People v. Gray. about seventeen and a half gallons (of the beer) were drunk by them; that during the same period a two-gallon demijohn of wine was brought in and drunk by them; that during the same period some of the jurors drank claret wine, amounting to three bottles, at their meals, while some of them drank whisky at their meals ; that all this drinking was done before the cause was submitted to them on the afternoon of the 11th of June; that on the 11th of June, during the noon recess, two of the jurors procured each a flask of whisky; that one of the jurors (Price, the foreman) drauk nothing. That all the drinking by the jurors was without the permission of the court, or the consent of the defendant, or of the counsel engaged in the cause, and in fact without the knowledge of either of them; that all the beer, wine and whisky drunk was procured by such of the jurors as desired it of their own motion and at their own expense; that the verdict was agreed on about eight and a half o'clock on the morning of the twelfth. Further, the evidence affords strong reason to suspect that one of the jurors drank so much while deliberating on the verdict as to unfit him for the proper discharge of his duty. The decisions as to how far drinking by a juror while in the discharge of his duties as such, at his own expense, without the permission of the court, or the consent of the party, is such misbehavior that the verdict should be set aside and a new trial granted, are not uniform. In Iowa and Texas no drinking at all is allowed. See State v. Baldy, 17 Iowa, 39; Ryan v. Harrow, 27 id. 494; Jones v. State, 13 Tex. 168. It is held in these cases that if any liquor is drunk while the juror is in the discharge of his duties, the verdict cannot stand. In each of the cases cited the drinking was done after the cause was submitted to the jury to deliberate on their verdict. In State v. Baldy, a juror in charge of a bailiff went to a grocery store to purchase some tobacco, and while there drank a glass of ale or lager beer, and then returned with the bailiff to the jury room. In Ryan v. Harrow, a civil case, two of the jurors drank intoxicating liquors. In Jones v. State, the bailiff twice took the jury whisky, which they drank. The verdicts in these cases were set aside. These cases all hold that courts will not inquire whether the juror was affected by what he drank or not; that the only sure safeguard to the purity and correctness of the verdict is that no drinking shall be allowed. This rule is supported by the following People v. Gray. cases: Davis v. State, 35 Ind. 496; s. c., 9 Am. Rep. 760; Leighton v. Sargent, 31 N. H. 119; State v. Bullard, 16 id. 139; Pelham . Page, 6 Ark. 535; Gregg v. McDaniel, 4 Harr. 367; People v. Douglass, 4 Cow. 26; s. c., 15 Am. Dec. 332; Brant v. Fowler, 7 Cow. 562. The law seems to have been settled in New York to the same effect as in Iowa and Texas, until Wilson v. Abrahams, 1 Hill, 207, which was a civil case, as its title imports. In that case during the trial and before the cause was submitted to the jury for their consideration, and the jurors were allowed to separate, one of the jurors, during an adjournment for dinner on the second day of the trial, went into a tavern and drank about half a gill of brandy. In the opinion of the court, BRONSON, J., states his conclusion arrived at: "When in the course of the trial a juror has in any way come under the influence of the party who afterward has the verdict, or there is reason to suspect that he has drunk so much, at his own expense, as to unfit him for the proper discharge of his duty, or where he has so grossly misbehaved himself in any other respect as to show that he had no just sense of the responsibility of his station, the verdict ought not to stand. But every irregularity which would subject the juror to censure, whether in drinking spirituous liquor, separating from his fellows, or the like, should not overturn the verdict, unless there be some reason to suspect that the irregularity may have had an influence on the final result." It may well be doubted whether it was the intention of the court, in Wilson v. Abrahams, to establish a rule in capital cases different from that held in Iowa and Texas. We express ourselves in this way in consequence of the guarded language of the opinion. The opinion opens by stating the rule in civil cases — and when it comes to remark on the case of People v. Douglass, in 4 Cowen, holding a rule similar to that established in Iowa and Texas, it is said that the case under consideration is distinguished from it, and the feature of distinction first mentioned is that it is a capital case. The cases cited by counsel either follow the rule in the Iowa and Texas cases, or Wilson v. Abrahams. If any have gone further in a direction opposed to Ryan v. Harrow and Jones v. State, above cited, we are not disposed to follow them. It is not necessary in this case to say which rule should be adopted as the law in this State; but following the rule of Wilson ▼. Abrahams, "that where there is reason to suspect that" a juror People v. Gray. has drunk so much as to unfit him for the proper discharge of his duty," the verdict ought not to stand. In our judgment there is strong reason to suspect this of one of the jurors, and therefore a new trial should be had. It should be added here that if it is necessary that intoxicating liquors of any kind should be drunk by a juror, application for leave to do so should be made to the