The question has arisen, whether the party must, in order not to waive the bias of jurors, challenge them. The prevailing rule seems to be that, although an omission to challenge a juror before trial is, in general, a waiver of the objection to him, yet, if the party at the time did not know that there was ground for challenge, a new trial may be granted.1 But he must prove that he was ignorant of the disqualification at the trial, otherwise knowledge and waiver will be presumed.2

(e) Tampering with the Jury.-The courts universally deprecate everything that looks like improper interference with the just and upright discharge of the duties of jurors, and where such interference comes from the accused before the trial, a new jury will be empanneled.3

The interference with the jury by a stranger is not looked upon as inherently fatal, but is rather judged of by the influence which it may have had upon the final result. It may be stated as a general rule that where such interference is unattended with corruption, or the jury has not been prompted by a party, and it does not appear that any injustice has thereby been done, the verdict will not be disturbed.4

Where, after a conviction of perjury, it appeared that certain · papers calculated to make an unfavorable impression upon the jury were exhibited and read by the prosecution at several public places, during the week of the trial and just before it, in the presence of several persons, and that some of the jurors boarded at those places, a new trial was granted.5

The tampering with the jury by the officer having them in charge would of course be ground for a new trial. The jury should not examine witnesses after they have been sworn and retired; nor should a juror influence his fellows by private infor

1.

Gra. & Wat. on New Trials, vol. 2, pp. 470, 471.

• Id., 474, et seq.; 13 Sme. & Marsh, 286; 2 Blakf., 114; 6 Mo., 426.

1 Arch. Cr. Pr., 178, note.

Id.; 6 Leigh, 615, 7 Watts & Serg., 415; 11 Hump., 169; 8 Id., 602; Graham & Waterman on New Trials, vol. 2, 309, et seq.

State v. Hascall, 6 N. H., 352.

• Nelms v. State, 13 Sm. & Mar., 500; 2 Swan, 378. Gra. & Wat., vol. 2, p. 342, et seq.

mation possessed by him;1 nor should the jury entertain written evidence that was not introduced in the trial.2

(f) Misconduct of the Jury.-The law appears to be well settled that if a jury take refreshments, before they are agreed, at the charge of the party for whom they find a verdict, it shall be set aside; but it must be shown that the refreshments were at the charge of the prosecution, or a verdict against the prisoner will not be disturbed on this ground.3

The rule has been laid down, that however improper the conduct of a juror may have been, yet if it does not appear that it was occasioned by the prevailing party, or any one in his behalf, if it do not indicate any improper bias upon the juror's mind, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside.4

The drinking of spirituous liquors by jurors, even in small quantities, was formerly deemed ground for a new trial, without inquiry as to whether there had been any abuse in the particular instance. But it was afterwards held, that misconduct of this kind, on the part of the jury, ought not in itself to overturn the verdict unless there be some reason to suspect that the irregu larity may have had an influence on the final result."

The affidavits of the jurors themselves, cannot be received to explain the grounds of their verdict, or to show that they intended something different from what they found, or to impeach their verdict, or to show impropriety or misconduct upon their part.7

But, it is said, they may, to show mistake made by them in making up their verdict, where the mistake arises from circum

4

1 6 Humph., 275; 4 Yerg., 111; 1 Swan, 61.

16 Ark., 568; 10 Rich., 212.

Peo. v. Olcott, 2 John. Cases, 301; 3 Murphy, 487; 12 Pick., 496.' Stephens v. Peo., 4 Park., 396; 8 Abb., 132; 1 Cow., 221; 7 Id., 478; Graham & Waterman on New Trials, vol. 2, pp. 593, 594; Hardenburgh v. Crary, 15 How., 307; 2 Cow., 589; 5 Id., 283; 1 Hill, 207; 15 How., 307. Peo. v. Douglass, 4 Cow., 26; Brant v. Fowler, 7 Cow. 562.

• Wilson v. Abrahams, 1 Hill, 207. But see Brant v. Fowler, 7 Cow., 562. 'Jackson v. Dickenson, 15 John., 309; Taylor v. Everett, 2 How. Pr., 23; 9 Id., 7; 4 Park. Cr. R., 396-619; 12 How., 428; 4 John., 487; 3 Cai., 56; 5 367.

Den.,

stances passing at the trial, which are equivalent to a misdirection of the judge.1

But, although the affidavits of the jurors cannot be received to impeach the verdict for impropriety on the part of any of the jury, they may be for the purpose of showing the improper conduct of the successful party in approaching them on the subject pending the trial; and, also, to prove improper conduct of the officer having the jury in charge.3

The affidavits of jurors that the constable, at. the request of a juror, handed to that juror a paper, showing the punishments for the different degrees of crime, are not admissable to impeach the verdict; they go to show an act on the part of their own body, and are, therefore, within the rule excluding jurors' affidavits.*

Although the affidavits of the jurors cannot be received to impeach their verdict, yet, on a motion to set aside a verdict for misbehavior of the jury, the affidavits of the jurors are admissable to sustain the verdict and disprove the charges.

