This was a conviction in the circuit court of Oktibbeha, under an indictment for grand larceny. A'motion was made to set aside the verdict, and to grant a new trial,' which was overruled, and exceptions taken. The errors alleged to have occurred in the trial relate to this action of the court.
It appears, from the bill of exceptions, that after the jury had retired'from the. court to deliberate upon their Verdict, and before they had agreed, the bailiff, "to whose charge they were committed, said to them that “ unless they decided the case one way or the other, they should have nothing more to eat, and no water to drink.” This communication was made without authority, and was intended as a jest. Some of the jurors so understood it. Others, however, although not so informed, appear to have been under the impression that the’bailiff acted by order of the court. This conduct of the officer is' assigned as the first ground in support of the motion. " And it is insisted that the' declaration which he made to the jury, under the circumstances, ’ had, or might have had, an effect upon’ them prejudicial to the accused.
The conduct of the bailiff was improper and illegal. It was in violation of the express language of the statute, Eev. Code, 504, Art. 156. But the, immediate question to be considered is not whether the officer was guilty of a violation of the law, but whether the communication made to the jury was calculated to have an influence upon, their deliberations. prejudicial to the parties on trial. For it is not now to be controverted, that it is not every improper or illegal act of the officer in charge of' the jury, or of the jurors themselves, which will constitute just, cause for setting aside the verdict.1
*1160Whs there an impression upon the minds of the jury which would improperly influence their verdict, the natural or necessary effect of the declaration made to them by the bailiff’? If it were not calculated to produce such an effect, there can be no pretense for asserting that for this cause a new trial should be granted.
An officer placed in charge of the jury, under these circumstances, has no authority to furnish them with food or drink of any description whatever. If he should do so without the express command of the court, it would be a palpable violation of his duty. Whether, therefore, in this instance the jury were supplied with refreshments or not, did not depend on the volition of the bailiff’. And the supposition is not to be indulged that either the officer or the jury was ignorant of the law. It cannot, therefore, be assumed that the declaration of the bailiff that the jury should have no more food or water unless they decided the case one way or the other, if understood to be made without authority from the court, could have had the least influence upon their deliberations. And it will not be contended that if the bailiff acted by authority, there is just ground for suspecting the purity of the verdict. But admitting, for the purpose of argument, that the jury in fact believed that it depended solely on the will of the bailiff whether they were furnished with refreshments or not, it is not readily perceived in what way the communication of the bailiff could have influenced the verdict either for,or against the accused. It might furnish a motive which would accelerate a concurrence of the jury; and, going farther, and admitting that the motive thus presented might bo sufficiently potent to overcome their convictions of guilt or innocence of the accused, it is nevertheless manifest that its tendency would not be greater to produce a concurrence as to his guilt than as to his innocence. Indeed, it may be safely assumed, that if such a motive is allowed to have place *1161in the breast of a juror, it would operate generally in favor of the accused, particularly in prosecutions where the death penalty is attached to a conviction. For we can scarcely imagine a human being so' depraved, who, placed in the supposed alternative,- would not .consent to the escape of a felon more readily than he would agree to become, the judicial murderer of one whom he believed to be innocent. Anciently, at common law, after the jury were charged, and had left the court to consider of their verdict, they were kept together, without communication with others, and without refreshments of any kind. These rules are still, with more or less rigor, enforced in several of the states of this confederacy. In this state they have been greatly relaxed, particularly in regard to the supplying of juries with proper 'refreshments after they have been charged and placed in the keeping of an office!’. "We do not question the policy of the modification which has been introduced. But it is certain that they have not proceeded from a conviction in the minds of our legislators that in prosecutions for felonies the rule at common law, which excluded the jury, during the hours of its deliberations, from all refreshments, tended to produce improper convictions. And in view of all the rules which have been adopted for the purpose of insuring impartialityin the verdicts of juries, the suggestion is a, novel one that the purity of the verdict is to be suspected if the jury deliberate under the impression that they are not to be furnished with refreshments. Upon the whole, we are well satisfied that this ground for the motion •was untenable.
It appears, further, that, at the suggestion of one of the jurors, who was a physician, the bailiff carried “ liquor ” in a bottle into the jury-room for another one of the jurors, who was sick. This was done without the knowledge or permission of the court. The juror who was sick drank of the “liquor.” The bailiff did not see any other person drink, but did not know that no one else drank. The bottle of liquor was in the room a very short time, during which the bailiff was present, who carried the bottle with him.
Drinking, in any shape, is not to be tolerated in a jury, during the progress of the trial. The conduct and acts of the *1162juror, as well -as those of the bailiff, were, therefore, highly reprehensible. ’■ But the true point of inquiry ' here is ' not whether these parties were guilty of improper and illegal com duct, but whether, by such conduct,, the verdict -was improperly influenced. If, indeed, the evidence closed with the proof of the naked fact that ardent spirits, in quantities sufficient to jproduce intoxication, were conveyed by the officer into the jury-room, we should feel no hesitation in holding that the conviction should be set aside. Upon such proof there would be ground for suspecting the purity of the verdict. And where facts are established which show 'that improper influences might have been brought to beak upoix the jury, and there is no opposing testimony which negatives the presumption thus created, according to the settled rule of this - court the verdict will be deemed vicious. Hart’s case, 4 How., 192; McCann’s case, 9 S. & M., 469; Organ’s case, 26 Miss. R., 18; Ned and Taylor’s case, 33 ib., 370. The rule applicable in all cases of this char-' acter, and which has been uniformly recognized’ in this court,is laid down in McCann’s case, above quoted, as follows: “ The évil to be guarded against is improper influence',- and where an exposure to such influence is shown, and it is not shown that it' failed of effect, then the presumption is against the purity of the verdict.” ■ • ■ - • ' - ■
The evidence in regard to' this point, we think, clearly Shows that lió effect could in any way influence the verdict resulted from the introduction of the bottle of “ liquor into -the jury-room. The officer does not in express terms state that no juror except the sick man drank of the brandy. But as he remained in the room during the whole time the bottle was' there, which ■was á very short lime, and'did not see any other juror drink,: siich is the effect of his testimony. Under these' circumstances,' notwithstanding the irregular and' improper conduct of the' bailiff and the juror, there is no pretense for asserting that the verdict should be disturbed. • ;
There is Another point made-upon-the introduction of the; jurors as witnesses on the'trial of the motion for a new trial: It is not to be questioned that their testimony was incompetent. Organ v. State, 26 Miss. R., 83. But as the presiding judge-did *1163not see proper to prevent tbeir examination, and as no exception was taken to the introduction of their testimony, we cannot notice the objection.
Judgment affirmed.
Harris, J., gave no opinion, having piesided on the trial of the case in the court below.The general rule is that the verdict Trill not he set aside on. account of the misconduct or irregularity of a jury, even in a capital case, unless it he such as might affect *1160their impartiality, or disqualify them for the proper exercise of their functions. Com. v. Roby, 12 Pick., 496, 519; People v. Douglass, 4 Cow., 26; State v. Babcock, 1 Conn., 401; State v. Prescott, 7 N. H., 290; Beebee v. People, 5 Hill, 32; Tooel v. Com., 11 Leigh, 714; Martin v. Com., 17 Leigh, 745; McCarter v. Com., 11 Leigh, 633; Rex v. Woolf, 1 Chitty, 401; Stone v. State, 4 Humph., 27; Whitney v. State, 8 Mo., 165; State v. Fox, 1 Geo. Decis, 35; State v. Peter, ib., 46; State v. Barton, 19 Mo., 227; State v. Igo, 21 Mo., 459.