James v. State ex rel. Doss

Campbell, J., delivered the opinion of the court. The validity of the bond sued on in this case is maintained in the case of Harris et al. v. The State to use, etc., ante, 50, and upon the evidence submitted to the jury, without objection, the plaintiff was entitled to recover. The instructions, as applied to the evidence, are correct, but we feel constrained to set aside the verdict because of the failure of the court to comply with the request of the plaintiffs in error to “ poll the jury” on receiving the verdict. A verdict is the unanimous decision made by a jury, and reported to the court. Examining the jury by the poll is the only recognized means of ascertaining whether they were unanimous in their decision, and the right to do this must exist. It is affirmed in criminal cases, and is equally applicable in civil cases. In no other way can the right of parties to the concurrence of the twelve jurors be so effectually secured as by entitling them to have each juror to answer the question, “Is this your verdict f ” in the presence of the court and parties and counsel. By this means any juror who had been induced in the jury-room to yield assent to a verdict, against his conscientious convictions, may have opportunity to declare his dissent from the verdict as announced. Parties should have the means to protect themselves against the consequences of undue influences of any sort, which, employed in the privacy of the jury-room, may extort unwilling assent to a given result by some of the jury. Less evil is likely to result from upholding the right to have the jury examined by the poll than from denying it. The modern relaxation of the rules as to what irregularities of the jury will vitiate a verdict makes it more important to preserve the only allowable means of ascertaining if the verdict as announced is the unanimous decision of the jury. Fox v. Smith, 3 Cow. 23; Jackson v. Hawks, 2 Wend. 619; Johnson v. Howe et al., 2 Gilm. 342; Rigg v. Cook, 4 Gilm. 336. [60] The separation of the jury in this case did not vitiate the verdict. According to the old rule it would, but a sounder-view now prevails. 2 Gra. & Wat. on New Tr. 547. Judgment reversed, new trial granted, and cause remanded.