Separation after being charged, before verdict. lustrated in the case of The King v. Woolf and others, (1) as to settle the practice on this point, if any doubt existed before. The defendants were indicted for a conspiracy to obtain goods by undue means. At the trial before Abbott, Ch. J., the defendants, Mozely, Woolf, Levy and Kinnear, were found guilty. They moved for a rule to show cause why the verdict should not be set aside, on the ground that the finding of the jury was void, the jury having dispersed, during the interval of an adjournment, before they delivered their verdict. The affidavits, in support of this motion, stated in substance, that the trial had lasted two days; that in the morning the trial commenced, and about 11 o'clock at night, the case being then unfinished, the court adjourned until the following morning; and the jury sepa rated and retired to their respective homes. The next morning they assembled again, and the case being concluded at a late hour in the afternoon of that day, they found the defendants guilty. The defendants and their attorneys were wholly ignorant of the fact of the jury having separated, until after they had found their verdict. The judges delivered their opinions seriatim; but that of Abbott, Ch. J., will sufficiently illustrate the modern rule.— "I am of opinion that there is no sufficient foundation for the present application. The application is grounded upon the suggestion of these two facts: First, that the jury had dispersed during the night. Secondly, that that fact was not known to the defendants until after the trial was over. Now the trial *began between nine and ten in the morning; it had pro- [*83] ceeded until eleven o'clock at night or later, before the evidence on the part of the prosecution was closed. Learned counsel were employed separately for several defendants. It must be assumed, that in that stage of the case, evidence would be laid before the jury on the part of the defendants. It became matter, therefore, of necessity, that the trial should be adjourned, and an adjournment accordingly took place from the necessity of the case, the jury being fatigued both in mind and body; and it would have been most injurious to the case of the defendants, (1) 1 Chitty's Rep. 401. Separation after being charged, before verdict. even if the judge and jury had had strength enough to go on till the trial came to a close; I say most injurious to the case of the defendants, if their case was heard by persons whose minds were exhausted with fatigue, as it would have been, if an adjournment had not taken place. An adjournment of this nature is not necessarily followed by the dispersion of the jury, for in many cases, they are kept together till the final close of the trial. But I am of opinion, that in a case of misdemeanor, their dispersion does not vitiate the verdict; and I found my opinion upon. the admitted fact, that there are many instances, of late years, in which juries upon trials for misdemeanors, have dispersed and gone to their abodes during the night for which the adjournment took place, and I consider every instance in which that has been done, to be proof that it may be lawfully done. It is said, that in some of those instances, the adjournment and dispersion of the jury have taken place with the consent of the defendant. I am of opinion, that that can make no difference. I think the consent of the defendant in such case ought not to be asked; and my reason for thinking so is, that if that question is put to him, he cannot be supposed to exercise a fair choice in the answer he gives, for it must be supposed that he will not oppose any obstacle to it; for if he refuses to accede to such an [*84] accommodation, it will excite that *feeling against him which every person standing in the situation of a defendant would wish to avoid. I am also of opinion, that the consent of the judge would not make, in such case, that lawful, which was unlawful in itself; for if the law requires that the jury shall at all events be kept together, until the close of a trial for misdemeanor, it does not appear to me, that the judge would have any power to dispense with it. The only difference that can exist between the fact of the jury separating with or without the approbation of the judge, as it seems to me, is this, that if it be done without the consent or approbation of the judge, express or implied, it may be a misdemeanor in them, and they may be liable to be punished; whereas, if he gives his consent, there will be no such consequence of a separation. But, though it may be a misdemeanor in them to separate without his consent, it will Separation after being charged, before verdict. not avoid the verdict, in a case of this kind, as it would, if the law required the jury to be absolutely kept together. It seems to me, that the law has vested in the judge the discretion of saying, whether or not, in any particular case, it may be allowed to the jury to go to their own homes, during a necessary adjournment throughout the night. For these reasons it appears to me that there is no ground for the present application, and I conceive, we ought not to give any reason to suppose that any doubt exists, when none really exists in our minds." No case precisely in point has occurred, defining the power of the judge at the trial, and settling the American practice on the subject of the separation of jurors, at least in criminal cases. The uniform practice it is believed in this country is, not to permit the jury to separate in any stage of the progress of a criminal suit, after the case is given them in charge by the court, without consent of counsel. But there is little doubt, should the question arise upon a similar state of facts, as in the King v. Woolf, the decision would be similar. In a late [*85] case from Massachusetts, where the judge authorized the jury, without consent of counsel, to separate, after they should agree upon their verdict, and to return and render it at the opening of the court, it was held, upon motion to set aside the verdict, that it was not vitiated by the separation of the jury.