The first duty of the judge is the most rigid impartiality. He is not at liberty to comment upon the testimony on one side and leave that on the other untouched. It is his duty to review the whole evidence, and to discuss both branches of the evidence alike. The State has rights as well as the prisoner, and partiality, therefore, of the court towards the latter ought not to be tolerated.1

Chancellor WALWORTH said: In summing up a cause to the jury, even in a capital case, the judge has no right to point out to the jurors the strong points in the prisoner's defence only, and the weak points in the case made by the people. It is his duty to hold the scales of justice equally balanced between the people and the prisoner, and to point out to the jury impartially the strong and the weak points in the case of each, whether arising from evidence given, or from the want of evidence given by either, if any such evidence existed.2

But the judge should not dictate to the jury the verdict they should render, by his opinion to the jury on a matter of fact, rather as a direction than a mere opinion. The expression by the judge of an opinion upon the evidence, however strong or decided, has been held not to be objectionable, where it is given merely as his opinion, and the jury notwithstanding it, are at full liberty to entertain their own views, and to decide accordingly.3

The rule with regard to the positive instruction of the court to find facts, admits of the qualification that where the verdict is in strict accordance with the weight of evidence, and justice has consequently been done, a new trial will not be granted though the direction be positive. But to warrant an unqualified direction to find, the evidence must be either undisputed, or the preponderance so decided, that à verdict against it would be set aside.

§ 116. THE DELIBERATIONS OF THE JURY.

BISHOP says, the several questions which arise under this subject, are, with the exception of the one which concerns the form of the verdict, attended with some uncertainty, and conflict of

3 G. & W. on New Trials, 738 et seq.; Id., 726; Com. v. Childs, 10 Pick.,

G. & W. on New Trials, 738, 763.

judicial decision and practice, and that the English and American law relating to them differs somewhat, as well as the ancient and modern differs. After the evidence is closed, and has been summed up by the respective counsel, and the court have charged the jury, they may either give their verdict without leaving the box, or in cases of doubt they retire in charge of an officer to deliberate. After they have retired, it is their duty to continue together until they return into court, without having any communication with any person, either on the subject of the case or any other."

The jury, after the evidence is submitted to them, cannot receive any kind of evidence which can have the most remote bearing upon the case; it will be fatal to their verdict.3

The jury have no right to found a verdict upon chance; as, if nine of the panel should agree the other three should fall in with them, but the jurymen themselves cannot be heard to disparage their own verdict.4

There have been several conflicting decisions in this State as to whether juries in criminal cases were judges of the law as well as the fact, but the Court of Appeals have decided that the jury in their deliberations are to be governed by the instructions of the court upon legal questions, in criminal as well as in civil cases; because,

1. The selection of jurors from all classes, renders it unreasonable, as well as apparently unsafe, to require them to pass upon such questions.

2. If jurors were to determine the law, its stability would be subverted.

3. All questions in regard to the admission or rejection of evidence being questions of law, are required to be decided by the court. If jurors are to decide law and fact, their jurisdiction should extend to these questions, which often control the verdict.

4. Where the jury find the facts of the case by a special verdict, if they also find a conclusion of law different from that which the law would derive from the same facts, the court disregards the conclusion, and gives judgment according to the facts found.

5. The fact that a jury find a verdict in a criminal case against law, the court will not set it aside, is owing more to the tenderness of the common law towards persons accused of crime, than to any recognized right of jurors to decide legal questions.

6. In all cases, civil and criminal, where only legal questions are raised, as by demurrers to pleadings, demurrers to evidence, special verdicts, bills of exceptions, such questions are decided by the court, and not by the jury.

7. The fact of guilt being ascertained and declared by the jury, the court determines the punishment which the law prescribes for the offence.1

There is an exception to the above rule in the case of a prosecution for libel, where the jury are judges both of the law and fact.2

It is a reprehensible irregularity for a jury, after they have retired to deliberate on a trial for murder, to take the opinion of the constable in attendance on the question whether the jury could bring in a verdict of manslaughter, and to send for the Revised Statutes and examine their provisions in relation to the crimes of murder and manslaughter, and sufficient to vitiate a verdict of guilty, unless it appears beyond all reasonable doubt that no injury has resulted from it to the prisoner.3

§ 117. RETIREMENT OF THE JURY.

