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form. them a church book which had been

3 State V. Hopper, 71 Mo. 425. given to them in evidence before at
■* Gandolfo v. State, 11 Ohio St. the bar, and they found for the plaint-

114, 118. iff. This, it was held (one of the four

5 People V. Gaffney, 14 Abb. Pr. judges dissenting), ought not to avoid

(n. s.) (N. Y.) 30. Compare Wilson the verdict. But the distinction is vital

V. People, 4 Park. Cr. (N. Y.) (Jl'J, l)etween books or other documents

632. offered and admitted in evidence,

8 State V. Smith, G R. I. 33; People and law books which the jury desire

V. Ilartung, 4 Park. Cr. (N. Y.) 256; to consult to inform themselves of the

Newkirk r. State, 27 Ind. 3; Com. v. law.

Jenkins, Thach. Crim. Cases, 118, 228, ' Post, § 2618.



Tit. VJI, Ch. LXXL] books, etc., ix jury koom. 1953

of jurors lire not received to impeach their verdict; they are
not allowed to depose to the fact that they read such books,
though they will be allowed to depose to the contrary.^

§ 2587. Books of Science. — It has already been pointed out ^
that counsel are not in general allowed to read books of science
to the jury, because this would enable them to get before the jury
the testimony of expert witnesses, who are not under oath and
not subject to cross-examination. The same rule will operate to
exclude looks of science from the jur}^ room; and it has been
held no error to refuse to allow such a book to be taken out by
the jury, even where it has been used in evidence.-^

§ 2588. Maps — Dictionaries — Directories. — Maps, direc-
tories, etc., which have not been offered in evidence may be used
in argument for the mere purpose of illustration ; * but it is a
different thing to allow them to be taken out by the jmy . Thus,
in an action to recover a penalty for obstructing the highway, the
fact that the jury, without leave of court, procured and used, dur-
ing their deliberations, a map, has been held such an irregularity
as to require the granting of a new trial, unless it is shown that
the map contiiined nothing which could have influenced the ver-
dict, and the burden of showing this rests upon the successful
party .^ But this rule does not apply to the use by the jury of a
dictionary for the purpose of ascertaining the meaning of a word
employed by them in a special verdict;^ and where, in the trial
of a criminal case, the jurors procured and used in their room
several directories of the city of New York, and, before they had
delivered their verdict, this fact became known to the court, and
the court admonished them to banish from their minds any in-
formation thus obtained, it was held not to afford sufficient ground
for a new trial.^



1 See Dakota Ter. v. Taylor, 1 •< Ante, § 992.

Dak. 479; People v. Williams, 24 Cal. ^ State v. Hartmanu, 46 Wis. 248.

31. 6 Wright V. Clark, 50 Vt. 130.

' Ante, § 996, et seq. " Uuited States v. Horn, 5 Blatchf.

^ State V. Gillick, 10 Iowa, 98. (U. S.) 105.

12.^



1954 CUSTODY AND CONDUCT OF JURY. [2 Thomp. Tl'.,

§ 2589. Rule where the Paper has been Improperly
Handed to the Jury. — If papers Avhich the jury are not entitled
to take out with them are handed to them by or at the suggestion
of counsel for the unsuccessful party, the circumstance affords no
ground of new trial, since he cannot complain of his own wrong. ^
But, on grounds of public policy, elsewhere explained, ^ if
the paper is designedly delivered to the jury by tiie successful
party or his counsel, without the consent of the opposing party,
the verdict will be set aside as a punishment, without reference
to the effect which the paper may have had on the minds of the
jurors.'^ Even in criminal cases, where the prosecutor sc mis-
demeans himself, the verdict will be set aside, not as a punish-
ment to him, but lest, by sanctioning such practices, public con-
fidence in jury trials should be destroyed.'' But this rule cannot
be applied where the character of the paper does not appear,
since it cannot be known that it was a paper which the jurors
ought not to take out.^

§ 2590. What if the Paper was not in Fact Read by the
Jury. — If the paper was taken out by mistake, and not by the
fraud or design of the prevailing party, or his counsel, and if it
was not in fact read by the jury, then there is no occasion to
grant a new trial ; since no harm has been done to the party
against whom the verdict was rendered, and the other party has

