The People v. . Kelly

Daniels, J. The exceptions taken in the case do not appear to present any point which can materially benefit the defendant. The inquiry made of the witness Strack, and answered by him, sufficiently showed his friendly relations with the prosecuting witness, and no more would have been proved by him if he had been permitted to answer the question when he handed him the three hundred dollars he collected and gave him ; the important inquiries which could by their answers in any manner affect Ms credit, had all been previously responded to. Neither was it important in any view of the case to prove that Strack had previously had difficulties with other persons, or that his general reputation as a man of violence, should be introduced into the case. Neither of these inquiries had any possible connection with the issue which was being tried, and the evidence was not offered to impeach his credit. The other objections and exceptions are still more clearly without any legal foundation, and need not therefore be considered. After the close of the trial, a motion was made in arrest of judgment, but as it was in neither of the causes mentioned in section 467 or 331 of the Code of Criminal Procedure, it could not regularly be entertained as such. It was not made upon anything appearing by the indictment or in the record of the proceedings in the case, and it was not therefore a motion in arrest of judgment, as that has been declared and defined, but it was in fact, as well as in form, a motion for anew trial made upon affidavits, but as such it was not within either of the subdivisions of section 465 of the Code of Criminal Procedure, for it was not' made for either of the causes for which, within that section, a motion for a new trial can regularly be entertained. [19] The motion was made upon the ground that after the jury had retired to deliberate upon their verdict, and while they were under the charge of the officer for that purpose, a note or communication was sent from one of the jurors to the recorder who presided at the trial; that it was taken by him, and some writing or note was made by him and sent back to the jury ; what this was—whether it related to the case, to the trial, the convenience or physical wants of the jury—was not made to appear ; in fact there was no intimation or evidence whatever from which it could be inferred that it related in any manner to the case which the jury at the time were considering. But if a statement of the fact itself had been inserted in the case, an opportunity would have then been offered to the recorder to make an explanation disclosing the nature and extent of the communication ; that was the course which regularly should have been pursued, for, as was held in Maurer v. People, 43 N. Y. 1, it was a part of the trial if the communication related to the case, and that course should have been taken regularly to present the point, instead of a motion for a new trial upon affidavits under section 465 of the Oode Criminal Procedure, for neither of the subdivisions under that section have provided for such an application. But assuming the application in this form to have been regular, it did not entitle the defendant to another trial of the issue; for that purpose it should have been made to appear with some degree of probability at least, that the note or communication sent to the jury had some relation to the case they were considering. It is riot to be presumed, in the absence of proof, that such was its character, for to indulge in that presumption, without evidence, would be to presume that the recorder violated his duties as a judge, and that presumption is not, without proof, to be entertained. The presumption of the law, on the contrary, is, that no official person acting under oath of office will do aught which is against his official duty to do, or will omit to do aught which his official duty requires should be done. Mandeville v. Reynolds, 68 N. Y. 528-534. And that the communication did not relate to the case, may be assumed from the denial by the recorder of the motion upon the affidavits for a new trial. For if it had, it was his duty [20] under the authorities then probably brought to his attention, to set aside the verdict, which he would undoubtedly have done if the communication had any relation whatever to the case. To set aside the verdict without such proof would also violate another equally settled rule of law, and that is, that error must not bepresumed, but must be shown ; and in all the cases, with one exception, where a like point has been considered, it was made to appear as a matter of fact that some communication was made by the justice or judge presiding at the trial, to the jury, in the absence of the party concerning the case. Maurer v. People, supra; Taylor v. Betsford, 13 Johns. 487; Plunkett v. Appleton, 51 How. 469. It is true that very broad language was used upon this subject in Sargent v. Roberts, 1 Pick. 337, but it must be ;understood and construed as addressed to the case which ,was then before the court, and that was a case in which an important communication relating to the issue which the jury had in charge was made to them after they had retired, and in the absence of the parties. Hoberg v. State, 3 Minn. 262, is the only exception to this rule which has been found relating to this subject. In that case it appears that the judge visited the. jury in their room, and that .was held to be improper, although it was made to appear that he was there simply to inform them that they must come into court if they required any further information. This is an extreme case, carrying a legal technicality to a point where it could be of no substantial benefit either to the accused or the public; for it was entirely evident that no possible injury could result to him, from what was shown to have taken place. This case has not been followed by any other authority, and the legal propriety of the decision has been doubted by a distinguished and reliable author upon criminal law (1 Bishop, 2 ed. § 1000), where it was stated that all the courts would not hold such an irregularity, where nothing wrong was meant, or shown, to be a ground for a new trial, even though the individual making the communication was an indifferent person. And that it should not be a ground for a new trial is further si^pported by the general law that official misbehavior, or the irregularities of jurors themselves, will not allow the verdict to be set aside where no injury has [21] been produced by it to the parties complaining. Com. v. Roby, 12 Pick. 496-519 ; Whelchell v. State, 23 Ind. 89; Harrison v. Price, 22 Id. 165. And this wholesome general principle has been made applicable to motions for new trials in criminal cases. For, by the language of section 465 of the. Code of Criminal Procedure, the verdict is only to be set aside on a motion for that purpose, where the substantial rights of the accused have been prejudiced by it; and by section 542 of the same Code,-it has been extended to the disposition of appeals, which are required to be determined without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. And 'as it is not to be presumed that the recorder was guilty of misconduct in sending the communication which he did to the jury, as he would have been if it related to the case, which it Was not shown to have done, these provisions are directly applicable to the disposition of this appeal. The inquiry of the jury may have been concerning the temperature of their room, the probability of its continuance, their desire for refreshments, or the length of time to which the sessions of the court would be extended, or some other subject connected with their own convenience ; for such inquiries are frequently made by jurors to the court, and as they do not relate to the case itself, are considered proper subjects of an informal answer. And they may be answered in that manner without in the least degree prejudicing any right or interest of the accused. If this was not a communication of this description, the fact itself should in some manner have been shown, and it could have been done by a direct inquiry of the recorder himself, or by including a statement of it in the case, when an explanation of the subject would have been pertinent and proper. Ho injustice is done to the accused by requiring certainly as much as that from him, before an application of this character should be allowed to prove successful. The public interest in the administration of. justice should not be defeated, as they would be by so extreme and technical construction of this act, as would be given to it if the inference should be drawn that the recorder had, as a fact, misconducted himself on this occasion. The facts themselves logically warrant no [22] such conclusion, and the rule established by all well-considered authorities precludes its adoption. The judgment, therefore, should be affirmed. Davis, P. J., concurs.