We cannot allow jurors, thus of heir own head, o drink spirituous liquor while engaged in the course of a ause. We are satisfied that there has been no mischief; *563*but tie rule is absolute, and does not meddle witi consequences. ¡Nor should exceptions be multiplied. We have set aside verdicts on error for this cause, even where the parties consented that the jury should drink. The People V. Douglass, though a criminal cause, is in point for the principle of this motion, which must be granted, the costs to abide the event of the suit.[1]
The district Mt°rtoyattend the grand jury, except to advise them on request.Motion granted.
The district attorney of the city and county of Albany, having claimed the right to be present with the grand jury, an¿j to conduct the examination of witnesses; and the court . . . ' of sessions being divided in opinion on the subject, it was submitted to this court.
Curia. The district attorney ought not to attend the grand jury for the purpose of examining witnesses, nor for any other purpose, except to advise them upon any question which they may put to him in relation to their duty.;
Where a jury, empannelled to try a prisoner upon an indictment for murder, were allowed to leave the court house during the trial, under the charge of two sworn constables, and two of them separated from their fellows, went to their lodgings, a distance of thirty rods, ate cake, took some with them on their return, and drank spirituous liquor, though not enough to af feet them, and one of them conversed on the subject of the trial; held, that the drinking of spirituous liquor, and the conversing on the case, were sufficient reasons for a new trial. (People v. Douglass, 4 Cowen, 26.) But, in U. S. v. Gilbert, et al., (2 Sumner. Rep. 21,) judge Story held, in a capita case, that it was not sufficient for the purpose, to show that some of thi jurors drank ardent spirits during the trial, when the prisoner’s counsel con sented in open court, to this indulgence, to those whose health might re quire it, unless it was also shown that the indulgence was abused, and .ope rated injuriously to the prisoner. And see Stone v. State, (4 Humph. Rep. 27.)
See further on this subject, Waterman’s Archbold’s Pr. & Pl. tit. Net