1 Alcott V. Boston Steam Flour Mill brought iuto court a great book of dep-
Co., 11 Cush. (Mass.) 91. ositious, taken in chancery, but only

2 Ante, § 2560. some of them are read to the jury in
^ Sheaff V. Gray, 2 Yeates (Pa.), evidence, after the jury depart from

273; Foster V. McO'Bleuis, 18 Mo. 88, the bar, a solicitor of one party de-

91; Page v. Wheeler, 5 N. H. 91, 92; livers this book of depositions to tlie

Ball V. Carley, 3 Ind. 577, per Roache, jury, who carry it with them, and

J.; Jessup V. Eldridge, 1 N. J. L. 401; there read only those which were read

; Heffron v. Gallupe, 55 Me. 503; Killeu in court, yet this shall quash the ver-

I'.Sistrunk, 7 Ga. 281, 294; Lausdale diet ;. because tiiey ought not be put iu

V. Brown, 4 Wash. C. C. (U. S.) 148, remembrance, after they are gone

157. Thus in 21 Viner's Abridg- from the bar, of any evidence given

ment, 450 (title Trial, G. g. 9 pi. 19), it before iu court."

is said to have been decided iu Pratt's ■* State v. Hascall, G X. H- 352, 3*53.

Case (21 .Jac. I.), that "if there be ^ Wright u. Rogers, 2 N. J. L. 547.



Tit. VII, Ch. LXXI.] BOOKS, etc., in .jury room. IDo.j

done no wrong for which he is to be punished.^ And the rule is
the same where it is made to appear that the only jurors who
read the objectionable paper had already agreed to return the
verdict which was rendered.^ As the affidavits of jurors are sren-
erally admissible to sustain their verdicts,^ it may be shown by
such evidence that the paper was not in fact read by any of the
jury.* But, as the affidavits of jurors are not admissible to im-
peach their verdicts,'^ the court will not hear an a:ffidavit to the
effect that such a paper has been read by the jury.^ There are
also doubtful holdings to the effect that a new trial will not be
granted where it is made to appear, by the affidavits of the jur-
ors, that the paper did not affect their verdict,^ as where such
affidavits showed that the paper was not read until the jurors had
made up their minds. ^ But the better view is, that affidavits of
jurors can only be received in support of verdicts where they
disclose facts, and not where they disclose the mental processes
of the jurors ; ^ and, for stronger reasons, that such affidavits will
not be heard, where the paper was got before the jurors in pur-
suance of a design to tamper with them in the interests of the
successful party. ^° Some courts presume that the objectionable
paper was read by the jurors, and grant new trials in the absence
of evidence overcoming this presumption ; ^^ others refuse new



1 Hackley v. Hastie, 3 Johns. (N.
y.) 252; Hicks v. Drury, 5 Pick.
(Mass.) 296; State w. Tindall, 10 Rich.
L. (S. C.) 212; Wilds v. Bogau, 57
Ind. 453, 456.

2 Abel V. Kennedy, 3 G. Greene
(la.), 47; Morris v. Howe, 36 la.
490.

3 Post, § 2623.

4 Hackley u. Hastie, 3 Johns. (N.Y.)
252.

5 Post, § 2618.

« State V. Tindall, 10 Kich. L.
(S. C.) 212.

' Ball V. Carley, 3 Ind. 577.

^ Morris v, Howe, 36 Iowa, 490.

9 Post, § 2618. Page v. Wheeler, 5
N. H. 91,93; Whitney v. Whitman, 5



Mass. 405. "Where a paper, which
is capable of influencing the jury on
the side of the prevailing party goes
to the jury by accident, and is read
by them, the verdict will be set aside,
although the jury may think thsy were
not influenced by such paper, it being
impossible for them to say what effect
it may have had upon their minds.
If it was not read, it was the same
thing as though it had not been de-
livered. Lumpkin, J., in Killen v.
Sistruuk, 7 Ga. 294.

^0 Foster v. McO'Blenis, 18 Mo.
88, 91 ; Coster v. Merest, 3 Brod. &
Bing. 272; ante, § 2560.

