166 



ANNUAL REGISTER, 1817. 



whether I made use of the senti- 

 ment; but it certainly impressed 

 my mind, that it would be ex- 

 treinely dangerous if, after the 

 jury had retired from the bar, a 

 judge then in Court could receive 

 and act upon any comnuinicalion 

 from them. I therefore was of 

 opinion that the verdict must 

 stand as the verdict of the jury. 

 I wished to take the earliest op- 

 portunity of stating this occur- 

 rence to iny Lord and my brothers. 



Lord Ellenborough (after con- 

 sulting with the other judges). — 



The Court cannot, according to 

 the authorities and precedents of 

 law, receive an affidavit from a 

 juryman upon the subject of his 

 verdict ; and the reason why he is 

 precluded from making the affi- 

 davit is, because, from the circum- 

 stances, it must have been intendf d 

 that that verdict was given with 

 his assent. In order to imply this 

 assent, it must uiujuestionably ap- 

 pear that he heard what was pro- 

 pounded by the foreman on behalf 

 of himself and his fellows; and the 

 difficulty that occurs to my mind 

 is, whether in this case there is 

 sufficient evidence for the Coiut 

 safely to act upon, that tlie jury 

 did all hear what was propounded 

 for them, and on their behalf, by 

 the foreman. Thejurymenweienot 

 all within the view of tiie judge, 

 for it seems that a part of the jury 

 were in the room behind, 1 say, 

 therefore, that we have not in this 

 case the ordinary means existing 

 in others, for presuming that every 

 one of the jury heard what was 

 propounded by their foreman. If, 

 indeed, they did not hear it, they 

 were not furni-hed with any 

 means of contradiction, or of sig- 

 nifying any dissent or qualification. 



Tliis factsupplies a distinction from 

 all the cases that have usually come 

 before the Court. A verdict is 

 generally given, the jurors stand- 

 ing together in the presence of the 

 judge ; and they have full oppor- 

 tunity of hearing what is pro- 

 pounded by the foreman, and of 

 expressing their dissent if tiiey 

 thought fit so to do. If it could 

 be satisfactorily made out, from 

 the position and nearness of the 

 jury, or from the situation of the 

 judge, that all the jury did heai", 

 and that none of them dissented, 

 it would perhaps be too much to 

 disturb the verdict, and the Court 

 could not receive any affidavit 

 against it. But the perfect evi- 

 dence of theii' hearing, and their 

 means of assenting or dissenting, 

 seem to be wanted here ; and, 

 therefore, 1 suggest, for tiie con- 

 sideration of my brothers, whether 

 in this case, under the tincertainty, 

 (for any uncertainty is to be 

 avoided, especially in a criminal 

 proceeding,) it should notbeallow- 

 ed to the defendant to have the ad- 

 vantage of a new trial, if he should 

 be disposed to desire it. 



The Attorney - Genei'al. — It 

 would ill become me to gainsay 

 any thing that has fallen from 

 the Court; but I apprehend, the 

 utmost extent to w hich your Lord • 

 shij) has said the defendant shall 

 be indulged, would be, that he 

 might be permitted to .show grounds 

 for a new trial. I should appre- 

 hend, with great deference, thcit it 

 cannot be granted in this case. Tlie 

 jm'v were certainly all called over, 

 and they an.-wered to tlieir names. 



Lord Ellenborough. — We as- 

 sume that. 



The Attorney - General. — All 

 were within hearing at the time. 



Lord 



