner consistent with his innocence, this pre-
sumption becomes conclusive against hind." * In another case in

the same State, an instruction was approved which simply told the jury
that " the recent possession of stolen property, unless satisfactorily ex-
plained, is prima facie evidence of guilt." ^ In like manner, the follow-
ing instruction was approved in Iowa: " It is a rule of law that, when
property has been recently stolen and is shortly thereafter found in the

1 "Wiudham v. State, 19 Tex. App. sumption from the circurastauce of re-
413, \:'12. cent uuexplaiued possessiou.

2 Approved in State v. Grouiug, 33 * State. v. Kelly, 73 Mo. 608; re-
Kau. 21. versing s. c. 9 Mo. App. 512; overrul-

3 Approved in Engleman v. State, iug State v. Sidney, 10 Mo. App. 579.
2 Ind. 92, 96; and again in Hall v. For another instruction of a similar
State, 8 lud. 439, 442. lu the last case, character, where the presumption was
it was ruled that an instruction ought called a " presumption of law," see
not to be so framed as to advise the State v. Hill, <i5 Mo. 85.

jury that they should draw the pre- ^ Slate v. Buttertield, 75 Mo. 301.



1898 CHARGING THE JURY. [2 Tliomi). Tr.,

exclusive possession of a part}', such fact is prima facie evidence of the
guilt of such party so found in possession, of the felonious taking of
said property, unless to the jury such possession is satisfactorily ex-
l)lained. If, therefore, you find from the evidence," etc., the court
proceeding to apply to the facts in evidence the principle thus an-
nounced. ^ In discussing this instruction, the court say: "The law
holds that the presumption in question, unless overcome, will authorize a
conviction. It is a presumption recognized by the law, and may,
therefore, be termed a presumption of law. The term presumption of
fact implies that, from certain facts, the law will raise a presumption.
Either of these terms, presumption of law or presumption of fact, may
be used to express the same thought, for the^^ are identical in mean-
ing." 2 The following instruction, approved in Kansas, would prob-
abl}' be held proper even under the modern rule, since it allows the
jury to infer guilt from the circumstance or not ; but it would be more
in conformity with the modern rule, if it distinctly admonished them
that they were not bound to draw such an inference, but that the cir-
cumstance was mereh' evidence for their consideration, from which thej'
might come to such conclusion, or not, as they should see fit: "The
possession of property, proven to have been recently stolen, is evidence
from which the jury may infer that the person in whose possession such
property is found is guilty of the theft, provided that such possession
is not explained ; and so, when a certain amount of property' is proven
to have been stolen at the same time, and soon thereafter a portion of
such stolen property is found in possession of the defendant, such pos-
session, if unexplained, is evidence from which the jury may infer that
the defendant is guilty of the larceny of the entire amount of the prop-
erty then proven to have been stolen." ^

§ 2542. Instance of such an Instruction ■where the Defense
"WAS AX Alibi. — The following, from a recent case in Nebraska, seems

1 State V. Kelley, 57 la. 045. (where the instruction seems to liave

2 Ibid. 646. Tiie court cite State v. been a perfectly ijood oue, eveu under
Ricliart, 57 la. 245; State r. Hessians, the Texas rule). For instructions
50 la. 135; State v. Taylor, 25 la. 273, applying this rule to the recent, uuex-
275. Itlained posse.s.sion of goods which

^ Approved in State v. Henry, 24 have been burglariously stolen, see
Kan. 460. For instances of instruc- State v. Tilton, 63 la. 118; State v.
tious which have been disapproved, Rivers, 68 la. 616; with which corn-
see Payne v. State, 21 Tex. App. 184; pare State r. Shaffer, 59 Ia.2;i0; State
Gonzales v. State, 18 Tex. App. 44!) v. Golden, 49 la. 49.



