There was a verdict of guilty, and after sentence of death was pronounced it came to the knowledge of the prisoner's counsel that the jury had visited the scene of the alleged rape while they were considering the case, without the knowledge or consent of the defendant, his counsel or the court. An affidavit was filed by the prisoner to that effect and as a basis for a motion to set aside the verdict and for a new trial. His Honor found the following facts:
"The evidence in this case was closed on Saturday evening, 20 (534) February. The jury was put in charge of a sworn officer. It was agreed by counsel on both sides that the jury might attend church on Sunday in a body and with the officer and also take walks for purpose of recreation. On Sunday afternoon the jury started out for a walk, and, upon the suggestion of a juror, they walked down the railroad track to the red hill. After being there they went to view the surroundings and endeavor to locate the place where the rape was committed. There was some discussion as to the location of the place. They discussed the distance of Julia Williams' house, and also that of Arthur Williams, from the supposed scene of the rape with reference to the testimony at the trial. The officer in charge asked of a negro boy, at the suggestion of a juror, which was Anthony Perry's house, and then pointed it out to the juror. One of the jurors put his foot on the stubble near the track and said, "See! It makes no impression." A button was found, and a juror jestingly said it might be one of Annie Smith's drawers buttons, and it was discussed. At one time the jury was divided into groups. Three or four went of 75 or a 100 yards to the bushes temporarily. At no time were any of the jurors out of the view of the officer. A juror remarked that the house on top of the red hill was further than they thought it was. The jurors discussed the case while out there. The cedar spoken of in the testimony was seen. The railroad walked on is a thoroughfare. The place was not located, no one being present to identify it. The jury went to the scene of the rape without knowledge or consent of the court or of the counsel engaged in the cause." *Page 398
The evidence in the case was closed on Saturday evening, the visit of the jury to the locality was on Sunday, and the argument of counsel and charge of the court were on Monday.
His Honor refused to set aside the verdict, and the defendant (535) appealed. In Jenkins v. R. R., 110 N.C. 438, it is said: "The granting or refusal of the application for the jury to view the premises is a matter which rested in the sound discretion of the trial judge. On some occasions it may be very useful and, indeed, almost necessary. . . . The matter is one which must be left to the sound discretion of the trial judge, by whom such motion should only be granted when it shall seem clear to him that it is required in the interest of justice. But this practice is not to be encouraged." There are some States in which express statutes have been passed recognizing the right to grant a jury to view, but the authority inheres in the courts in the investigation of truth to call in this and other aids, and rests in the discretion of the presiding judge in the absence of constitutional or statutory prohibition. It is upon this principle that maps, photographs, expert evidence and the like have been admitted without express statutes authorizing it.
In the celebrated trial of Professor Webster for the murder of Dr. Parkman the jury was permitted to see the place where the crime was committed. Com. v. Webster, 5 Cush. (Mass.), 295; and this was also done on the trial of Cluverius, 81 Va. 787, in both instances there being no statute to authorize it. In S. v. Gooch, 94 N.C. 987, and other cases, it has been the recognized practice in this State. That excellent authority, Wharton's Cr. Pl. and Practice (section 707), says that the jury is permitted to visit the scene of the res gestae in criminal as well as civil cases whenever such visit appears to the court important for the elucidation of the evidence, but the visit must be jealously (536) guarded to prevent conversation with third parties." This is the accepted modern doctrine, and is founded on reason, as the object of a trial is to avail of every means to ascertain the truth of the issue, guarding against anything that may muddy its source.
Considered as an authorized inspection of the locus in quo, and as such counsel argued it, there was error; for it appears that the jury interrogated a passer-by as to the identity of a certain house whose distance from the scene of the alleged crime was material. The answer may or may not have been correct, and the query was based upon the assumption of a given spot as the immediate locality of the crime, *Page 399 which may have been erroneous. While there is a difference between the authorities as to whether or not the prisoner must accompany the jury on their inspection of the premises (Thompson on Trials, secs. 886, 887), all concur that evidence cannot be taken on such occasions, the object being merely to present to the jury the scene more vividly than is possible by the description of witnesses, so that the jury may with a better comprehension apply the evidence of the witnesses, which must be taken only in open court and in the presence of the prisoner. Under the settled practice, showers are appointed by the court to point out the localities merely, and no more, so the jury may apply the evidence received on the trial. Thompson supra, sec. 914; Bailey's Practice, 228; Archbold Practice, 407 (6 Eng. Ed); S. v. Lopez, 15 Nev. 407.
For a still stronger reason, it was error for the jury to receive evidence on this occasion, since, in fact, it was a view by the jury of the premises not under authority of the court. It ought rather, therefore, to be considered as a charge of misconduct by the jury. There are decisions that the bare fact of the jury having visited the scene of a capital offense with whose trial they are charged, though made without leave of the court, is not, per se, ground for a new trial, but that (537) some prejudice must appear. People v. Hope, 62 Cal. 291. But we are not called upon to pass on that point, as to which authorities conflict, for the interrogation of the passer-by was misconduct calculated to prejudice the prisoner. Hayward v. Knapp, 22 Maine, 5; S. v. Lopez,15 Nev. 407, in the leading case of S. v. Tilghman, 33 N.C. 513, it is held that where "on trial" the circumstances are such as merely to put suspicion on the verdict by showing not that there was, but that there might have been, undue influence brought to bear on the jury, because there was opportunity, the granting or refusing a new trial rests in the discretion of the presiding judge; but if the facts be that undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor or the prisoner, or if they be solicited and advised how their verdict should be, or if they hear other evidence than that which was offered on the trial; in all such cases there has been no trial in contemplation of law, and the court on appeal will, as a matter of law, direct a new trial, whether the prisoner was acquitted or convicted." This has ever since been recognized as law and has been repeatedly cited and approved. The jury having, by their questions to the passer-by, "elicited other evidence than that offered on the trial," it is ground for a new trial, equally whether the visit of the jury to the spot was by leave of the court or without such leave.
New trial.
Cited: S. c., 122 N.C. 1018; Brown v. R. R., 165 N.C. 396; Long v.Byrd, 169 N.C. 660. *Page 400
(538)