Eastwood v. The People. expressly approves of the case of The Commonwealth v. McCaul. In reference to that case he says: "The separation of the jury in that case was not under more exceptionable circumstances than in this; neither was there proof of any actual tampering or conversation .on the subject of the trial with the jurymen. The court held that it was not necessary that this should be proven in order that the verdict should be set aside and a new trial granted. This decision is, we think, supported by English authority." A few years later, the case of Overbee v. The Commonwealth (1 Robinson, 756) occurred in Virginia, in which the court having given five of the jurors leave to retire for a few minutes, attended by an officer, a sixth started after them unobserved by the court. This juror not returning with the other five, an officer was immediately sent to bring him in, which he did about a minute afterwards. There was a crowd about the door, but the juror testified that he held no communication with any one; and yet the court set aside the verdict. In the case of Hines v. The State (8 Humph., 597), one of the jurors absented himself from the others ten or fifteen minutes. He testified that his absence was owing to indisposition, and that he had no communication with any one; but the court nevertheless granted a new trial. The Supreme Court of Mississippi, in the case of McCann v. The State (9 Smedes & Marsh., 465), held, upon an indictment for murder, that when any portion of the jury have separated from the others and had intercourse or opportunity of intercourse with third persons, and it shall not affirmatively appear that no effect was produced upon the jury by such exposure, and the possibility of undue influence be not wholly negatived, the verdict will be set aside. In the subsequent case of Boles v. The State (13 Smedes & Marsh., 398), which was also an indictment for murder, and in which, while the jury were deliberating, a barber had been admitted to their room and remained an hour or more, Eastwood v. The People. and the jury had sat by the side of others at the table; the same court set aside the verdict, although the officer testified that he had heard no one speak to the jury about the case, and there was no proof that a word had been said by the barber on the subject of the trial. In the case of Peiffer v. The Commonwealth (3 Harris, 468), in which the prisoner was indicted for the murder of his wife, after the jury were sworn, in consequence of a press of business in the quarter sessions, they were allowed by the express authority of the court, and with the consent of the prisoner's counsel, to separate and go to their respective homes, under an arrangement that they should return on a particular day of the term to attend to the trial. The prisoner was convicted, and, upon writ of error, the conviction was reversed and a new trial ordered. The Supreme Court of Tennessee also held, in the case of Wesley v. The State (2 Humph., 502), that a circuit court has no power in a capital case to authorize the separation of the jury, even with the consent of the prisoner and the counsel for prosecution. These cases when combined produce a weight of authority far greater, in my view, than would be required to overbalance the obiter dicta of the two judges in the case of The People v. Douglass. They establish incontrovertibly the doctrine that, while in civil cases and cases of misdemeanor, if the jury separate, either with or without the leave of the court, it will not vitiate the verdict, without additional evidence of irregularity or abuse, yet that in criminal cases of higher grade, and especially in capital cases, such a separation, for however short a time, will be fatal to a verdict against the prisoner, unless it is shown affirmatively on the part of the prosecution, by the clearest evidence and beyond a reasonable doubt, that no injury to the prisoner could have occurred in consequence of the separation. Let the present case, then, be tested by these principles. We will look first at the irregularity disclosed by the Eastwood v. The People. affidavit of Fielding. It is undisputed that Murray, one of the jurors, separated from his fellows, entered the so-calledStillson block, in which he resided, and was absent, according to the statement of Fielding, in which he is confirmed by Targee, the constable, five minutes. During this time he was beyond the observation either of the constable or of any of his fellow-jurors, and the only explanation of what had occurred is from his own affidavit. It was once held that the affidavits of jurors could not be received at all to repel a charge of irregularity. In the case of Taylor and Webb, which arose in 1653, a motion was made to set aside the verdict because some writings had been delivered to the jury by a stranger. Lord Hale, who was counsel in the case, and opposed the motion, produced the affidavit of the foreman of the jury that they had not looked at the writings. But the court refused to listen to the affidavit. Rolle, Ch. J., said: "The affidavit of the jury ought not to be allowed to make good their own verdict; for now they are, as it