" Bronson v. Metcalf, 1 Disney
(Oh.), 21; O'Brien v. Merchants' Fire



1956 CUSTODY AN'D coxDUCT OF JURY. [2 Thomp, Tr.>

trials except upon affirmative proof that the paper was in fact
read by them. It has been so held in civil cases with reference
to depositions which have been used as evidence in the cause, ^
and the rule has been extended to documentary evidence,^ to
Avrittcn instructions which have been asked for and refused,^ to
depositions, parts of which had been excluded,* and even to the
case of newspapers containing prejudicial articles in criminal
trials.*

§ 2591. Duty of Counsel to Object at the Time. — If coun-
sel for the party complaining sees that a certain paper is about to
be sent to the jury, and docs not object at the time, or in a
proper manner, it will be no ground for a new trial. ^ It must
appear that the counsel for the party complaining objected
thereto, or that he had not an opportunity to object, or other-
wise that his rights were prejudiced thereby.^ And where the
attention of counsel is called severally to papers which it is in-
tended to send out to the jury, with the inquiry whether he
makes any objection to their being thus sent out, and he
makes no other reply than that he objects to all of them, the
fact that an improper paper goes out with the others, is a cir-
cumstance of which he cannot subsequently complain.^ It is not
enouo-h for counsel to show in support of a motion for a new

Ins. Co., C, .Tones & Sp. (X. Y.) 482; v. Zeigler, 10 Phila. (I'a ) fill ; Shields

Durfee I'. Eveland, 8 Barb. 40; Clark v. Guffey, 9 Iowa, 322; Laugworthy

V. Wliitaker, 18 Conn. 54.3, oi'J. v. Myers, 4 Iowa, 18.

1 Sliielcls u. Guffey, 9 Iowa, 322. ' Turner v. Kellcy, 10 Iowa, 573;

2 Bersch v. State, 13 Ind. 434. Shields v. Guffey, 9 Iowa, 322.

3 Goode V. Linecum, 1 How. « Kent v. Tyson, 20 N. H. 121, 127.
(Miss.) 281. This rule Is in conformity with the

4 Foster v. McO'Blenis, 18 Mo. 83. principle that a general objection to
* United States v. McKee, 91 U. S. the instructions which the court has

442. given to the jury goes for naught, if

'• "Watson V. Walker, 23 N. H. 472, any one of them is good. Johnston v.

497; Little Schuylkill Nav. Co. v. Jones, 1 Black (U. S.), 209; Rogers t>.

Kiciiards, 57 Pa. St. 142, 148; Greff v. Tiie Marshall, 1 "Wall. (U. S.) «45, 654;

Bliike, 1(5 Iowa, 222; Davenport v. Harvey v. Tyler, 2 Wall. (U. S.) 328;

Cuinniings, 15Iowa,219; Littlelield v. Hunt r. Maybee, 7 N. Y. 273; Decker

Beaniis, 5 Bob. (La.) 145; McDonald v. Mathews, 12 N. Y. 313.
r. Hodge, ullayw. (Teun.)85; Shomo



Tit. VII, Ch. LXXL] books, etc., ix jury koom. 1957

trial, that a ])articular paper was sent to the jury by the adverse
party without his knowledge. It is his duty to ascertain what
/)ai)crs are sent to the jury before they leave the court; and no
motion for a new trial should be allowed merely because this
^luty has been neglected. It should appear that the counsel
used due care thai none but proper papers were passed to the
jury, and that the paper in question was nevertheless sent to the
jury by some mistake, or through some trick or artifice of the
opposite counsel.^ At the same time it has been reasoned that
it is not the duty of one counsel in a case to watch the opposite
counsel to see that he does not send any improper papers to the
jury.^ Where the paper which the jury took was a deposition
which had been offered in evidence by the counsel for the party
complaining, there was, of course, no ground for a new trial ; ^ and
if a paper which is peculiarly the property of one of the counsel,
such as his notes of the testimony, gets to the jury, there is a
presumption that he gave it to them intentionally.*