During the progress of the trial, and until the presiding judge has delivered his charge, the jurors sit in open court and are in its charge. At the termination of the trial the jury, where they do not agree in their seats, retire in the custody of a sworn officer of the court, a constable or a deputy sheriff, there to deliberate upon a verdict. The following oath is administered to the officer in such case:

"You shall well and truly keep every person sworn on this jury in some private and convenient place, without meat or drink,

'Abb. Dig. vol. 7, p. 618; Duffy v. Peo., 26 N. Y., 588; 8 Barb., 610; 1 Park., 152; 2 Sumn., 243; 2 Blackf., 156; Add. Rep., 156, 255; App. to Id., 53; Stark. Ev., 450, part 3, § 51; Worth on Juris., 793; 4 Blac. Com., 391; 3 Term, 428; Cas. Temp. Hardw., 28.

water excepted; you shall not suffer any person to speak to them, nor speak to them yourself without leave of the court, except it be to ask them whether they have agreed upon their ver dict, until they have agreed upon their verdict, so help you God." After the jury have thus retired they may come back for the advice or opinion of the court upon any point, or they may request the judge to read over to them any particular part of the evidence, or they may get the court to ask any particular question of the witnesses; all this, however, must be done in open court.1

§ 118. OF DISCHARGING THE JURY IN CASE OF THEIR INABILITY TO

AGREE.

The general rule is, that the jury must be kept together from the time they are charged until they deliver their verdict, unless the prisoner consent to their being discharged. But cases occur in which the judge from necessity is obliged to discharge them. If they cannot agree upon their verdict and they appear not likely to do so, the judge, in the exercise of his discretion, may discharge them as soon as it becomes a matter of necessity, of which he is to judge. But this discharge of the jury has no effect on the prisoner; he has no right, on that account, to be discharged; but must, if in custody, remain imprisoned until another jury can be charged with him, unless, in the meantime, he be bailed.4

3

Juries should not be discharged because upon the first comparing of opinions there happens to be a disagreement; temperate discussions may produce unanimity, and time should be allowed for that purpose; but when such time has been allowed, and the court become satisfied that there is no reasonable prospect of an agreement by further discussion, it then becomes their duty to discharge. The exercise of the discretion of the court in this respect cannot be reviewed on writ of error even where they were discharged after only thirty minutes' consultation.5

It has been said that the power of discharging a jury is a delicate and highly important trust; but that it exists in cases of

1

1 1 Arch. Cr. Pr., § 171.

2 Hawk., ch. 47, § 1; 1 Arch. Cr. Pr., 172.

R. v. Newton, 13 Shaw's J. P., 661; 1 Arch. Cr. Pr., § 172; Peo. v. Good

win, 18 John., 187; 2 John. Cases, 275; Id., 301.

R. v. Newton, 13 Shaw's J. P., 661; 1 Arch: Cr. Pr., § 172.

extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the accused; that it extends as well to felonies as to misdemeanors, and that it exists and may be discreetly exercised in cases where the jury, from the length of time they have been considering a case and their inability to agree, may fairly be presumed as never likely to agree unless compelled to do so from the pressing calls of famine or bodily exhaustion.1

§ 119. RENDITION OF THE VERDICT.

When the jury have come to a unanimous determination with respect to their verdict, they return to their seats in the court room, and the verdict is received by the court in the following

manner:

The clerk of the court says:

"Gentlemen of the jury, please answer to your names." (He then proceeds to call them one by one.) "Have you agreed upon your verdict?" (After the answer he says:) "Jurors, look upon the prisoner." (This last is omitted in cases other than felony or murder.) "Who shall say for you? (The foreman rises.) "How say you, do you find the prisoner at the bar guilty of the felony (or felony and murder), (or misdemeanor,) (or offence, as the case may be,) whereof he stands indicted, or not guilty." (The foreman answers, "Guilty," or "Not guilty." Then the clerk adds:)

"Hearken to your verdict, gentleman, as the court has recorded it. You say you find the prisoner at the bar guilty (or not guilty) of the felony (or felony and murder) (or misdemeanor or offence, as the case may be,) whereof he stands indicted, and so say you all."2

The verdict in felonies should be declared in the presence of the defendant; although this is not necessary in cases of inferior misdemeanors, or where no corporal punishment is to be inflicted.3

§ 120. OF THE VERDICT.

It is laid down by elementary writers that the verdict of a jury in criminal cases is to be considered and delivered with the same

1 Peo. v. Ward, 1 Whee. Cr. Cases, 466; 7 John. Cases, 276; Id., 301. Vide 1 Chit. Cr. Law, 635.

3 Ante.