in delivering, the opinion of the Courts spoke nearly as-follows: The question whether a new tri *33al is to be granted to the prisoner, will depend on the facts disclosed by the affidavits, as to the misconduct of the two j urors, Lamb and S wartwout. It is alleged, that they separated from their fellows, while the jury were out under the charge of the constables, and ate, drank spiritous liquor, and conversed on the subject of the trial. Anciently the utmost rigor and strictness were observed in the manner of keeping the jury; and when once charged with a cause, they never could be discharged till they had agreed on their verdict; but the practice has been much relaxed in modern times, in both these particulars. In Parke’s case, (2 Roll’s Rep; 85,) at nisiprius, a juror was challenged and withdrawn, and afterwards went out, mingled with the jury, and stayed with them above half an hour; but the Court held,that this should not set aside the verdict, unless it was shown that the jury had new evidence given after they went out of Court; but that it was a misdemeanor in him who was challenged, and punishable.
On looking into the books, we do not find that mere separation of the jury has ever been held a sufficient cause for setting aside a verdict, either in a civil or criminal cause, if we except, perhapsj the case of the Commonwealth v. M'Caul, (Virg. Cas. 271.) The question has been learnedly examined in several cases,and especially in that of The King v. Wolf others, (1 Chit. Rep. 401.) That appears to be a case which excited very great interest, and led to the utmost research of the counsel, and the Court of Ring’s Bench. It was ably argued, and all the Judges delivered their opinions seriatim. It was the case of a trial for a conspiracy, which commenced on the morning of the 20th of April, 1819, at Guildhall, before Abbot, Ch. J. and continued till 11 at night, when the evidence being closed on the part of the prosecution, but the case being unfinished, the Court informed the jury that they might retire to their families; but especially warned them not to have any communication with any person, concerning the matter in issue. They retired accordingly, and the next morning assembled, heard the case through, and at a late hour in the afternoon found the defendants guilty. No abuse being pretended, the naked ques*34tion was presented, whether a separation, per se, was a sufficient ground for avoiding the verdict; and it was held, after great deliberation, that it was not. The Court admitted the ancient strictness which prevailed in this respect, but said it had been much relaxed ; that it frequently became necessary, from the very great length of modern trials, that the jury should separate; that from the mere fatigue and exhaustion which jurors frequently undergo, it is a course not only essential to the rights of the public, but of mercy to defendants, whose causes must be unsafe in the hands of a jury entirely shut out from comfortable refreshment and relaxation, perhaps for several days. Best, J. in particular, speaks of the same rule being applicable to trials for the highest criminal offences. “ Suppose (says he) in the case of a trial for capital felony, some of the jury, by accident, get out of the box, and the prisoner, in the result of the trial, is acquitted; the consequence of the argument for the prisoners would be a mis-trial, and the man must be put on his trial again.” (1 Chit. Rep. 426.) What the King’s Bench would have said of a capital case, it is true, does not directly appear : because the case under consideration was one of a misdemeanor. But the reasoning of the Judges is equally applicable to both cases ; and we think that the mere fact of separation, unaccompanied with abuse, should not avoid the verdict, even in a capital case. A decision was cited to this effect from Connecticut; but we do not rely upon that, because the latitude allowed to jurors, in all respects, is there very great, and their Courts do not profess to be guided in this practice by the rules of the common law. The decisions in this country are not uniform. Several cases were cited on the argument from the New Jersey Reports, in which the separation of the jury was held irregular, but not sufficient to vitiate the verdict. These cases were not capital; but they go strongly to support the general principle. State v. Carstaphen, (2 Hayw. 238,) was a ciiminal case, and the same doctrine was holden. The case of the Commonwealth v. M’Caul, (Virg. Cas. 271,) does, however, go the length of saying, that the Court should guard against the possibility of abuse, by setting aside the verdict, *35if any of the jury depart from the control of the officer; but the Court did not profess to go upon any adjudged case in England; and we think the English cases are founded on the better reason. These are uniform, that though the jury separate, if there be no farther abuse, this shall not vitiate the verdict though it would be a contempt of the Court, if contrary to their instructions, and would be punishable as such.
In the case at bar, the jury retired before the trial had closed, under the care of two sworn constables ; and it is alleged, on "the part of the prisoner, that two of them not only separated from their fellows, but also drank whiskey, and conversed freely on the subject of the trial.
Three of the witnesses, through whom it is sought to fix on Lamb and Swartwout the charge of having drank whiskey and conversed on the matter in issue, having deliberately contradicted what they had sworn as to conversations, I think they should not receive credit even for what they say in relation to the drinking of these jurors. Their testimony properly comes within the maxim, falsus in uno, falsus in omnibus. Besides, one of them is shown to have been a notorious drunkard himself. He was in a state of intoxication during most of the session, and at the very time when he pretends to have heard and seen things implicating the two jurors. But the case is very different with Wheeler, who thinks he saw both Swartwout and Lamb drink some kind of spiritous liquor while out. This witness stands unimpeached; and the exculpatory affidavit of Swartwout, one of the jurors, is not explicit. He confines himself to a literal denial that he drank whiskey ; but Wheeler’s affidavit that he drank some kind of spirits, may still be correct.
Admitting, however, that the weight of evidence is against drinking—admitting that Wheeler’s and Swartwout’s affidavits cannot be reconciled—I think that in a case of life and death, the question upon the misbehavior of the jury should be beyond all doubt. Clearly, we should disregard the fact of eating, as forming any ground for setting aside the verdict; for though this might be a contempt of Court, being without their leave, yet an opportunity to take *36reasonable refreshments would always be granted, at a pro. per season. an¿ the circumstance of their being obtained somewhat irregularly, could not prejudice the prisoner. But here the doubt is, whether there was not farther abuse, in drinking spiritous liquors. This should not be tolerated in any shape, in the jury, during the progress of the trial; and we have uniformly held, that it vitiated the verdict in a civil cause, even where the liquor was given to the jury by consent. It will not do to weigh and examine the quantity which may have .been taken by the jury, nor the effect produced. In this case, it is not at all probable' that either of these jurors was, in the least, under the influence of strong drink ; but being doubtful whether they may not have drank something, we ought not, especially in a case of life and death, to sustain the verdict.
We cannot lay down any general rule for all cases like this which may arise. They will be attended with different circumstances. We do mean to be understood, however, as saying, that the mere separation of the jury, without any farther abuse, is not sufficient ground for setting aside a verdict; though it may deserve severe reprehension from the Court. In this case, wé think there is not a total failure of proof that the two jurors drank, though perhaps the balance of evidence may be against it.