Tit. VI, Ch. LXIX.] CERTAIN other presumptions. 1899

to be a good model of an instruction conforming to the modern rule
above stated: "It is a rule of evidence in trials for the larceny of
goods, that the finding of the stolen goods in the exclusive possession
of the accused, very recently after the larceny was committed, is pre-
sumptive evidence that he stole them ; and in this case, if the goods
mentioned in the indictment were stolen, and, shortly after the larceny,
they, or a portion of them, were found in the exclusive possession of
the accused, the presumption arising from such possession is that the
defendant stole them. But the defendant having introduced evidence
to show that he, at the time of the lareenj'' was at another place, and
could not have perpetrated the crime, the burden still rests upon the
prosecution to prove that the defendant did commit said larceny and is
guilty, beyond a reasonable doubt." ^

§ 2543. As to tlie Presumption of Guilt from the Flight of
the Accused. — It is often inaccurately said that the fii2:tit of
the accused creates a presumption of his guilt, and this pre-
sumption is sometimes inadvertently dealt with as though it were
a presumption of hiw. But it belongs to that class of presump-
tions which are generally classified as presumptions of fact. If it
were a presumption of law, the jury would be bound to draw it in
every case of flight, and the court might so instruct them ; where-
as, it is merely a circumstance tending to increase the probability
of the defendant being the guilty person, which, on sound prin-
ciple, is to be weighed by the jury like any other evidentiary
circumstance. In cases where the evidence renders it proper,
the judge is at liberty to give the jury advice touching the nature
of this presumption. The following, approved in a recent case,
will, with some corrections of phraseology, be a good model:
" The flight of a person immediately after the commission of a
crime, or after a crime is committed with which he is charged, is
a circumstance in establishing his guilt, not sufficient of itself to
establish his guilt, but a circumstance which the jury maj^ con-
sider in determining the probabilities for or against him, — the
probability of his guilt or innocence. The weight to which that
circumstance is entitled is a matter for the jury to determine, in
connection with all the facts called out in the case." '-' The fol-

1 McLain v. State, 18 Neb. loi, 158. - I'eoplo v. Forsythe, Co Cal. 102.



1900 CHARGixG THE JURY. [2 Thoiup. Tr.,

lowing, from another recent case, is more concise and perhaps
better: "Evidence has been introduced as to an attempted es-
cape from jail, by the defendant, while in the custody of the
sheriff of this county on this charge. If you find from the
evidence that defendant did thus attempt to escape from custody,
this is a circumstance to be considered by you in connection with
all the other evidence, to aid you in determining the question of
his ouilt or innocence." ^ Often in Missouri, where the Enolish
idea concerning presumptions in criminal cases generally pre-
vails, the following form of instruction upon this subject is
used, — ending, it is perceived, in submitting the fact as a cir-
cumstance to the consideration of the jury : " The court instructs
the jury that flight raises the presumption of guilt, and if you
believe from the evidence that the defendant, after having shot
and killed Miunick, as charged in the indictment, fled the country
and tried to avoid arrest and trial, you may take that fact into
consideration in determining his guilt or innocence." -

1 Approved iu Andersou r. State, G47. A similar iustruction -was given
104 Ind. 467, 472. iu State v. Brooks, 92 Mo. 542, 5oG,

2 Approved in State v. Gee, 85 Mo. aud tJie prisoner was hanged.



Tit. yil, Ch. LXX.] CONDUCT of the jury. 1901



. TITLE VII.

CUSTODY AXD CONDUCT OF THE JUEY.



Chapter LXX. — Of the Conduct of the Jury.
Chapter LXXI. — Of Books and Papers in the Jury

Room.
Chapter LXXII. — Of Improper Methods of Arriving

at the Verdict.
Chapter LXXIII. — Of the Misconduct of Juries as

Ground of New Trial.



CHAPTER LXX.

OF THE CONDUCT OF THE JUEY.

