Page:Federal Reporter, 1st Series, Volume 6.djvu/861

 POOJj V. 0., s. & Q. B. 00. 84& �Mr. Carter, a member of the jury, testifies that immedi- ately after the jury retired for consultation, Hope moved that Palmer Clark act as foreman, which was carried. Another gentleman, who was also present with the card party, then moved that Hope act as secretary, which also prevailed., The balloting then comnienced. It is remarkable that some one did not move the appointment of a committee to prepare and report a proper verdict to be adopted by the jury. That was ail that seemed wanting to transplant the tactics of the veteran politician in full bloom from the caucus to the jury room! �There being no evidence in the affidavits before the court to implicate the defendant in the misconduct of the jury, counsel contends that. the court ought not to set aside the verdict, because the misbehavior of the jury is no ground for granting a new trial where the successful party is not at fault, and when there is no prejudice to the losing party. And in this connection the counsel argue that the verdict was clearly right, and that no other verdict could have been rendered upon the evidence. There are oertainly authorities to Bustain this doctrine, and, with a proper understanding of what constitutes prejudice, I see no good objection to it. �But what is prejudice? Can the court say that where the jury misbehave, so that the losing party bas not had a fair and impartial trial, there is no prejudice, because the court may be of opinion that the verdict is right ? By no means ; because the losing party is not bound to accept the judgment of the court : he is entitled to the verdict of an impartial jury. Suppose, in a criminal case, the jury should commit the fault of receiving information outside of court, and the judge should be of opinion that the conviction was clearly right, could the court pronounee that there was no prejudice to the prisoner, and therefore refuse him a new trial ? Clearly not; and yet there is in this respect no distinction in princi- ple between civil and criminal trials. The right to a fair and impartial trial by jury is the same in both. The true idea of prejudice in this connection was this ; Was the misbehavior of the juror such as to make it probable that his mind was �v.6,no.9— 54 ��� �