(g) Verdict Against Evidence.-It is difficult to lay down any precise rule by which courts, in all cases, are to be governed in applications for new trials, for verdicts against evidence. The discretion of the court ought to be exercised, so as to subserve the great end of all trials, a fair and impartial administration of justice. Each case must, in a measure, stand on its own proper ground. While on the one hand, courts ought not to interfere arbitrarily, or in doubtful cases, with the appropriate province of the jury, on questions which the Constitution and the laws have placed peculiarly under their jurisdiction; they should, on the other, exercise the power which the same authority has conferred on them, when the substantial ends of justice require it.

It is the legal duty of courts to see that the issues of fact in their courts are fully and fairly tried, and if the verdict, or the finding of facts is so clearly, without or against evidence, as to

Reynolds v. Champlain Tr. Co., 9 How., 7.

* Peo. v. Carnel, 1 Park., 256; Francis' Case, 1 City H. Rec., 121. Vide 8 Abb., 137.

Peo. v. Wilson, 8 Abb., 137.

⚫ Dana v. Tucker, 4 John., 487; Nesmith v. Clinton Ins. Co., 8 Abb., 141; Eastwood v. Parker, 3 Park., 25; Peo. v. Prost, 5 Park., 52.

Fox v. Clifton, 6 Bing., 754.

satisfy the court that injustice has been done, the court will set aside the verdict for the purpose of a new trial before another jury.1

The presumption is in favor of the verdict, and where the evidence, though slight is uncontradicted, the verdict will stand; but a new trial will be granted where the verdict is without evi. dence, or manifestly against the weight of evidence. But where there is a conflict of evidence, courts will reluctantly interfere to set aside a verdict, and grant a new trial, even though they deem the conclusion reached by the jury erroneous.3

It is the right of the jury to weigh the evidence, and to be the exclusive judges of its effect; and it is their sole duty, as it is their privilege, to derive from it their verdict. So, also, the credibility of testimony is a matter within their sole cognizance, and great latitude is necessarily allowed jurors in drawing inferences from testimony. They are the proper judges of its bearing and effect, and the presumptions arising from it.4

And to set aside a verdict, where there was evidence on both sides, there must be such a preponderance of evidence as to satisfy · the court either that there was an absolute mistake on the part of the jury, or that they acted under the influence of prejudice, passion or corruption.5

In criminal cases, if the evidence is conflicting, and the question is one of doubt, and no error was committed by the court in its charge, a new trial will, in general, be denied.

(h) Verdict Against Law.―The jury are to receive, as binding, the law laid down by the court, and after a conviction, if the verdict is against the law, it will be set aside. Indeed, it is a universal rule, that where the verdict is clearly against the law, a new trial will be granted."

Adsit v. Wilson, 7 How., 64.

2 State v. Lyon, 12 Conn., 487.

3 G. & W. on New Trials, p. 1240, et seq.; 6 Cow., 682; 7 Barb., 271; 7 How., 64; 27 Barb., 828; 5 Sandf., 180.

3 G. & W. on New Trials, p. 1261-1275, et seq.

Cohen v. Dupont, 1 Sandf., 260. Vide 3 E. D. Smith, 98; 5 Barb., 337; 7 How., 251; 33 Barb., 127–347; 36 Id., 23; 29 Id., 218-491-504; 24 How., 58; 29 Barb., 226; 9 Abb., 45; 10 Bos., 108; 29 How., 155.

Peo. v. Goodrich, 3 Park., 518.

73 G. & W. on New Trials, p. 1180, et seq.

In the preceding pages, the author has endeavored to trace, step by step, the various proceedings taken in a criminal action from its commencement, by taking the initiatory step of making a complaint against the accused, down to the carrying out of the sentence of death.

It will have been observed, that the rights of the citizen are most carefully guarded in criminal prosecutions; he may demand an examination, and if the proof is insufficient, may be discharged upon his preliminary arrest ;—a grand jury interposes, twelve of whom, at the least, must concur in finding the indictment. If the indictment be manifestly bad in law, it may be quashed; he is entitled to a copy of the indictment; to a public trial, to be confronted with the witnesses against him; to produce his own witnesses by process extended by the court, and to be defended by counsel. The petit jury must be unanimous, and if they entertain a reasonable doubt of the guilt of the accused, he must be acquitted; and after conviction, for sufficient errors in the proceedings, he is entitled to have the judgment arrested. He may also take exceptions upon the trial, and have his case reviewed by a superior tribunal, and upon the grounds of irregularity, surprise, newly discovered evidence, and other grounds, move the court for a new trial, which will be granted in case sufficient reasons therefor exist.

The experience of the law has demonstrated, that it is as necessary that the citizen should be shielded from oppressive or malicious criminal prosecutions as it is that the property and life of the citizen should be guarded by the administration of the same law, in convicting offenders and punishing them for its violation. As has been observed, "it highly concerns the safety of every individual, as well as the general morality and happiness of the people, that the innocent be protected against unmerited severities, and that the guilty be conducted with certainty to punishments proportionate to their crimes."

A perusal of the foregoing pages, as compared with the earlier history of the criminal law in the parent country, will show the progress which has been achieved by a more humane and enlightened consideration of the rights of an accused party. For the purpose of distinctly observing the important changes made by