Section

2548. Custody of the Jury Pending the Trial.

2549. Separation of tlie Jury, -nhen Ground for New Trial and when not.

2550. Separation before being Sworn and Charged.

2551. Separation after the Jury have Ketired to Consider of their Verdict.

2552. Returning Sealed Verdicts and then Separating.

2553. Communications between Jurors and Third Persons.

2554. Between Jurors and "Witnesses.

2555. Between Jurors and the Judge.

2556. Between Jurors and Officers of the Court.

2557. Among the Jurors themselves.

2558. By the Jurors to Third Persons.

2559. Between Jurors and the Successful Party.

2560. Tampering with Jurors : Embracery.

2561. Eeading the Newspapers.

2562. Jurors Allowed Refreshments in Modern Trials.

2563. What if Procured without Knowledge of the Court.

2564. Or at the Expense of the Successful Party.



1902



CUSTODY AND CONDUCT OF JURY. [2 Tllollip. Tl".,



Section
2565. View that the Rule does not Extend to Customary Hospitality and

Civility.
256G. Use of Intoxicating Liquors by Jurors,
25(37. Doctrine Restated and Correct Rule Suggested.
25(!8. Receiving Gratuities: Fees of a Juror who is also a Witness.
2509. Bailiff Adniinisteriug Medicine and Calling in Physician.

§ 2548. Custody of the Jury Pcndiiis the Trial. — If the

trial liist more tliau a day it is usual in civil cases, ^ in cases of
misdemeanor,^ and in some jurisdictions in cases of non-capital
felony even,^ for the court to permit the jury to separate for
needed rest and refreshment, and even to retire to their homes
over nio-ht, after admonishing them to hold no communication
with any one touching the case on trial ; * and this the court has
power to do in the exercise of a sound discretion.^ Although
some States have extended this rule to cases of felony,^ even



1 Stancell v. Kenan, 33 Ga. 56;
Downer v. Baxter, 30 Vt. 467, 474;
Brandin v. Grannis, 1 Conn. 402, note;
Wilson V. Abrahams, 1 Hill (N. Y.),
207.

2 Rex V. AVoolf, 1 Chit. R. 401;
Goode V. State, 2 Tex. App. 520; Can-
non V. State, 3 Tex. 32 ; Rex v. Kinnear,
2 Barn. & Aid. 4C2; Bebee v. People, 5
Hill (N. Y.),32.

■3 Evans v. State, 7 Ind. 271; Caw v.
People, 3 Neb. 357, 371; State v.
Horusby, 8 Rob. (La.) 554 ; State v.
Desmond, 5 La. Ann. 399; State v.
Frank, 23 La. Ann. 213; State v.
Evans, 21 La. Ann. 321.

* The record need not show that the
. judge so adrnonished them, but it will
. be presumed that he did his duty.
Evans v. State, 7 Ind. 271 ; Caw v. Peo-
ple, 3 Neb. 357. But the contrary has
been held, even in civil cases, where
the trial was before justices of the
peace. Van Doren v. Walker, 2 Caines
(N. Y.), 373; Beekman v. Wright, 11
Johns. (N. Y.) 442. It has been held



in Illinois (McKinney v. People, 7 111.
540, .553), in Virginia (Bennett v. Com.,
8 Leigh (Va.), 745, 751), and denied in
Indiana (Jones v. State, 2 Blackf.
(Ind.) 475, 479), that the record need
not disclose the fact that the jury were
kept together, or even that they were
placed in charge of a sworn officer.
But see Anderson v. State, 28 Ind. 22,
25. And compare Dias v. State, 7
Blackf. (Ind.) 20. Where the jury do
not retire, it is not necessary that the
record should show that an officer was
sworn to attend them. Fink v. Hall, 8
Johns. (N. Y.) 437; Hatch v. Mann, 9
Wend. (N. Y.) 2<;2; Meyer v. Foster,
16 Wis. 294. Taking the jury to the
country for recreation, when no ground
of new trial: State v. Perry, Busbee
(N. C), 330.

* Cases supra.

6 Berry v. State, 10 Ga. 511; Mc-
Creary v. Com., 29 Pa. St. 323, 327;
State V. WilUamson, 42 Conn. 261;
State V. Gillick. 10 Iowa, 98. Compare
State V. Wart, 51 Iowa, 587.



