Matthews v. State, 239. May, in re, 315. ་་ Mayor of Munroe v. Hoffman, 440. Merchant's Nat. Bk.v.United States. Merriam v. Brown, 316. Methall v. Vining, 480. Meyer v. Delaware Const. Co., 14. Miller v. Mercier, 464. Missionary Society v. Chapman,277. Moner, ex parte, 480. Monticello Building Smythe, 434. Monke v. Hafeman, 440. Moody v. Aiken, 79. Moore v. State, 239. Morgan v. Wattles, 455. Assn. V. Morrow v. State, 496. v. Lowell 316. Myers v. James, 457. Raeder v. Bensberg, 360. Raynsford v Phelps, 464. Reading etc. R. Co. v. Latshaw, 361. Reeves v. Booth, 45. Remington Sewing Mac. Co. v. Kez- Rhymer's Appeal, 435. Richardson v. Pitts, 377. Ridenour v. Beekman, 257. Rimmel v. Benna, 158. Roberts v. Norris, 136. Sagg v. People, 196. St. Louis Nat. Bk. v. Brinkman, 95. Self v. Brighton etc. R. Co., 416. v. Thomas, 327. v. Wiles, 335. Steinman, ex parte, 379. 66 Stewart v. Platt, 73. 66 v. Stewart, 140. Stigers v. Brent, 473. Stone v. State, 449. Strauder v. State, 225. Stupetzki v. Transatlantic Fire Ins. Sturges v. Bridgman, 174. Sumner v. Cottey, 433. Swayze v. Hull, 463. Sweeny v. Boston etc. R. Co. 7. Swigart v. State, 115. Siebold, ex parte, 257. Slattery v. Rafferty, 310. Upton v. County of Clinton, 16. The Central Law Journal. ST. LOUIS, JANUARY 2, 1880. POLLING THE JURY. Trial by jury is a part of the common law which our ancestors brought with them to this country. The verdict of an English jury is the unanimous finding of the twelve sworn jurors. As unanimity was necessary to a verdict, a practice arose which must be almost coeval with jury trials, of examining each member of the jury as to his concurrence in the verdict. This, whether done by clerk, counsel or judge, formally or informally, if done in open court, after the verdict is announced and before it is recorded, is called polling the jury. Up to the time of Edward I, the jurors were the witnesses, and being subject to interrogation, were polled by the process of the trial. On the trial of Sir Nicholas Throckmorton, in the reign of Mary, the jury being asked for their verdict, the foreman, Whetston, said: "Not guilty." Sir Thomas Bromley, lord chief justice, said: "How say you the rest of you, is Whetston's verdict all your verdicts." They all answered "yes." 1 Thus each juror was made to speak, and substantially the jury was polled. A practice similar to this seems to exist in Virginia, and in Massachusetts, as will be more fully shown hereafter in this paper, which is written to review, in a spirit of just criticism, the case of United States v. Bridges, reported in the present number. In civil cases it is sometimes held that it is discretionary with the court to grant or refuse a motion to poll the jury. It is so decided in South Carolina, Georgia, Ohio and California.s In other civil cases it is held absolute right to poll the jury in a civil cause, no one will be surprised that the right is almost universally acknowledged in criminal cases; "for," said Chapman, C, J., in Commonwealth v. Durfee," "less strictness ought not to be tolerated in a criminal case than is required in a civil case." 6 In State v. Young, the court held that upon the rendition of a verdict in a criminal action the defendant has a legal right to demand that the jury be polled, and it is error in the court to refuse it. The right of a defendant in a criminal case to demand that the jury be polled is recognized by numerous authorities." Against this array of authority are the cases in South Carolina. In 1821 the Supreme Court of that State held, in the civil case of Martin v. Maverick, that the jury can not be polled but at the discretion of the court. The court said: "It is true that every case must be decided by the concurrence of the whole jury, and the party has the right to satisfactory evidence of this concurrence." The practice in South Carolina of calling each of the jurors by name and of inquiring if they had agreed on their verdict, receiving the written verdict from the foreman and reading it aloud, is held sufficient to ascertain their concurrence. No authorities are cited in this case. In 1822, in the case of State v. Allen,8 that court affirm Martin v. Maverick, and apply it to a criminal case, without citing any authorities or referring to the fact the former was a civil case and the latter a crim inal case. In 1854 the question again came. before the Supreme Court of South Carolina, in the case of State v. Wise, where the same question was raised but "not pressed by counsel" and the court adhered to their previous decisions in a brief opinion, citing no other cases. The case of Commonwealth v. Roby,10 is sometimes cited as an an authority sustain criminal case has no right to poll a jury. But an examination of that case, and of the earlier that the parties have the absolute right to polling the proposition that