dissenting:
I am constrained to withhold my assent to the conclusion reached by the court in this case.
The paramount object of the law, especially in trials involving the life or liberty of. a citizen, is to guarantee a fair trial, without which one accused of crime ought not to- be convicted. This has been so often repeated by law-writers that no citation of authority is needed for the support of the proposition.
*818Indeed, the opinion of the court says: “It is much to be desired that courts and juries should hear and determine causes, submitted to them, especially those -which involve the life or liberty of the citizen, free from all extraneous influence of whatever character; that the trial should be guided and directed by the ‘cold neutrality of an impartial judge,’ and that the jurors should act without fear or favor, with 'an eye single to meting out justice regardless of all except the law and the evidence. But suich an ideal is impossible to attain, and unhappily that class of cases most likely to stir the passions and sway the judgment of jurors’ appeals to the sympathies of the community, and the day of trial finds a crowded court-room. With such an environment it is impossible that the jury should be unconscious of its influence. All outward expressions may be repressed, but. its subtle force will be felt despite all efforts to curb and restrain it. ...”
• I agree, as the opinion further says, that under such conditions, much must be left to the judgment of the trial court, but I do not agree that such conditions as are described and, as existed in the court-room during the trial in this ease, may exist, and it still 'be said that the accused has had the fair trial to which he was entitled under the law. An “ideal” trial may not be 'attainable, but if all the precautions known to the law are taken, a fair trial may be had in every case; and never in the history of our jurisprudence was it more essential that all precautions against an unfair trial in. a case of this character be taken than at the present day.
That the learned and conscientious judge who presided at this trial did all that he considered to be necessary to secure a fair and impartial trial, I do not question for one moment. But, as an appellate court, we are called upon to review the record of the proceedings, and to determine the question addressed to our judgment whether or not such a result has been attained.
I concede that the relationship, by aifinity, between the juror *819Jennings and the prosecutrix was not of itself sufficient to justify the setting aside of the verdict and awarding a new trial, but the declarations of that juror before the trial may well be considered in determining whether or not the jurors have acted “without fear or favor with an eye single to meting out justice, regardless of all except the law and the evidence.” The declarations of this juror but gave expression to the sentiment wide-spread in the community, demanding the conviction and severe punishment of the accused, founded not upon the facts as to what had actually occurred, but upon the enormity of the crime suggested, and that sentiment and demand culminated in a gathering in the court-room during the progress of the trial . “until it was filled to its capacity” with citizens who manifested a strong sympathy with the prosecution. The record discloses that before the sentiment referred to had reached the violent state to which it ultimately went, neither the prosecutrix nor her parents were of opinion that so grave am offence had been committed by the accused as he was afterwards tried for, and that, but for the failure to send a letter of apology or explanation by a special messenger instead of by mail, it is more than probable that the prosecution would never have come to a trial.
The trial lasted two days. On the first day the demonstrations. of the crowd ’facing the jury were such as to call forth a rebuke from the presiding judge, and a threat to clear the court-room, but the crowd remained until the second day, when their demonstrations became so pronounced that counsel aiding in the prosecution in the midst of his argument, feeling keenly the injustice to the accused, and their derogation of the good order and fairness of the trial, turned upon the crowd and administered to them a rebuke by calling their attention to the fact that they were in a court of justice, and that such manifestations were improper. The’ crowd remained to the end of the trial, the only precautions taken during its last stages being *820a threat from the court to clear the court-room, aud the placing of policemen among the crowd to prevent ,a recurrence of the demonstrations, and to detect the offenders.
The Legislature, in its wisdom, has provided, in the interest of good order, and fair and impartial trials, that the courtroom may be cleared of any and all persons whose presence is not deemed necessary. This, it is true, leaves the matter in the discretion, of the court, but, as the opinion of this court further says.: “Where it has failed to exercise its discretion with becoming vigor, or the public has been so violently excited as £o overawe the jury and afford ground for the belief that justice has not been done, it would be the duty of this court to set aside the verdict.” . . . Just here is the point at which I differ with my brethren. They take the view that “the case before ns is not such as to- demand or justify interference on our part.” I take exactly the opposite view.
Recognizing the necessity for greater precautions against a violently excited public, overawing jurors in trials involving the life or liberty of the citizen, the statute adverted to was enacted,, authorizing the clearing of the court-room o-f angry or excited crowds during such trials, and intending also-, it is true, as a protection to the feeling of those whose presence is neccessary to a trial like this, as well as to exclude persons of tender years who should not he permitted to hear such trials; and this wise provision of -the law merits, if indeed it does not demand, a rigid enforcement by the court, that the -citizens of every community within our borders may be made to understand that, no matter what the offence for which the life or liberty of the citizen is put in jeopardy, he is to have that fair and impartial trial that the-law designs he shall have.
It is not necessary to a new trial that it be shown that undue-ox extraneous influence, any more than illegal or irrelevant testimony, had its effect upon the jury. It is enough, if it appears that the jury may have been so affected or influenced. The *821manifestations of an excited crowd, such as took place during this trial, were hut expressions of opinion that the prosecution should result in the conviction and punishment of the accused. The effect, in my judgment, is the same in such a case as in one in which the mere opinion of a witness, or illegal or irrelevant testimony, which may have had its effect, has 'been allowed to go to the jury. The object sought in excluding mere opinions, improper or irrelevant testimony, in isolating the jury, and in preventing communications by third persons, is to prevent the jury from being biased by any extraneous influence.
