Topic 3. Juror 1098. JAMES BRADLEY THAYER. A Preliminary Treatise on Evidence. (1898. p. 140). . . . For centuries the great check upon the jury was the attaint, i. e., a proceeding in which the original parties and also the first jury were parties, and where a larger jury, made up of knights or other more considerable persons than the first, passed again on the same issue. If they found contrary to the first finding, then the first jury was convicted of perjury and heavily punished; and the first judgment was reversed. . . . The Mirror, towards the end of the thirteenth century, wished attaints extended and made easier: "It is an abuse that attaints are not granted without difficulty in the Chancery to attaint all false jurors, as well in all other actions real, personal, and mixed, as in the petty assizes." The attaint was now a general remedy, for litigants in the king's courts, but it was found to be a very inadequate one. The next century is full of complaints, loud, bitter, and constant, of the wretched working of the jury and the attaint; perjury, bribery, and ruinous delays are set forth as inducing the increase of the property qualifications of jurors, and imposing new penalties upon them. . . . But not only was the size and the machinery of the attaint jury cumbrous and well adapted to delays and frauds, but the attaint jurors were unwilling to find the petit jurors guilty, the punishment was so harsh. . . . The wisdom of providing some milder punishment was seen, something that would not seem excessively severe and grossly unjust. . . The statutes of Henry VII. however, while providing something new, did not repeal the old common-law attaint: "so that," says Blackstone, "a man may now bring an attaint either upon the statute or at common law, at his election, and in both of them reverse the former judgment." Either way the punishment was very severe; and it plainly appears that this, with other causes, was working fast to make the attaint wholly inoperative. ... ... The attaint, which long held its place as the only way of remedying a false verdict, proceeded on the theory that the first jury had wilfully falsified, and so was punishable. An independent, original knowledge of the facts was attributed to the jury, and not a merely inferential and reasoned knowledge. So long as this theory was true and was really a controlling feature of trial by jury, witnesses must needs play a very subordinate part. They were not necessary in any case. When they appeared, the jury could disregard all they said; and should, if it were not accordant with what they knew. Gradually it was recognized that while the jury might not be bound by the testimony, yet they had a right to believe it, and that they were the only ones to judge of its credibility. It became, then, the chief question whether they had such evidence before them as justified their verdict. If they had, they were not punishable; if they NOTES: "Trespass: forcible entry of house by officer without warrant under color of police duty." (C. L. R., V, 401.) "Arrest without warrant: affray: arrest of participant after termination of." (H. L. R., VII, 124.) "Officer with civil process: whether a trespasser." (H. L. R., VIII, 120.) "Publication of Bertillon measurements and photographs.' (H. L. R., XVII, 142, 496.) "Seizure of incriminating evidence at time of prisoner's arrest." (H. L. R., XXIV, 656.)] had not, why punish them for what, perhaps, they did not know? . . . An attaint jury must often find it hard to say that it was a wilful falsehood, to go against a mass of evidence which admitted of being thought only partly true or of being wholly disbelieved. The attaint grew unworkable. For one reason or another people were unwilling to resort to it, and jurors of attaint were unwilling to find the former jury guilty. . . . Blackstone said, "I have observed very few instances of an attaint in our books later than the sixteenth century." "The writ of attaint," said Lord Mansfield at about the same time, in 1757, "is now a mere sound in every case." In 1825 it was at last enacted that in all cases attaints should "henceforth cease, become void and be utterly abolished." 1099. FLOYD v.-BARKER (Star Chamber, 1608. 