a defendant in a the jury. It is so decided in Missouri, Illinois and New York. When it is shown that many courts hold that the parties have the (1) 1 How. St. Trials, 407. (2) Com. v. Gibson, 2 Va. Cas. 70. (3) Martin v. Maverick, 1 McCord, (S. C.) 24; Rutland v. Hathorn, 36 Ga. 380; Landis v. Dayton, Wright, (Ohio), 659; Blum v. Pate, 20 Cal. 69. (4) Hubble v. Patterson, 1 Mo. 392; Johnson v. Howe, 7 Ill. 342; Rigg v. Cook, 9 Ill. 336; Fox v. Smith, 3 Cow. 23; Jackson v. Hawks, 2 Wend. N. Y. 618; Labar v. Koplin, 4 546. Vol. 10-No. 1. (5) 100 Mass. 149. (6) 77 N. C. 498. (7) Nomaque v. People, 1 Ill. (Breese) 109; Wright v. State, 11 Ind. 569; State v. Hughes, 2 Ala. 102; Brister v. State, 26 Ala. 131-2; People v. Perkins, 1 Wend. 91; Sargent v. State, 11 Ohio, 472: 1 Bish. Crim. Proced. 830. (8) 1 McCord, 525. (9) 7 Rich. 412. (10) 12 Pick. 496. case of Ropps v. Barker," show that by the practice in Massachusetts, the court in receiving the verdict substantially poll the jury. In the later case, the court, in referring to the earlier case, say: "The verdict having been drawn up and put into form at the bar, and a question being made whether the verdict thus reduced to form expressed the real intent and meaning of all the jurors, the judge was requested to poll the jury, which was not complied with. Upon this and other grounds a new trial was moved for." In regard to this part of the motion the court say: "When the jury have found a verdict substantially it is read to them in form. If any juror does not agree to it when so read, he may express his dissent, and the jury may retire and revise the verdict. But if, when asked in the usual manner whether they agree to the verdict, they all answer in the affirmative, it will be sufficient to authorize it to be recorded." In United States v. Bridges, the general right to poll the jury in criminal cases was not denied; but it was held that the right was lost by the agreement to a sealed verdict, and the subsequent separation of the jury. The modern sealed verdict is nothing more than the ancient privy verdict, which was "delivered privily to the judge out of court." an article on Trial by Jury, published more than a century ago, we find Sir Matthew Hale cited to sustain the following description of the privy verdict: "A verdict, vive dictum, is either privy or public. A privy verdict is where the judge hath left or adjourned the court, and the jury being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court, which privy verdict is of no force, unless afterward affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from their privy verdict. So the privy verdict is indeed a mere nullity, and yet it is a dangerous practice allowing time for the parties to tamper with the jury, and, therefore, very seldom indulged. But the only effectual and legal verdict is the public verdict."'12 A jury is polled by asking each juror: "Is this your verdict?" The purpose of the (11) 4 Pick. 239. (12) 18 Enc. Brit. 3d ed. 1747, p. 568, citing Sir Matthew Hale, Hist. C. L. question is to ascertain whether or not it is their verdict.1 Conceding, what is clearly the law, that the defendant in a criminal case has the absolute right to have the jury polled, what reason can be given for depriving him of the right when he has agreed to a sealed verdict? When the jury is just from the jury room and delivers the verdict, orally or in writing, through their foreman, "to make all sure, "the defendant has the right to poll them. Does the fact that the jury left a verdict with the clerk twelve hours before it was opened and read, "make all sure?" Is it more certainly their verdict when so left with the clerk, or privily with the judge, than when delivered at first by them in open court? The asking of such a question is its own answer. If, "to make all sure," the defendant has the right to poll the jury, when the verdict in open court falls fresh from the lips of the foreman, a fortiori, he has the right when the clerk opens and reads a paper purporting to be their verdict, which has not been in the possession of the jury for twelve hours. The usage of the sealed verdict being evidently adopted for the convenience and comfort of the jury, by an earlier release from their confinement, what an abnormal perversion of such a design to permit it to operate as a deprivation of right upon the defendant! In the case of Fox v. Smith, "the trial not being closed till evening, it was agreed by the counsel for the parties, that the jury might bring in their verdict sealed the next morning, which was accordingly done. On the jury coming into their box the next morning, and presenting their verdict sealed, the defendant's counsel requested of the judge to have the jury polled, which he denied, and the verdict was recorded." The plaintiff's counsel, endeavoring to defend