Packard v. United States

Opinion by

Hastings, C. J.

In this case the plaintiff was indicted for perjury, and found guilty as charged in the indictment, and fined one dollar, and sentenced to be imprisoned one hour.

This case is brought into this court by writ of error, and plaintiff has assigned fourteen errors. We will consider only the fifth assignment of errors, not deeming it important or necessary to pass upon the other errors assigned.

The fifth assignment is as follows : “ The court below, erred in refusing to receive the oaths of jurors, in support of the affidavit of the said Packard, which affidavit sets forth that the jury entirely misunderstood the instructions of the court.”

After the jury returned their verdict, the defendant filed his motion to set the same aside, and to grant a new trial; and also in arrest of judgment. And in support of his motion, assigned the reason that the jurors misunderstood the instructions of the court; filed his own affidavit of the fact, and proposed to prove the same by several of the jurors.

The defendant based his motion on many other reasons, and the court overruled the motion. Whereupon the defendant took exceptions, and embodied the evidence and motion in a bill of exceptions.

The defendant was found guilty by the jury, as he stood charged in the indictment, of the crime of perjury, one of the highest crimes in the criminal code ; and to punish the defendant for such a crime, the jury assessed a fine of one dollar, and imprisonment of one hour. The fine and imprisonment assessed by the jury are inconsistent with that part of the verdict finding the defendant guilty, as he stands charged in the indictment; and although for this reason alone, the court would not' bo authorized to set aside the verdict of the jury, yet we may reasonably presume that the jury labored under a misapprehension of the facts submitted in evidence, or a misunderstanding of the instructions of the court; and we think the court erred in refusing to receive the oaths or affidavits of the jurors, in support of defendant’s affidavit, that the jury misunderstood the instructions of the court. It is true that courts ought not to receive the affidavits of jurors, to impeach the conduct of their follows, but they may be received to show misconduct of the parties. Denn, ex dem. Cheins v. Driver, Coxe, 109. From a careful examination of the authorities referred to in plaintiff’s brief, we have no doubt that in a criminal case, affecting the life and liberty of the accused, the court ought to receive the testimony of jurors as to any palpable misapprehension of the instructions of the court, as no person is so competent as the juror himself, to prove a misunderstanding of the charge of the court, especially when, as in this case, the defendant shall make his affidavit in open court, and show therein that the court instructed the jury so unintelligibly, or that the jury so misunderstood and misconstrued the instructions of the court, that a verdict of guilty is found against him, when by the law and evidence he should have been acquitted.

We are of the opinion also, from an examination of the evidence in the bill of exceptions, that defendant’s motion to set aside the verdict and grant a new trial, should have been granted; and that the majesty of the laws would suffer far less, and be much better sustained, by an acquittal of the defendant, than by encouraging the pernicious example of such a verdict, assessing a fine and imprisonment so inadequate to the turpitude of the crime.

We are sustained in the above opinion by the decision in the case of State v. Hascall, 6 N. Hamp. 352, in which the question about the testimony of jurors was fully discussed, and numerous authorities reviewed.

And therefore, the judgment and proceedings of the district court, subsequent to the plea of the defendant, and the making up the issue to the country, must be reversed and set aside, and the case remanded with instructions to award a venire de novo, and proceed to trial with the issue.

Judgment reversed.