§ 2592. What if the Court Instructs the Jury to Disregard
the Paper. — If the paper has been offered in evidence and
afterwards withdrawn by an instruction,^ under a principle of
evidence elsewhere stated ; ^ or if a portion of it is evidence and
the rest not, and the court has carefully instructed the jury that
none but the particular portion is evidence ; ^ or if, as soon as it
is discovered that a paper not in evidence has been sent accident-
ally to the jury room, and the court instructs them to disregard
it,^ — the circumstance will ordinarily not be regarded as sufficient
ground for a new trial ; though in a capital case it was held error
to allow the jurors to take to their room for any purpose a record
containino- the evidence given before the committins; magistrate,

1 Mayuard V. Fellows, 43 N. H. 255, * Durfee v. Evelaud, 8 Barb. (N.
259. Y.) iC.

2 Flanders v. Davis, 19 N. H. 139, = Warden v. Warden, 22 Vt. 5G3.
U9. In this case the duty of counsel « Ante, §§ 723, 235-t.

with reference to this matter is dis- ' Riggins v. Browne, 12 Ga. 271,

cussed. 277. See also Foster v. McO'Blenis,

^Davenport v. Cummins, 15 Iowa, 18 Mo. 88, 91.

219. 8 State v. Bradley, 6 La. Ann. 560.



1958 CUSTODY AND CONDUCT OF JURY. [2 TLiom[). Tr.,

not offered in evidence upon the trial, though the court instructed
them that thev must not read it.i



§ 2593. Maimer of Presenting such Irregularities for Re-
view. — If the taking out of the objectionable paper is discov-
ered at the time, the attention of the court must be called to it
with a request to "svithhold it from the jury; and if this is de-
nied an exception must be taken. Moreover, the bill of exce])-
tions must show the character of the paper, in order that the
reviewing court may see whether or not it was of a nature to
prejudice the excepting party /^ Where this is not done, or
where the irregularity is not discovered in time to do it, there is
still another remedy, by a motion for new trial in the court be-
low.^ If the irregularity was noticed at the time, was objected
to, the objection disregarded and an exception saved, — then,
according to the practice in Missouri, and in several other States,
the objection must be renewed in distinct terms in a motion for
a new trial, or it will be waived, and cannot be made the subject
of appellate review.* Where, as in New York, it is a matter of
discretion with the trial court, whether to send out papers with
the jury or not, an objection grounded upon the taking out of
papers by the jury is not the subject of exception, but it involves
an inquiry of fact which can only be made upon a motion sup-
ported and opposed by affidavits.^ Where the bill of exceptions
recited that, " the court, against the objection of defendants, al-
lowed the account for the goods mentioned in the third count in
the complaint, as made out by the plaintiffs, to go to the jury,
and the defendants excepted," and the account was clearly in-
admissible as evidence, the court considered the language as
meaning, not that the account was allowed to go to the jury as

1 Atkius V. State, 16 Ark. 568, 591. 3 gge Hopkiusou v. Steel, 12 Vt.

2 Foster v. McO'Blenis, 18 Mo. 88. 582; -AVardeu v. Warden, 22 Vt. 563.
Ordinarily it must be transcribed in * Post, § 2712.

the bill. Ott V. Oyer, 106 Pa. St. 7, ^ Rowland r. Willetts, 5 Saudf

19; Riddle.sburg Coal Co. v. Rogers, (N. Y.) 219; Ilackley v. Ilastie, 3
C5Pa. St. 416. Johns. (N. Y.) 252.



Tit. VII, Ch. LXXI.] BOOKS, ETC., in jury room. 1959

evidence, but that they were allowed to take the papers with
them to their room on retiringr.^



§ 2594. Recalling the Jury and Delivering Papers to
them. — Subject to certain limitations, which it is unnecessary
to state here, the judge may, of his own motion, recall the jury
and deliver additional instructions to them.- For the same rea-
son, if, by accident, the jury have omitted to take with them
papers which they ought to consider in their room, the judge
may, in his discretion, recall them and give them such papers.'^
And although private communications between the judge and
jury are not tolerated by the law, and are generally ground for
a new trial,* yet no reason is perceived why the judge might not,
with propriety, send such papers to the jury room by an officer.

