delivered the opinion of the court
The facts on which the new trial is moved for, as established by the affidavits are simply these: that while the jury were consulting together of their verdict, one of them called the officer having them in charge and said to him, “ ask the court to send the jury the statute or some book containing the law of manslaughter,” that the officer after a short interval returned and said, “ Judge Edmonds said they had nothing to do with manslaughter.”
The officer was not instructed by the court or any member of it to make any communication to the jury, but it is probable (though on that subject there is no evidence), that w^hen the officer made the application for the book, the judge refused it in the language used, and the officer instead of refusing to speak to the jury — as he ought to have done, having no leave from the court; or instead of saying to the jury “ you can not have the book,” — conveyed the refusal to the jury in the words used by the judge in giving it to him.
For the communication thus improperly made by the officer to the jury without authority from the court, a new trial is moved for, and the question is whether the irregularity is one ■which renders the verdict void.
If such is the rule of law, it must be rigidly enforced, however untoward the event which works such a'r&sult. Of the prisoner’s guilt of the crime of murder, not a doubt can remain *259on any rational mind, and there is every reason also to believe, that that crime was perpetrated while he was attempting another — that of robbing his benefactors. And so, too, it is equally manifest that if a new trial is now granted, the prisoner must escape the punishment which the law denounces upon the crime he has committed, for the witnesses by whom alone the facts can be proved have left the country and returned to the interior of South America, whence their testimony can not be procured so as to be used on the trial. And it is under such circumstances that the court is called upon to recognize the principle, that an unauthorized communication to the jury by the constable having them in charge, renders their verdict void.
If this be so, then is the due administration of justice more under the control of the ignorance or corruption of the constables who are in attendance at the court, than has been hitherto supposed.
I dismiss from view entirely the consideration how far the communication influenced the jury; and for two reasons.
In the first place, while one of the affidavits on the part of the prisoner conveys the idea that but for that communication, one of the jurors “ could never have reconciled it to his conscience to concur ” in a finding of murder, the affidavit of the same juror and those of nine of his colleagues produced on the part of the prosecution clearly establish that the jury were already unanimous in their opinion that the prisoner was guilty of murder; that the question of manslaughter was agitated among them merely from “ a repugnancy ” on the part of the juror “ to taking human life;” that all of them had previously very distinctly understood from the charge of the court, that there was no question of manslaughter in the case, and that their verdict was in no respect affected by the communication.
In the second place, while the affidavits were admissible to prove an impropriety on the part of the constable, they were in no respect admissible to prove any on the part of the.jury; and it surely would be an impropriety of a high character, for a jury to take the law of a case from the constable at their door
*260I therefore examine the question in its naked aspect, whether, as matter of law, such a communication does necessarily render the verdict void.
It is undoubtedly true that any communication to a jury while deliberating, made by a party in whose favor their verdict is rendered, will avoid their verdict, and that, no matter whether it had any effect upon their minds or not: for the best of reasons, that it is thus alone the purity of the trial by jury can be preserved. But we were shown no case, though we asked for one, where such an effect has ever been given to a communication made by the losing party or by a stranger to the controversy, nor can I, by my own researches, find any such. And, as I suppose, for an equally good reason: that it would be giving to intermeddlers a power and control over the administration of justice that is denied even to the courts.
It is not worth while to spread out here the details of the examination which I have made. I have given the subject the careful consideration its vital interest to the prisoner demands, and the conclusion at which I have arrived is quite satisfactory to my own mind, both on principle and authority.
A reference to two or three cases will be sufficient. In the case of Taylor v. Everett (2 How. Pr. R. 23), our late supreme court held that a communication made by the constable to a juror, which the juror swore induced him to agree to the verdict, was not enough to set it aside, though the conduct of the constable was deserving of severe animadversion. In Harrison v. Rowan (4 Wash. C. C. R. 32), the jury after they- went out took refreshments without leave of the court. The court held it was misbehavior to do so, but the verdict would not be affected, unless they were furnished by the party in whose favor they found. So, where a juror had left his seat without knowledge of the court or either party. (Ex parte Hill, 3 Cow. R. 355.) So, too, when the jury had retired to deliberate on their verdict. (1 Cowen, 221.) In the case of The King v. Wolfe (1 Ch. R. 401), where the subject was very fully examined by the English judges, and in The People v. Douglass (4 Cow. 33), in our own state, it was held that the mere separation af *261the jury, without any further abuse, would not affect the verdict.
And in Everett v. Youells (4 Barn. & M. 681), where the servant of one of the jurors privately conveyed some food to him while they were deliberating, the court held that it might be ground for imposing a fine, but it was not a reason for setting aside the verdict, and Parke, J., with great propriety says: “ The officer who attended the jury may be punishable, but it would be a fearful thing if verdicts could be set aside on such grounds as this.”
It would be so indeed, and this case would be a strong exemplification of the truth of the remark. Here is no complaint that the prisoner was not rightfully convicted or that the verdict was not fully warranted by the evidence, no complaint that the law was improperly laid down by the court. The jury were unanimous in a verdict, which the court has already had occasion to express its approval of. The witnesses by whom alone the prisoner’s guilt can be established, are beyond the jurisdiction of the court. It was a frightful crime which the prisoner committed, and it is now claimed that he shall escape the con sequences, because the constable in charge of the jury was guilty of an impropriety! This can not be. Both principle and authority forbid it.
I purposely abstain from examining the other questions raised on the argument, because having on the merits arrived at a conclusion adverse to the motion, it must be denied, whatever our views upon those- other questions.