When indirect measures have been resort ed to, to prejudytce the jury, or tricks prac tised or disingenuous attempts made to sup-. press or stifle evidence or thwart the pro ceedfrigs, or to obtain an unconscionable ad vantage, they will be defeated by granting a new trial. For example : where papers material on the point in issue, not previously submitted, are surreptitiously handed to the jury ; Cas. temp. Hardw. 116 ; Sheaff v. Gray, 2 Yeates (Pa.) 273; or where the par ty, or some one in his behalf, directly ap proaches the jury on the subject of the trial; Ritchie v. Holbrooke, 7 S. & R. (Pa.) 458; Knight v. Freeport, 13 Mass. 218; or where oue not a member of the jury slept in the same room with them, and had a conversa tion with one or two of them, in which he made statements reflecting on the character of the party against whom the verdict was rendered; Welch v. Taverner, 78 Ia. 207, 42 N. W. 650. But if the other party is aware of such attempts, and neglects to correct them when in his power, he will be deemed to have waived all objection ; 11 Mod. 118. If the interference with the jury comes from a stranger, be without fault in the jury, and without the knowledge of the parties, and no injury has thereby the verdict will not be disturbed ; Stewart v. Small, 5 Mo. 525; Luster v. State, 11 Humphr. (Tenn.) 169; Rowe v. State, id. 491. But see Boles v. State, 13 Smedes & M. (Miss.) 398. Where the jury, after retiring to deliberate, exam ined witnesses in the case, a new trial was granted; Cro. Eliz. 189; Thompson v. Mal let, 2 Bay (S. C.) 94 ; Smith v. Graves, 1 Brev. (S. C.) 16; so, also, when one of their number communicates to his fellows private information possessed by him, which influ ences the finding; Booby v. State, 4 Yerg. (Tenn.) • 111; Wood IL Bk. v. Dodge, 36 Neb. 708, 55 N. W. 234; or the judge addresses a note to them, or privately visits them, after they have retired to deliberate; Sargent v. Roberts, 1 Pick. (Mass.) b37, 11 Am, Dec. 185 ; or a juror takes a private view ; Har rington v. R. Co., 157 Mass. 579, 32 N. E. 955 ; Consolidated Ice-Mach. Co. v. Ice Co., 57 Fed. 898; Woodbury v. .Anoka, 52 Minn. 329, 54 N. W. 187.
Misconduct of jurors will sometimes avoid the verdict, and by the weight of authority, if prejudicial, is ground for reversal; Com. v. Landis, 12 Phila. (Pa.) 576.
Instances of misconduct are: Jurors bet ting as to the result ; Booby v. State, 4 Yerg. (Tenn.) 111; sleeping during the trial ; Baxter v. People, 3 Gilman (Ill.) 368; see Com. v. Jongrass, 181 Pa. 172, 37 Atl. 207 ; unauthorized separation; Wesley v. State, 11 Humphr. (Tenn.) 502; but see State v. Har per, 101 N. C. 761, 7 S. E. 730, 9 Am. St. Rep. 46; Territory v. Hart, 7 Mont. 489, 17 Pac. 718 ; Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385, 35 N. E. 723; taking refresh went at the charge of the prevailing party ; Harrison v. Rowan, 4 Wash. C. C. 32, Fed.
Cas. No. 6,142 ; Vose v. Muller, 23 Neb. 171, 36 N. W. 583; see supra; see Wichita & W. R. Co. v. Fechheimer, 49 Kan. 643, 31 Pac. 127; drinking spirituous liquor ; Gregg's Les see v. McDaniel, 4 Harr. (Del.) 367; Rose v. Smith, 4 Cow. (N. Y.) 17, 15 Am. Dec. 331; People v. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332; People v. Lee Chuck, 78 Cal. 317, 20 Pac. 719 ; if any mental incapacity results therefrom ; Territory v. Burgess, 8 Mont. 57, 19 Pac. 558, 1 L. R. A. 808; but see Territory v. Burgess, 8 Mont. 57, 19 Pac. 558, 1 L. R. A. 808 ; State v. Bailey, 100 N. C. 528, 6 S. E. 372; talking to strangers on the subject of the trial; Bennett v. Howard, 3 Day (Conn.) 223; Riley v. State, 9 Humphr. (Tenn.) 646; but not general conversation; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224 ; determining the verdict by a resort to chance; Harvey v. Rickett, 15 Johns. (N. Y.) 87; Hendrickson v. Kingsbury, 21 Ia. 379; St. Martin v. Desnoyer, 1 Minn. 156 (Gil. 131), 61 Am. Dec. 494; Boynton v. Trumbull, 45 N. H. 408; by returning as the verdict the quotient obtained by dividing by twelve the total of the sums named by the jurors; E. Tennessee N. C. R. Co. v. Winters, 85 Tenn. 240, 1 S. W. 790; Parshall v. R. Co., 35 Fed. 649; Houk v. Allen, 126 Ind. 568, 25 N. E. 897, 11 L. R. A. 706. But not every irregularity which would subject jurors to censure will overturn .the verdict, unless there be some reason to suspect that it may have had an influence on the final re sult. See Testard v. State, 26 Tex. App. 260, 9 S. W. 888 ; State v. Gould, 40 Kan. 258, 19 Pac. 739. In general, if it does not appear that the misconduct was occasioned by the prevailing party or any one in his behalf, and does not indicate improper bias, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict will not be disturbed. For gross misconduct of the jury a new trial may be granted on grounds of public policy ; Hilly. New T. 198. Where the jury after returning an informal verdict were discharged, and within thirty seconds recalled and the verdict corrected, the sepa ration will not vitiate the verdict; Boyett v. State, 26 Tex. App. 689, 9 S. W. 275. When the jury were kept out eighty-four hours it was held that their agreement was coerced and a new trial ordered ; People v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep. 564.
Reading a newspaper account of the facts is misconduct; Moore v. State, 36 Tex. Cr. R. 88, 35 S. W. 668; but if favorable to the prisoner or not such as to cause prejudice against him, it is immaterial; U. S. v. Reid, 12 How. (U. S.) 361, 13 L. Ed. 1023. If the article was such as to aid in reaching a ver dict, a new trial will be granted; Mattox