Tit. VII, Ch. LXX.] CONDUCT of the jury, 1903

where the punishment was death, ^ yet the better opinion,
sanctioned by the prevailing practice, is that, u[)ou such trials,
the jury must, during the recesses of the court, be kept to-
gether in charge of a disinterested ^ officer,^ who is generally



^ State V. Anderson, 2 Bailey
(S. C.)> 565; Bilansky v. State, 3 Minn
427; State v. Babcock, 1 Couu. 401;
People V. Montgomery, 13 Abb. Pr.
(N. s.) 208; Sargent v. State, 11 Ohio,
472; Davis v. State, 15 Ohio, 72, 83;
State V. Dougherty, 1 West. L. J. 271;
State V. Wallahan, Tappau (Oh.), 52;
State V. Engles, 13 Ohio, 490; Parker
V. State, 18 Oh. St. 88; Cantwell v.
State, 18 Oh. St. 477; Thorap. & M.
Jur., § 318, sub-sec. 8. For the
rule in Texas, see Thoinp. & M.
Jur., § 318, sub-sec. 9; Tex. Code
Crim. Proc. 1879, art. 687; Goode
V. State, 2 Tex. App. 520; Wake-
field V. State, 41 Tex. 556; Nelson
V. State, 32 Tex. 71; Jenkins v.
State, 41 Tex. 128; Brown v. State, 38
Tex. 482; Early v. State, 1 Tex. App.
248, 273; Warren v. State, 9 Tex. App.
619,631; Soria v. State, 2 Tex. App,
297; Coxi;. State, 7 Tex. App. 1; Mar-
noch V. State, 7 Tex. App. 269, 272 ;
Gilleland v. State, 44 Tex. 356 ; Davis
V. State, 3 Tex. App. 91, 101 (modifying
Jones V. State, 13 Tex. 168, which was
based upon Hines v. State, 8 Humph.
(Tenn.) 597). The rule in New York
seems to be unsettled. See Thomp.
&M. Jur., § 318, sub-sec. 7; Stephens
V. People, 19 N. Y, 549 (affirming s. c,
4 Park. Cr, (N. Y.) 39G, 495; People
V. Douglass, 4 Cow. (N. Y.) 26; People
V. Kansom, 7 Wend. (N. Y.) 423;
Eastwood V. People, 3 Park. Cr. (N.
Y.) 25; New York Code of Crim.
Proc. 1881, § 414. In Wisconsin, it is
settled that convictions in capital cases
cannot be sustained, where the jury
has been permitted to separate during



the trial, " unless it appears that the
separation of the jurors was not fol-
lowed by improper conduct on theii
part, nor by any circumstances calcu-
lated to exert an improper influence on
the verdict." State v. Dolling, 37
Wis. 396; Rowan v. State, 30 Wis,
129; Keenan v. State, 8 Wis. 132,
Compare Crockett v. State, 52 Wis.
211; s. c. 12 Cent. L. J. 479. For the
rule in Missouri, see Thomp, & M,
Jur., § 318, sub-sec. 6; State v. Bell,
70 Mo, 633; State v. Brannon, 45 Mo,
329; State v. Harlow, 21 Mo. 446; State
V. Igo, 21 Mo. 459; State v. Barton, 19
Mo. 227; State v. Mix, 15 Mo. 153;
Whitney v. State, 8 Mo. 165; 1 Rev.
Stat. Mo. 1879, § 1966. As to the rule
in Illinois, see Thomp. & M. Jur.,
§ 318, sub-sec. 2; Russell ??. People, 44
111. 508; Jumpertz v. People, 21 111.
411; McKinney t'. People, 7 111.540,
553; Adams v. People, 47 111. 381;
Reins v. People, 30 111. 256; Pate v.
People, 8 111. 644. Compare State v.
M'Elmurray, 3 Strobh. L. (S. C.) 33;
State t?. Parrant, 16 Minn. 178, 181;
State V. Wart, 51 la. 587.

2 An officer who has a suit pending,
at the same term of court should not
be selected. State v. Judge, 11 La.
Ann. 79; Harbour v. Scott, 12 La. Ann,
152.