(1) It was early held, that if the jury separated from inadvertance, and no abuse followed, although punishable by fine, it would not avoid the verdict. Thus, in Lord St. John v. Abbott. (2) After the evidence was summed up in the forenoon, the jury retired to consider of their verdict. Before the rising of the court they came into court, attended by the bailiff, to ask a question, which was answered, and they were sent back. At the sitting of the court in the afternoon, the judge was informed, that some of the jurymen were in court; whereupon being asked by him what they did there, answered they could not agree, and were there (1) Winslow v. Draper, 8 Pick. 170. (2) Barnes, 441. The court will inquire whether injury has ensued from the separation. upon sent back to their fellows, and afterwards a verdict was brought in for plaintiff. The judge did not certify the verdict to be contrary to evidence. The court was of opinion, that this was a misbehavior in the jury, for which they were finable; but not a sufficient cause to set aside the verdict. VII. The court will inquire whether injury has ensued from the separation. Upon this point the practice in this country appears to have resolved itself into the exercise of a judicial discretion, confining the motion for a new trial to the question of abuse, and invariably denying the application, where no injury has ensued. Thus, in Smith v. Thompson.(1) Motion to set aside the ver dict, for irregularity in the conduct of the jury. After they had retired, and remained from 6 P. M. to 3 A. M., with [*86] out *being able to agree on their verdict, two of the jurors, eluding the care of the constable, left the jury room, and one of them remained at a neighboring tavern during the night; the other went to his own house, which was near by, ate his supper there, and staid all night. Both jurors returned, however, and the whole were together and went into court the next morning. They informed the court that they had not agreed, stated the point to the court wherein they differed, took their advice, retired, and found a verdict for the plaintiff. No improper communication with the jury appeared; and no probability that their absence had produced any effect upon their minds, in making up their verdict. Per Curiam.-"It was clearly irregular in the two jurors to separate from their fellows. But this does not affect the merits of the case, as between the parties. The ancient strictness, in relation to the conduct of jurors, is somewhat relaxed. Whether the verdict is to be set aside, must depend upon circumstances, and the real justice of the case. If there is a probability of abuse, we then notice it; but here is none." The court will inquire whether injury has ensued from the separation. So, in Horton v. Horton.(1) Motion for a new trial, on the ground of the misconduct of the jury, who agreed upon their verdict while the court were at dinner, and without the consent or knowledge of either party, dispersed, and obtained their own dinners, and returned into court at the opening thereof in the afternoon. Against the motion, it was contended, that though the dispersion of the jury may be a contempt of court, for which the jury are punishable, it is not such an irregularity as to avoid the verdict, and of this opinion were the court, adding, that if the slightest suspicion had appeared that the privilege which the jury had taken had be n abused, to the injury of the party, the verdict should be set aside. *So, in Ex parte Hill,(2) a mandamus was granted to va- [*87] cate a rule, setting aside a verdict for irregularity in an action between Hill, plaintiff, and one Clark, defendant. The verdict was for Hill; and the court below set it aside on Clark's motion, because one of the jurors, during the trial, left the box without permission of the parties or the court, went out of doors, and was absent some minutes, returned and took his seat, and joined in the verdict against the defendant. Neither of the parties knew of his absence till he had been gone some time; but no testimony was given to the jury while he was gone; and he spoke with no one except to tell the constable, who came after him and brought him back, that he was one of the jury. Per Curiam." It is the settled doctrine, that though such conduct as this is a contempt of the court, yet it is not a ground for avoiding the verdict." In Connecticut, a statutory provision on the subject, couched in strong terms, apparently prohibiting, under any circumstances, the separation of the jury, has received a construction conformable to the general practice. In The State v. Babcock,(3) in error, where the jury had separated before they agreed, the court say :— (1) 2 Cowen, 589. |