12 Co. Rep. 23). In this very term, between Rice ap Evan ap Floyd, and Richard Barker, one of the justices of the grand sessions in the county of Anglesey, and other defendants: it was resolved by POPHAM and COKE, Chief Justices, the Chief Baron, and EGERTON, Lord Chancellor, and all the Court of Star-Chamber, that when a grand inquest indicts one of murder or felony, and after[wards] the party is acquitted, yet no conspiracy lies for him who is acquitted, against the indictors; for this [reason] that they are returned by the sheriff by process of law to make inquiry of offences upon their oath, and it is for the service of the King and the commonwealth. . . If the party shall not have a conspiracy against the indictors, when the person is acquitted upon his indictment, a multo fortiori when he is lawfully convict, he shall not charge neither the grand inquest by whom he was indicted, nor the jury who found him guilty. . . . And it will be a cause of infinite vexation and occasion of perjury and smothering of great offences, if such averments and supposals shall be admitted after ordinary and judicial proceeding: and it will be a means ad deterrendos et detrahendos juratores a servitio Regis. 1100. DUNHAM v. POWERS SUPREME COURT OF VERMONT. 1869 42 Vt. 1 ACTION on the case for speaking slanderous words. Plea, the general issue. Trial by jury, April Term, 1868, BARRETT, J., presiding. Upon the trial the plaintiff introduced testimony tending to show that, in the year 1866, the plaintiff brought a suit against one Carpenter, to recover the value of a valuable swine, alleged to have been killed by his carelessness, returnable before a justice of the peace; that there was a trial by jury and that the defendant was one of the jurors; that upon the trial of that cause and after it had been submitted to the jurors, and while the jurors had the cause under consideration, the defendant spoke words in substance and with the meaning alleged in the declaration. "Dunham is a liar;" "I don't believe a word he said;" "Mr. Austin came to insure his" (meaning the plaintiff's) "shop;" "he said there was no insurance on it, insured by him" (meaning said John Austin, agent as aforesaid) "and then it burnt, and he got seventeen hundred dollars insurance;" ... It appeared from the cross-examination of the plaintiff's witnesses that there was a conflict between the testimony given by the plaintiff upon that trial, and the testimony given by the defendant in that action and his witnesses, and that the defendant in this action spoke the words complained of while giving his reasons to his fellow-jurors why the plaintiff ought not to be believed in the testimony he had given in that cause. One of the jurors had held out for awhile against the views of the defendant and the other four jurors, but had yielded and agreed to a verdict before the speaking of the words, but had not yielded in opinion at the time the words were spoken. . . . It appeared that no evidence whatever was given upon that trial in regard to the burning of the plaintiff's buildings, or the insurance upon them, or the manner in which such insurance was effected, or in any manner affecting the plaintiff's character or credibility, except that . . . the credibility of the plaintiff was material to the decision of the cause. The defendant requested the Court to instruct the jury that "The occasion of the speaking the words was one which was absolutely privileged, and that no action could be maintained for the speaking of them.... The Court declined to charge as requested, but did charge that "In the proper discharge of one's duty as a juryman, anything that he may say as to a party or witness in the case on trial would not give a cause and right of action against him as for slander. . . . But if a juryman assumed in the consultation to make statements as matters of fact to his fellow juryman about which no evidence had been given on the trial of the case, and which had no connection with or relation to the evidence given on the trial, and those statements would be slanderous if made by him not as juryman, and would be actionable, they would be equally so when made by him acting in his character as juryman." . . . To the refusal of the Court to charge as requested, and to so much of the charge above set forth as is contrary to said requests, the defendant excepted. Verdict for the plaintiff for $241.66. After the verdict and before judgment, the defendant filed a motion in arrest of judgment, which, without hearing, was overruled, proforma, and to this, the defendant excepted. . . . The opinion of the Court was delivered by PROUT, J. The jury having returned a general verdict in this case, the judgment should have been arrested by the County Court. On the trial it appeared, as the case shows, that the slanderous words, set forth in all the counts of the declaration, were spoken by the defendant while acting as a juror in a cause in which the plaintiff was a party and had testified that they were spoken by the defendant to his fellow-jurors in the jury-room, and while they had the case under consideration, or before they had returned their verdict into court. The defendant claimed that what he said under these circumstances was not actionable but privileged; or, if not absolutely privileged, prima facie so, if he acted honestly and in the belief that he was properly discharging