As it seems to me, especially in cases like this, no influence is so potent, so well calculated to improperly influence the minds of the jury, as the consensus of public opinion repeatedly expressed in their very presence. This has been so fully realized by trial judges that it has become almost, if not altogether, a universal practice to exclude the newspapers of the day from the jury during a trial of felony cases. Precautions such as this, and the clearing of the court-room of a crowd manifesting their opinions by applause or otherwise, cannot he overestimated, or he too rigidly enforced, in trials of this character.
In speaking of illegal evidence in Payne's Case, 31 Gratt. 855, the court said: “We cannot say what effect this illegal evidence may have had on the minds of the jury. It was well calculated to influence them. In such a case the rule of this court is that the judgment must he reversed.” Again, in Joyce v. Commonwealth, 78 Va. 287, speaking on the same subject, it was said: “It was irrelevant, and calculated to> excite and mislead the jury, and so prejudice the prisoner. If he may have been so prejudiced, though it is doubtful whether he was so or not, that is sufficient ground for reversing the judgment.” Citing Payne’s Case, supra.
The same view is taken by the court in the civil case of So. Mu. Ins. Co. v. Trear, 29 Gratt. 259.
"While these citations are hot entirely in point, no other deduc*822tion can be drawn from them than that it is not bemuse of the possible effect of the undue influence upon the jury, nor because of its nature or name, but, if any unlawful influence might have had the effect of prejudicing the cause of the defendant with the jury, whether it be illegal or irrelevant testimony or other undue influence, such as was brought to bear upon the jury in this case, a new trial must be awarded. In other words, whether the improper influence brought to bear upon the jury, be in legal or illegal form, and it appears that such influence may have affected the result, the verdict should be set aside. W'hy the precautions that the law takes, in all felony cases, of requiring the veniremen to be secured from a locality remote from the scene of the alleged offence; that they be examined on their voir dire to ascertain, if possible, if they have any bias or prejudice, &c., or have formed or expressed an opinion as to the guilt or innocence of the accused; that the officer in charge of the jury be under his oath required to keep the jury together and not speak to them (himself, nor suffer another to speak to them touching the trial, if it is not for the purpose of keeping the jury freed from all influences beyond the evidence in the case? Why these precautions, if the influence of the sentiment of the community in which the offence is alleged to have been committed, or of the public generally, may be brought to bear upon the jury, by demonstrations repeatedly made, as in this case, by an excited and infuriated crowd, unmistakably giving expression to the opinion that the accused is guilty, and should be severely punished?
It is not a sufficient answer to say that “it is not to be assumed that the jury would violate their oaths and render a verdict upon what occurred in the court-room in the way of demonstrations from the crowd, which the jury knew perfectly well were not evidence,” any more than the answer that it is not to be assumed that the jury would violate their oaths and render a verdict influenced by illegal or irrelevant testimony, or mere opinions of *823witnesses which have been improperly allowed to go before the jury.
That the nndne influence operating upon the jury at the trial of this case, spoken of in the opinion of the court and here, not only may have had its effect upon the jury, but in fact did have, is to my mind apparent from the record.
Of the charge made in the indictment the jury acquitted the accused, but found him guilty of an assault and battery—a purely technical offence—fixing his punishment at one year’s imprisonment in jail, and a fine of $1,000, a fine double the limit fixed by statute, (sec. 3671 of the Oode,) for the crime of shooting, etc., with intent to kill; by sec. 3672 for the crime of shooting, stabbing, etc., in the commission of or attempt to commit a felony; and by sec. 3706, for entering a dwelling house, etc., with intent to commit larceny, or any felony other than murder, rape or robbery, blot only is the fine double the limit fixed by law for the offences just mentioned, and for other grave offences, but is imposed upon the accused, a young man just twenty-one years of age, in the face of the uncontroverted fact that he hasn’t any estate whatever out of which to pay it. True, as the opinion of the court states, there is no express statutory limit to the fine that a jury may impose for a misdemeanor, bu!t, as it seems to me, when considered in the light of the declaration, found in our bill of rights, that excessive fines ought not to be imposed, and in view of the fact that the Legislature has limited the fine that may be imposed in felony cases to $500, it cannot be supposed that it was contemplated that, by vesting the jury with discretion, in misdemeanor cases, the Legislature conferred upon the jury the uncontrollable right to inflict greater punishment than had been fixed by statute for a felony.
The rule, as old as the written law, is that a fine must have reference to the estate of the defendant. As stated by Mi\ *824Blackstone: “What is ruin to one man’s fortune, may be a matter of indifference to another’s.”
I shall not review the evidence in the record. Suffice it to say, it does not impress me as it seems to have impressed the majority of the court.
By their verdict the jury have said that the accused, in what he did, was not moved by a desire to take undue and indecent liberties with the prosecutrix, and thait his actions were unaccompanied 'by suich intent. If, therefore, regarding her as a child, with whom he had prown up on the most intimate terms, and with whom he had previously romped in very much the same manner (as it is conceded he had) he did the acts complained of, from no improper motive, and without evil intent, the punishment meted out to him must appear to any unbiased mind as harsb and unreasonable.
The circumstances and facts surrounding the trial, as shown by the record, not only justify, but impel, as I conceive, the conclusion that the punishment was not the result of the candid and unbiased judgment of the jury. [Restrained by conscience and the evidence from pronouncing the accused guilty of the charge made against him, the jury so far yielded to the pressure brought to bear u|>om them as to impose a harsh and an unreasonable punishment for a purely technical offence.
Bor the foregoing reasons, I am of opinion that the accused should be awarded a new trial.
Affirmed.