were, parties, and have offended, and shall not be allowed by their own oath to take off their offence." (Trials per Pais, 225;. Viner's Abr. Trial, 448, pl. 6.) But, notwithstanding this early decision, it has no doubt been the practice of the courts to receive the affidavits of the jurors themselves in answer to a charge of irregularity or abuse. They have, however, generally been considered as an unreliable species of evidence. In Commonwealth v. McCaul (supra), Wilson, J., says: "From the mode in which collusion and tampering is generally carried on, such circumstance is generally known to no person except the one tampering and the one tampered with, or the persons between whom a conversation might be held which might influence the verdict. If you question either of these persons on the subject, he must criminate or declare himself innocent, and you lay before him an inducement not to give correct testimony." Eastwood v. The People. In the case of Hines v. The State (8 Humph., 597), the court say: "The only witness who gives any explanation whatever is the offending juror. This affidavit, it is true, excludes the possibility that he was tampered with, if his testimony shall be deemed sufficient to establish the fact. But we do not think this affidavit can be relied on as proof of the innocence of his conduct." But admitting that the affidavit of a juror who separates himself from his fellows is alone sufficient to repel the presumption of danger to the prisoner which arises from the bare fact of separation, what does the affidavit of Murray in this case show? He simply says that "he did not say a single word, directly or indirectly, to a single person, after leaving the jury until his return to them, about the trial or the subject matter thereof." He does not say who was in the house into which he went, how many persons he saw while there, nor what was said to him or in his hearing. It is not so much what jurors say to others that is to be guarded against as what others say to them. This affidavit affords no evidence whatever that the juror, while absent, did not hear remarks of the most improper character, which might have influenced him in regard to the verdict. I concede this to be improbable. But is probability enough where life is at stake? As was said by Parker, J., in The State v. Prescott (supra), “these irregularities may not have affected the prisoner, but that is not enough. Even if it was probable they had not, mere probability would not suffice." If the separation of the juror Murray from his fellows was the only irregularity in the case, the strict legal rule would require us to say that it was not fully explained. But this is not all. The foreman of the jury, Charles, also left his associates, entered a store, and had a conversation of some minutes with the proprietor, Coatsworth, upon private business of his own, without the consent or even knowledge of the officer having the jury in charge. This was highly improper, but if fully explained would not vitiate the verdict. The affidavit of Charles, Eastwood v. The People. produced in explanation, is more full than that of Murray, and supported, as it is to some extent, by that of Coatsworth, may perhaps be regarded as sufficient to show that the verdict could not have been affected by the circumstance. But the affidavit of the officer, Targee, discloses a fact of serious import. He says that while Murray was absent, "several persons began to gather around the jurymen," and that at his suggestion the other officer, Olmsted, “started on with some of the jurymen upon Franklin-street to avoid the crowd of persons beginning to gather around them." It is to be inferred that the persons gathering around them knew that they composed the jury in Eastwood's case. What was said by the persons composing this crowd? Of this we are not informed. It is true that all the jurors whose affidavits were read testify that they held no communication, directly or indirectly, with any person in regard to the trial during their absence from the hotel. I am disposed to consider this as equivalent to saying that they heard no remarks from any one bearing on the subject; but there are two of the jurors from whom no affidavit is produced: who shall speak for them? It is true that those jurors whose affidavits are produced severally swear that neither they themselves, nor any other of the jurors, to their knowledge, held any communication with any person at any time during their absence from the hotel, and this is confirmed by the affidavit of Targee; but when it is considered that not one of them, as they all swear, including the constable, Targee, was aware of the fact that the foreman, Charles, went into the grocery and had a conversation there of some minutes with Coatsworth, it may readily be seen how much their affidavits, as to what others did, are, under the circumstances, worth. Now, in view of the fact, testified to by Targee, that the jury, while waiting for their associate, Murray, were so pressed upon by the crowd that the officers were compelled to separate them into two parties to avoid the throng, are we not bound to hold that the interest manifested by the |