§ 2595. Rules under Particular American Statutes: in
Civil Cases. — In several of the States the subject of this chap-
ter is regulated by statute. Thus, in Alabama, in civil cases,
the jury, on retiring for deliberation, may take with them " all
instruments of evidence and depositions read to the jury;"® in
California,^ and Nevada,^ " all papers which have been received
as evidence in the cause, except depositions, or copies of such
papers as ought not, in the opinion of the court, to be taken
from the person having them in possession; " also " note;3 of
the testimony or other proceedings on trial, taken by themselves
or any of them, but none taken by any other person; " in Colo-
rado, " all papers, except depositions, accounts, or account
books, which have been received in the case, or copies of such
papers as ought not, in the opinion of the court, to be taken
from the person having them in possession; " also " notes of
the testimony or other proceedings on the trial taken by them-
selves, or any of them, but none taken by any other person; " ^

1 New York &c. Contracting Co. v. = Ala. Code of 1886", § 2757.
Meyer, 51 Ala. 32,5. « Cal. Code Civil Proc, § G12;

2 Ante, § 23(33. Deeriug's Codes, Vol. 3.

3 Flanders v. Colby, 28 N. H. 34, 39. ' Comp. Laws Nev. 1873, § 1230.

* Ante, § 2555. * Colo. Code Civil Proc. 1887, § 191-



1960 CUSTODY AXD CONDUCT OF JURY. [2 Thonio. Tr.,

in Delaware, "papers read in evidence to the jury, although not
under seal, except depositions; ^ in Illinois, instructions which
have been given to the jury in writing; ^ also "papers read in
evidence other than depositions; " "^ in Iowa, " all books of ac-
counts, and all papers which have been received as evidence in
the cause, except depositions, wdiich shall not be so taken, unless
all the testimony is in writing, and none of the same has been
ordered to be struck out ; "^ in Minnesota, " all papers, except
depositions, which have been received as evidence in the cause,
or copies of such parts of public records or private documents
given in evidence, as ought not, in the opinion of the court, to
be taken from the person having them in possession; " also
" notes of the testimony or other proceedings on the trial, taken
by themselves, or any of them, but none taken by any other
person; "^ in Xew Jersey, " papers read in evidence, though
not under seal; " ^ in Oregon, " the pleadings in the cause, and
all papers which have been received as evidence on the trial, ex-
cept depositions, or copies of such parts of public records, or
private documents given in evidence, as ought not, in the opinion
of the court, to be taken from the person having them in posses-
sion; " also "notes of the testimony or other proceedings on
the trial taken by themselves, or any of them, but none taken
by any other person;"^ and in Texas, "the charges and in-
structions in the cause, the pleadings and any written evidence,
except the depositions of witnesses ; but when part only of a
paper has been read in evidence, the jury shall not take the same
with them, unless the part so read to them is detached from that
which was excluded."^ In Maine, there is this provision: " If
either party * * * purposely introduce among the papers
in the case which are delivered to the jury wdien they retire with
the cause, any papers which have any connection with it, but Tver©

1 Del. Rev. Code 1874, p. 649, § 2C. * Minn. Stats. 1878, ch. 6fi, § 231.

2 2 Starr & C. 111. Stat. 1885, p. « N. J. Kev. 1877, p. 876, § 182.
1817, § 55. M Hill's Laws, Orfi., 1887, § 204.

9 Ibid., § 50. 8 I sayle's Stats- Vey. 1888, art

4 Rev. Code, Iowa, 1887, § 2797. 1303.
See Peterson v. Haugen, 34 Iowa, 395.



Tit. VII, Ch. LXXI.] BOOKS, etc., ix .tury koom. 19b*l

not offered in evidence, the court, on motion of the adverse
party, may set aside the verdict and order a new trial." ^