3 Usually the sheriff or his deputy,
though the court may select and swear
a constable for that purpose in a civil
proceeding before a justice of the
peace (Smith v. Williamson, 11 N. J,
L. 313). or may appoint a special officer
where the sheriff is interested and
there is no coroner (Harbour v. Scott,



1904



CUSTODY AXD CONDLCT OF JUIIY. [2 ThoiUp. Tl".,



sworn, ^ in conformity with the formula prescribed byLorclKenyon
in an old case,^ "well and truly to keep the jury, and neither to
speak to them himself, nor to suffer any other person to speak to
them, touching any matter relating to this trial," ^ The importance



12 La. Auu. 152), and the appoiutmeut
of a minor would not be gi-ouud for a
new trial, but he would be an officer
de facto. McCauu v. People, 88 111.
103. Audit has been held no ground
for anew trial, that the judge himself
assumed the personal custody of a
juror, who had separated from his
fellows for a short time during a re-
cess of the court. Phillips v. Com., 19
Graft. (Va.) 485, 535 (citing Barrett
V. State, 1 Wis. 175) .

1 It is error, in cases of felony, to
permit them to retire in charge of an
unsworn officer. But in Tennessee,
where the jury retired unaccompanied
by an officer, it was held not to be suf-
ficient ground for a new trial. Jar-
nagin w. State, 10 Yerg. (Teun.) 520;
Gibbons v. People, 23 111. 518; Mclu-
tyre v. People, 38 111. 514; Lewis v.
People, 44 111. 452 ; McCann v. State,
9 Smed. & M. (Miss.) 465; Hare v.
State, 4 How. (Miss.) 187; Jones v.
State, 2 Blackf. (Ind.) 475, 478; Com.
V. Shields, 2 Bush (Ky.), 81; Brucker
V. State, IG Wis. 333. See 1 Chit. Cr.
L. 628. The rule was applied in a
civil case in Staley v. Barhite, 2
Caines (N. Y.), 221. It was lield in
Texas in 1878 that, although the party
who had charge of the jury during a
capital trial was neither a sworn offi-
cer of the county nor specially sworn
for tlie occasion, but was related to
tlie person for whose murder the ac-
cused was on trial, tliere was no
ground for a new trial, no prejudice
appearing. Baker v. State, 4 Tex. App.
223; citing Slaughter v. State, 24 Tex.
410. The sheriff, l)eing once sworn iu
the particular case, need not be again



sworn for every adjournment or re-
cess of tlie court. Com. v. Shields, 2
Bush (Ky.), 81. Nor is it indispens-
ably necessary that a sworn officer of
the law, as a sheriff (Bennettv. Com.,
8 Leigh (Va.), 745), or a constable
(Davis?). State, 15 Ohio, 72, 83), should
be specially sworn. Unless it affirm-
atively appear that the jui-y left the
court room to consult upon their ver-
dict, i\ will be no ground of error that
it does not appear that an officer was
sworn to attend them. Fink v. Hall,

8 Johns. (N. Y.) 437; Hatch v. Mann,

9 Wend. (N. Y.) 262; Meyer r. Foster,
16 Wis. 294. Compare Smith v. State,

63 Ga. 169. One view is that the
record must affirmatively show, in a
capital case, that the jury were sworn
according to law, and that when the
record undertakes to recite the oath
and recites a different oath from that
prescribed by the statute, a new trial
will be granted. Spain v. State, 64
Tenn. (8 Baxt.) 514; ante, § 108.
It is sufficient that the officer is sworn
to take charge of the jury and return
them from time to time under the
orders of the court, during the con-
tinuance of the trial. It is not neces-
sary that the record should show that
the same officer was sworn anew every
time the jury retii'ed, provided it show
that, whenever they retired, they did
so under the charge, " of their said
sworn officer." Johnson v. State,

64 tenn. (8 Baxt.) 450.

2 Bex r. Stone, 6 T. R. 527.

3 This is the formula prescribed
by statute in Missouri. 1 Rev. Stat.
Mo. 1S79, § 1910. See further as to
the form of the oath, Thomp. & M.



