Lipscomb v. . Cox

Brogden, J. When must the poll of a jury be taken? The right of either party to poll the jury in both criminal and civil actions is firmly established by the decisions in this State. The predominant purpose of the poll is to ascertain if the verdict as tendered by the jury is the “unanimous verdict of a jury of good and lawful men in open court,” as prescribed by the Constitution, Art. I, sec. 13, for criminal causes. One of the first cases dealing with the subject is S. v. Young, 77 N. C., 498. The Court held: “When the verdict has been received from the foreman and entered, it is the duty of the clerk to cause the jury to hearken to their verdict as the court has it recorded, and to read it to them and .say: 'So, say you all.’ At this time any juror can retract on the ground of conscientious scruples, mistake, fraud, or otherwise, and his dissent would then be effectual.” It is held to the same effect In re Sugg, 194 N. C., 638: “The right to poll the jurors is recognized, in order that it may be ascertained whether or not the verdict as tendered is the unanimous decision of the jurors. If it is found by such poll that one juror does not then assent to the verdict as tendered, such verdict cannot be accepted, for it is not as a matter of law the unanimous decision of the jury.” In Trantham v. Furniture Co., 194 N. C., 615, the Court said: “The verdict of a jury is sacred. It should represent the concurring judgment, reason and intelligence of the entire jury, free from outside influence from any source whatever.” The decisions of this State establish the principle that the verdict of a jury, to .be effectual, must be free from outside influence of whatsoever kind or nature. Wright v. Hemphill, 81 N. C., 33; Petty v. Rousseau, 94 N. C., 362; Mitchell v. Mitchell, 122 N. C., 332; Lumber Co. v. Lumber Co., 187 N. C., 417; Alston v. Alston, 189 N. C., 299. The trial judge found “that any discrepancy existing between the verdict and the poll of jury was due to remarks made by counsel heretofore referred to.” The jurors were not asked as to whether the verdict tendered was their verdict before the discussion took place in open court between counsel and the judge. If it had appeared that the verdict' as tendered was the verdict of the jury upon its return to the court room and that five members of the jury had changed their minds since the discussion, then certainly the verdict tendered as a matter of law should be upheld. But this essential fact does not appear. Indeed the colloquy between one of the jurors and the trial judge would indicate that the issue as to contributory negligence was answered by some members of the jury under a mistake of fact, to wit, that if the second issue was answered “yes,” the court-would fix the compensation to be awarded the *506 plaintiff. Verdicts, in order to inspire confidence in the integrity of the courts, must at all times be above suspicion, and in this uncertain state of the record we are constrained to bold that a new trial should be awarded. However, it should be clearly understood that the right to poll a jury can be waived, S. v. Toole, 106 N. C., 736, and that the poll of the jury must be bad immediately upon the return of the verdict in open court and before debate or discussion thereof, or debate or discussion of the merits of the case upon motion to set aside the verdict or otherwise. Unless this procedure is strictly observed by trial judges, it is quite evident that a poll of a jury, after spirited discussion of the verdict, or of the merits of the case, in the presence of a jury, would result in confusion and uncertainty, and thus retard and impair the due administration of the law. Affirmed.