his duty as a juror, and he requested the Court to so charge. The Court refused to comply with the request. . . . ... A jury participate in the trial of a cause in obedience to the requirement of law, and may be coerced to perform that service. It is a public duty; and, if sometimes, in the discussions of the jury-room, they do not indulge in the same pertinency of remark and comment concerning the cause submitted to them as the Court, they are presumed to act as conscientiously, and with reference to the evidence before them.. Whenever duties of this nature are imposed by law upon a party, the due execution of which depends upon belief and the exercise of the judgment, there is an exemption from responsibility by civil action for the manner in which those duties are performed, or even the motives which influence it. This is the general rule applicable to cases which concern the administration of justice between party and party; and upon principle, a juror, while acting as a part of the Court, is entitled to the benefit of this rule of impunity, in respect to what he says in the jury-room concerning the cause; which also applies to the judge, or to a grand juror, or member of the legislative body, and he should be subject to no greater risk or hazard. Acting upon oath, and when, as the present case shows, there was a conflict in the testimony, the defendant no doubt entertained a decided opinion, and as a juror he was called upon to express it, as he had a right, as well as the grounds or reasons of it, to his fellows, in justification of his view of the case. A jury trial is rare, in these days, as all experience shows, in which a question of veracity or credibility does not arise, involving somewhat the character for truth and reliability of a witness or party, and this is just what occurred in the case alluded to. Whenever this is the case, jurors no doubt discuss the question submitted to them under the influence of more or less feeling, but they are answerable for it only to their own consciences. "The place protects them," and this was the ancient common law, unless they gave a false verdict, when they were proceeded against in a very different manner, as they may be now, for misconduct in the discharge of their duty. . . . Throwing open the door of the jury room for the purpose sought by this action would be equally so, if not more injurious to the community. Having these views of the merits of the case, the judgment of the County Court is reversed and judgment on the verdict arrested, the defendant to take no costs, except costs in this Court. ACTION on the case. And counts, that he was possessed of a fountain of silver to the value of 500l. and delivered it to J. D. to transport beyond sea, and there to sell it, and to render an account thereof to the plaintiff, which the said J. D. brake, and converted to his own use. Whereupon the plaintiff brought his action on the case against him, wherein they were at issue. And the defendant being produced as a witness on the part of J. D. falsely swore that the said fountain was not worth above the value of 180l. whereas, in truth, it was worth 5001. by reason of which false oath the jury gave to the now plaintiff but 2001. damages, whereas they would otherwise have given more damages; whereupon he brought his action. The defendant pleads not guilty, and found against him, and damages assessed to 300l. And it was moved in arrest of judgment, that the action lay not; for the law intends the oath of every man to be true; and therefore until the statute of 3 Hen. VII, c. 1, which gives power to examine and punish perjuries in the Star-Chamber, there was not any punishment for any false oath of any witness at the common law: and now there is a form of punishment for perjury provided by the statute of 5 Eliz., c. 9; and if this action should be allowed, the defendant might be twice punished, viz. by the statute, and by this action, which is not reasonable. And of that opinion were Walmsley, BeauMOND, and OWEN, that this action lies not. . . . Here they would in this action draw in question the intent of the jurors what greater damages they would have given unless for this oath, which is secret, and cannot be tried; and therefore to punish a man for his oath upon a secret intent would be hard; and if this might be suffered, every witness would be drawn in question. Wherefore upon these reasons they held, that this action lay not, and gave judgment for the defendant, against the opinion of ANDERSON, Who conceived the action was maintainable. 1102. GODETTE v. GASKILL SUPREME COURT OF NORTH CAROLINA. 1909 151 N. C. 52, 65 S. E. 612 APPEAL from Superior Court, Craven County; O. H. ALLEN, Judge. Action by Jesse P. Godette against S. B. Gaskill. Judgment of nonsuit, and the plaintiff appeals. Affirmed. |