this action of the court below, argued that "an unqualified right to poll the jury, by a party who has had every chance to tamper with them, might lead to the greatest abuse." The court paid no attention to this argument, for it was clear to the judicial mind, that however strong the argument might be against the practice of receiving sealed verdicts, it had no weight as an argument against the defendant's right to poll (13) 1 Bishop Crim. Pro. 830. (14) 3 Cow. 23. the jury. It was here held, all the judges concurring, that the defendant had not waived his right to have the jury polled. "It has been the uniform practice at the Circuit, so far as I have been acquainted with it," said Woodworth, J., delivering the opinion of the court, to allow the jury to be polled, whether the verdict be sealed as here by consent, or delivered ore tenus by the foreman. We think the jury may be polled, at the instance of either party, at any time before the verdict is recorded, whether it be sealed by consent or is oral." This case is expressly approved in Labar v. Koplin, 15 by the Court of Appeals. The only distinction that can be pointed out between the facts of this case and the facts of the case of United States v. Bridges, is that the jury in the New York case did not leave their sealed verdict with the clerk, but it was kept by one of the jury, probably their foreman. The possession of the inchoate verdict, before it is delivered in open court, can create no legal distinction, because the delivery to the clerk had no legal effect whatever. It has already been shown that the delivery of the privy verdict to the judge out of court had no effect. The verdict of a jury is not valid and final until pronounced and recorded in open court. 16 The Supreme Court of Indiana, in the case of Wright v. State, held that 17 66 an agreement by the prisoner that the jury may seal up their verdict and separate, does not waive his right to have them present when it is read, and poll them." The case of Root v. Sher wood, 18 18 decided per curiam, when James Kent was chief justice, is in irreconcilable conflict with United States v. Bridges. In Root v. Sherwood, "the trial lasted till late in the evening, and after the charge of the judge, the parties consented that the jury might seal up their verdict. At the opening of the court, on the next day, the jury appeared, and the foreman delivered the sealed verdict, which was opened and read, by which the jury found for the plaintiff for $150 damages. On being polled nine of the jurors dissented from the verdict; but at the same time stated that they did agree to the verdict when it was made, and so informed the constable before they separated. The judge directed the verdict to be entered, subject to the opinion of the court, on the question whether the same ought to be recorded." And the court held: "The jury, when they came to the bar to deliver in their verdict, had a right to dissent from the verdict to which they had previously agreed. There is no verdict of any force but a public verdict, given openly in court; until it was received and recorded it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement that the jury might seal up their verdict, did not take away from the parties the right to a public In Sargent v. verdict, duly delivered." State, 19 the Supreme Court say: "In criminal cases, although the court direct the jury to bring in a sealed verdict, the whole jury must be present at the time of its delivery, in the presence of the prisoner, that they may be polled, if the prisoner desires it." In the case of United States v. Potter, 20 there was a sealed verdict. On the motion of the defendant's counsel, the jury was polled, and the following order made, which is here given as showing the proper practice in such cases: "And the jurors aforesaid being each separately interrogated by the court, whether the foregoing verdict is his verdict as it stands recorded, each for himself, separately answers that it is." Bishop, in his work on Criminal Procedure, says: "If the jury have brought in a sealed verdict by consent, they are not to be interrogated thereon, but they must be polled, if this be demanded." The case of United States v. Potter, is cited by Bishop as sustaining the sentence quoted. It is worthy of notice that according to the practice in the United States Circuit of Alabama, the verdict in United States v. Bridges, was signed only by the foreman of the jury; while in the cases of United States v. Potter, and Sargent v. State, where the right to poll was recognized, the sealed verdict was signed by each juror. 21 It is decided by the Supreme Court of ́Alabama that the rule of law is undoubted, that one tried for a crime has a right to be present when the jury return their verdict (19) 11 Ohio, 472. (20) 6 McLean, 186. (21) Vol. 1, § 830. |