§ 250G. [Continiicd.] In Criminal Cases. — In Arkansas,
in criminal cases, the jury, on retiring for deliberation, may take
with them " all papers which have been received as evidence in
the cause ; ^ in California, " all papers, except depositions, which
have been received as evidence in the cause, or copies of such
public records or private documents, given in evidence^ as ought
not, in the opinion of the court, to be taken from the person
having them in possession ; ' ' also " the written instructions given,
and notes of the testimony, or other proceedings on the trial,
taken by themselves, or any of them, but none taken by any
other person ; " ^ in Iowa, " all papers which have been received
as ev.idence in the case, except depositions, and copies of such
parts of public records or private documents as ought not, in the
opinion of the court, to be taken from the person having them in
possession ;" * also " notes of the testimony or other proceedings
on the trial, taken by themselves, or any of them, but none taken
by any other person;"^ in Kentucky, "all papers and other
things which have been received as evidence in the cause; " ® in
Minnesota, " all papers which have been received as evidence in
the cause, or copies of such parts of public records or private
documents, given in evidence, as ought not, in the opinion of the
court, to be taken from the person having them in possession ; "
also " notes of the testimony, or other proceedings on the trial,
taken by themselves or any of them, but none taken by any other
person;"^ in Nevada, "all papers, except depositions, which
have been received as evidence in the case, or copies of such parts
of public records or private documents given in evidence, as ought
not, in the opinion of the court, to be taken from the person
having them in possession ; and also the instructions of the

1 Rev. Stats. Me. 1883, ch. 82, § 90. * Rev. Code Iowa 188G, § U52.

2 Ark. Dig. Stats. 1874, § 1942. e j^d^ § 4453.

8 Cal. Penal Code, §1137; Deeriug's « Bullitt's Ky. Crim. Code, § 248.

Codes, vol. 4. ' Miuu. Stats. 1874, ch. 114, § 15.



1962 CUSTODY AND coxDUCT OF JURY. [2 Thomp. Tr.,

court; " ^ also " notes of the testimony or other proceedings on
the trial, taken by themselves, or any of them, but none taken
})y any other person; "^ in New York, "any paper or article
which has been received as evidence in the cause, but only upon
I lie consent of the defendant and the counsel for the people; " ^
also " notes of the testimony or other proceedings on the trial,
taken by themselves, or any of them, but none taken by any other
person; " * in Oregon, the same as in civil cases; ^ in Texas,
" the charges given by the court, after the same have been tiled;
but they shall not be permitted to take with them any charge or
portion of a charge that has been asked of the court and Avhich
the court has refused to give; "^ also " all the original papers
in the cause, and any papers used as evidence."^

§ 2597. View that it is Discretionary with Trial Court. — In

some jurisdictions, the whole subject of sending out with the jury
papers which have been received in evidence, is remitted to the
sound discretion of the trial court. ^ Analogous to this view is
another, which is applied in cases where a paper gets into the jury
room by mistake which ought not to go there. In such a case,
it has been held, on exceptions, that the complaining party is
not entitled to a new trial as a matter of right, but that the grant-
ing or refusins: of it rests within the discretion of the trial court. ^

1 Conip. L. Nev. 1873, § 2017. Sliappner v. Second Ave. R. Co., 5.5

' Ibid., § 2018. Barb, (X. Y.) •i',)7 ; Sanderson v. Boweu,

3 X. Y. Code Crim. Proc. (Laws 4 Thomp. & C. (N. Y.) 675; Little

1881, ch. 442), and 4 R. S. 1882, § 425. ScluiTlkill Nav. Co. v. Richards, 57 Pa.

•» Ibid., § 42(1; ante, § 2595. St. 142, 148; O'Hara v. Richardson, 4tj

s Gen. Laws Ore. 1887, § 1356. Pa. St. 385, 389; Spence v. Spence, 4

See the preceding section. Watts (Pa.), 165; Hamilton v. Glenn,

6 Texas Code Crim. Proc. 1879, 1 Pa. St. 340; Ilairgrover. Milliugtou,

art. 684. 8 Kan. 480, 485; Thayer v. Van Vleet,

''Ibid., art. 693. See Heard v. 5 Johns. (N. 1\) 111; Neil r. Abel, 24

State, 9 Tex. App. 1. AVeud. (N. Y.) 185; Ott v. Oyer, lOG

8 Howlaud V. AVilletts, 9 N. Y. 170; I'a". St. 7, 19.

Porter I'. Mount, 45 Barb. (X. Y.) 422; " Clapp v. Clapp, 137 Mass. 183.



Tit. VII, Ch. LXXII.] iMPKOPEit methods: verdict.



19G3



CHAPTER LXXIL



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 89 of 126)