court, who can make such allowance as will be proper. Jurors should not be allowed to judge for themselves in this matter. A defendant in a criminal case should not be called on to consent, and in any case when the party consents, if the juror becomes intoxicated, the verdict should not stand. The purity and correctness of the verdict should be guarded in every way, that the administration of justice should not be subjected to scandal and distrust. For the reason above indicated, the judgment and order are reversed and the cause remanded for a new trial. MYRICK, J. I concur. The evidence contained in the affidavits is conflicting as to whether the juror Winn was intoxicated at the time of the rendition of the verdict, and as the motion for a new trial was denied, the court below must have concluded that intoxication did not exist. But it is an undisputed fact that beer to the amount of three or four kegs was kept in the jury room on tap, and was daily used, and that two gallons and three or four bottles of wine and frequently whisky, was drunk. This was such improper conjury as calls for a reversal of the judgment, A jury is to be provided with suitable and Penal Code. It requires no argument to show that the beer, wine and whisky consumed was not suitable and sufficient food. duct on the part of the based upon the verdict. sufficient food. § 1136 MCKEE, J., concurred with Mr. Justice MYRICK. MCKINSTRY and Ross, JJ. We concur in the judgment. When some of the jury, in addition to the "suitable" food furnished by the sheriff, obtained and consumed fifteen to twenty gallons of beer, two demijohns of wine, two bottles of whisky, and also other wine and whisky at each meal (including breakfast), they were guilty of such misconduct as made it the duty of the court below to grant a new trial. SHARPSTEIN, J. [Omitting minor matter.] I think that the introduction of ardent spirits into the jury room while the jury were deliberating upon their verdict constituted miscon Druke v. Heiken. duct per se. The sheriff was authorized to provide the jury "with suitable and sufficient food and lodging. Penal Code, 1136. This is a modification of the old rule which required that they should be kept without meat or drink, fire or candle, until they agreed." But it is the opinion of at least one text writer that "there has been no relaxation as far as drinking intoxicating liquors is concerned." Proffatt on Jury Trial, 398. Whether any juror was so much affected by drinking ardent spirits in the jury room as to temporarily unfit him for the discharge of his duty is not made clear. But it is sufficiently clear that some of them might quite naturally have been more or less under the influence of liquor while deliberating on their verdict, and it seems to me that that is good ground for setting the verdict aside. An unindorsed negotiable note is subject of a gift causa mortis, and carries a collateral mortgage. THE opinion states the point. The plaintiff had judgment THE below. L. S. Taylor and Freeman & Bates, for appellant. M. C. Barney and I. S. Belcher, for respondents, cited 3 Wait Act. and Def. 503, 506; Redf. Wills, Part II, pp. 305, 312, 313; 2 Kent Com., marg. p. 448 and note; Grover v. Grover, 24 Pick. 261; s. c., 35 Am. Dec. 319; Westerlo v. De Witt, 36 N. Y. 340; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 id. 420; Brown v. Brown, 18 Conn. 410; Turpin v. Thompson, 2 Metc. (Ky.) 420; Borneman v. Sidlinger, 15 Me. 429; s. c., 33 Am. Dec. 626; Ashbrook v. Ryon, 2 Bush, 228; Walsh v. Sexton, 55 Barb. 251; Pierce v. Boston Savings Bank, 129 Mass. 425; s. c., 37 Am. Rep. 371. VOL. XLIV-70 Ex parte McClain. The COURT. If a promissory note, payable to order and not indorsed, is the subject of a gift causa mortis, the judgment appealed from must be affirmed, for there is uncontradicted evidence that such a note was given by the decedent as a donatio causa mortis to Margaret Heiken, one of the defendants in this action. The authorities cited by respondent's counsel are somewhat numerous, and all support their contention "that a promissory note, payable to order and not indorsed, is the subject of a gift causa mortis." Section 3101 of the Civil Code has not changed the rule in regard to the transfer of negotiable instruments payable to order by indorsement. The assignment of the note carried the mortgage with it. Judgment affirmed. The legislature may make it a misdemeanor to sell intoxicating liquor within two miles of the State prison grounds, or within one mile of the State insane asylum, or within one mile of the grounds of the State University, or in the State capitol, or upon the grounds belonging thereto. H ABEAS corpus. Conviction of misdemeanor. The opinion MYRICK, J. The petitioner was convicted of a misdemeanor for violating § 172, Penal Code, and was adjudged to pay a fine of $25, in default of payment whereof he was restrained by the sheriff. The section reads as follows: "Every person, who within two miles of the land belonging to this State, upon which the State prison is situated, or within one mile of the insane asylum at Napa, or within one mile of the grounds belonging and adjacent to the University of California in Alameda county, or in the State capitol, or within the limits of the grounds adjacent and belonging thereto, sells, gives away, or exposes for sale, any vinous or alcoholic liquors, is guilty of a misdemeanor." This section was enacted prior to the adoption of the new Constitution, and is unaffected by it. |