Tit. YII, Ch. LXX.] conduct of the jury.



1905



of this rule in cases of felony, is seen in the fact that a discharge
and consequent dispersion of the jury without imperious neces-
sity operates as an acquittal and prevents another trial before
another jury,^ unless done without the authority of the court ;2
while, as hereafter seen, their separation without oeing dis-
charged from the case, even with the consent of the defendant,^
unless in charge of an officer to prevent communications with
them, may be ground of new trial,* except in civil cases. ^ And
where they are permitted to separate pending the trial, it is usual
to admonish them to hold communication with no one touchinor
the case, and in some jurisdictions this is enjoined by statute;^



Jur., § 326; 1 Bish. Cr. Proc, § 991;
Gude's Crown Prac. 584; 1 Chit. Cr.
L. 632; Starr & Curtis's Kev. Stat.
111. 1887, § 495.

1 Com. V. Cook, 6 Serg. & K. (Pa.)
577; McCorkle v. State, 14 lud. 40.
Compare Hardy's Case (1794) , 24 How.
St. Tr. 414.

2 Williams v. State, 45 Ala. 57;
Wyatt V. State, 1 Blackf. (Ind.) 257.
Compare People v, Reagle, 60 Barb.
(N. Y.) 527, 544; State v. Carrigues,
1 Hayw. (N. C.) 241; Kiulocli's Case,
Foster, 16; Com. v. Cook, 6 Serg. &
R. (Pa.) 577.

3 Browu V. State, 38 Tex. 482 ; Porter
V. State, 1 Tex. App. 394. So, of his
failure to object. State r. Parrant, 16
Miun. 178, 181. In some States the rule
is relaxed, either by statute or judicial
decision, even in cases of felonies, so
that the prisoner's consent to the
separation is a waiver of the irregu-
larity. Evans v. State, 7 Ind. 271;
McCorkle v. State, 14 Ind. 41, per Per-
kins, ,J.; State v. Mix, 15 Mo. 153, 157;
Quinn v. State, 14 Ind. 589; Anderson
V. State, 28 Ind. 22, 25. Compare Peo-
ple V. Kelly, 46 Cal. 357. In others, it
has been held cured by the fact that the
prisoner requested the indulgence (Be-
bee». People, 5 Hill (N. Y.), 32), or ten-



dered his consent without solicitation.
Stephens v. People, 19 N. Y. 549, 563.
In Texas, under a statute (Pasch. Dig.,
art. 3070; Tex. Code Cr. Proc. 1879,
§ 687), the prisoner himself may con-
sent to the separation, but his counsel
cannot. Brown v. State, 38 Tex. 482.
In Illinois, it has been held that the
prisoner's consent may be presumed.
Pate V. People, 8 111. 644. In Georgia,
where a separation of the jury is
known to the defendant in a criminal
trial, but he does not bring the fact to
the attention of the trial court until
after verdict, it is no ground for a new
trial. Carter v. State, 56 Ga. 463.

■* Rex V. Kinnear, 2 Barn. & Aid.
462, 464; Hardy's Case, 24 How. St.
Tr. 414, 418; Wiley v. State, 1 Swan
(Tenn.), 256; Wesley v. State, 11
Humph. (Tenn.) 502; Peifferv. Com.,
15 Pa. St. 468; State v. Populus, 12
La. Ann. 710; People v. Shafer, 1 Utah
Ter. 260; Berry w. State, 10 Ga. 511,
624; State v. Horusby, 32 La. Ann.
1268 (capital cases).

^ Riggins V. Brown, 12 Ga. 272;
Adkins u. Williams, 23 Ga. 222; Stix
V. Pump, 37 Ga. 332; Mcintosh v.
Smith, 2 La. Ann. 756.

« 1 Rev. Stat. Ohio 1880, § 5193.



l-iO



1906



CUSTODY AND CONDUCT OF JURY. [2 Thoilip. Tl'.,



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 83 of 126)