The King against Wooler
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1817 |
| Date | 26 November 1817 |
| Court | Court of the King's Bench |
English Reports Citation: 105 E.R. 1280
IN THE COURT OF KING'S BENCH.
1280 THE KING V. WOOLER 6M.&S.366. [366] the king against woolek. Thursday, June 19th, 1817. 'The affidavits of individual jurors to impugn a verdict recorded, on the ground that it was not given with their assent, are not receivable; but the affidavits of bystanders as to what passed within their knowledge touching the delivery of the verdict and dissent of some of the jury at the time, are admissible; and if the Court see reason to think that some of the jury may not have heard what passed at the time of delivering the verdict by the foreman, they will direct a new trial, and will not, at defendant's request, merely vacate the verdict, in order that it may be tried by the same panel, as if no trial had taken place. Information by the Attorney General against the defendant, for printing and publishing a seditious and blasphemous libel. Plea, not guilty. The issue came on for trial before Abbott J., at the last London sittings, on Thursday the 5th of June. At the sitting of the Court on Friday the 6th of June (being the first day in full term), Abbott J. addressed the Court to the following effect-:-I take the earliest opportunity of stating to the Court some circumstances which occurred at the trial of a ease yesterday before me at Guildhall. The case to which I allude was an information filed by the Attorney General against a person of the name of Thomas Jonathan Wooler, for a libel. After the ease had be^n gone through, the jury retired from the Court to consider their verdict. During their absence, another case was called on, and the trial proceeded, and just as the reply was Concluding, the door on my left hand was opened, in order to admit the jury in Rex v. Wooler, who returned after considering their verdict; and as soon as the reply in the other case was finished, which was done in one or two sentences, the names of the jurors in Bex v. Wooler were called over by the officer of the Court in the usual way, and they were asked, according [367] to the ordinary course, whether they had agreed in their verdict, and whether the defendant was guilty or not guilty. The foreman answered, that the jury found the defendant guilty ; but three of them were desirous, or had desired him on their part, to add something by way of explaining their verdict. I then interposed, and told the jury that I could not receive an opinion or declaration coming from a part only of the jury; that the verdict must be the verdict of all; and I asked (speaking, as I thought, in a very distinct and audible tone of voice), whether all the jury had agreed in the verdict they had at first pronounced ? The foreman answered, that they had. At that time I did not hear any dissent expressed by any of them. The situation was, however, such, all the jury not having come into my view from the room behind the Bench, that it is not altogether impossible that some mistake or misapprehension might have taken place, and that some of the jury might not have heard distinctly what had been said. The jury having retired, and the door by which they entered being closed, I proceeded to sum up the other case. When I had concluded, it was suggested by a gentleman at the Bar, that some of the jury in Rex v. Wooler had not concurred, and did not intend to concur, in the general verdict which bad been delivered; and were desirous that the verdict should be recorded with some degree of qualification. I have not the precise words very distinctly now in my mind ; but I believe I have stated the substance. I was further given to understand that some of the jury were present in or near the Court. I then said, that the verdict of the jury having been recorded after that they had been distinctly asked if they had agreed, and had replied in the affirmative, it seemed to me, that [368] sitting in that place, I could not do any thing in the matter. I do not know whether I made use of the sentiment, but certainly my mind was impressed with it, that it would be extremely dangerous if the Judge, after the jury had retired from the Bar, and some interval of time had elapsed, were to receive and act upon any communication from them in the then state of the proceedings. I thought it was too late for me to interfere, and therefore was of opinion that the verdict must stand as recorded. I wish, however, to take the earliest opportunity of stating this occurrence to my Lord and my brothers. The learned Judge having concluded, the Court deliberated for some time, when contrary, have repaired and amended, and have used and been accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend the said bridge when and as often as need and occasion hath been, or shall be or require." 6M.&S.369. THE KING V. WOOLER 1281 Lord Ellenborough C.J. (addressing himself to the Attorney-General), said : The Court cannot, according to the authorities and precedents of law, receive an affidavit from a juryman upon the subject of the verdict; but the reason why he is precluded from making such affidavit is, because, under ordinary circumstances, it must be intended that the verdict was given with his assent. But in order to imply his assent, unquestionably it should appear, that he heard what was propounded by the foreman on behalf of himself and his fellows: and the difficulty which presents itself to my mind is, whether there appears in this case a sufficient ground upon which the Court can safely rely, to conclude that all the jury did hear what was propounded for them, and on their behalf, by the foreman. Now, all the jury were not at the time within the sight and view of the learned Judge, for it seems that a part were in the room behind ; so that we have not, in this case, the ordinary [369] means which exist in other cases, for presuming that every one of the jury must have heard what was propounded oa their behalf by their foreman. If they did not hear it, they were not furnished with any means of contradiction, or signifying any dissent or qualification, and it cannot be considered as the verdict of all, because it is only their verdict if propounded by the foreman with the assent of all. This circumstance affords a distinction from all the cases which have usually come before the Court, because verdicts are usually given by the jury standing together in the view of the Judge, and with full opportunity of hearing every thing which is propounded by the foreman, and of expressing their dissent, if they think fit so to do. If it could be made out satisfactorily from the position in which the jury stood, their proximity to and being in view of the Judge, that all heard and none dissented, it would be too much to disturb the verdict, and certainly the Court would not entertain a motion of that kind founded upon an affidavit of a juryman. But the perfect evidence of all the jury having heard, and having the means of dissenting if any thing was untruly propounded on their behalf, seems to be wanting in this'case; and therefore I would suggest for the consideration of the Court, whether, under the uncertainty that exists (and any uncertainty is to be avoided, especially in a criminal proceeding), it should not be allowed to the defendant to have the advantage of a new trial, if he should be disposed to apply for it. The Attorney-General said, that he apprehended the utmost extent to which his Lordship intended that the defendant should be indulged, was to be permitted to lay before the Court grounds for a new trial. The jury [370] were certainly all called over, and they answered to their names. [Lord Ellenborough C.J. We assume that.} All were within hearing at the time, and the verdict was pronounced in such a tone of voice, that it must have been heard by all present. Bayley J. I understand the learned Judge who tried the cause entertains a doubt, whether the verdict, ultimately pronounced by the foreman, was distinctly heard by each and every of the jurors. Lord Ellenborough C.J. The want of seeing them renders it doubtful whether they all heard what passed. If the Judge had seen all the jury, it would have afforded an-unquestionable presumption that they all heard what took place. The Attorney-General. The Court will expect it to be made out satisfactorily that the jurors did not hear. V Lord Ellenborough C.J. The Court think they are precluded from the means of acquiring that knowledge through an affidavit of any of the jurors: if they cannot agree in their verdict, they ought to express dissent at the time. But if the jurors, at the time when their verdict was delivered by the foreman, had not the means of hearing what was propounded for them, -there is no need of their affidavits upon that point. If the verdict had been given under such circumstances as ordinarily occur, the Court would infer their consciousness of what was propounded by their foreman. But the danger would be infinite from allowing such affidavits to be received ; and this has, doubtless, in former times deterred the Court [371] from yielding to such applications. I do not know that an application of this kind has ever been made. Bayley J. The Court, sensible of the difficulty, felt that it was due to my brother Abbott himself, and to the public, that he should make this communication. I agree entirely with my Lord in all the observations he has made with reference to this case ; it is peculiarly circumstanced ; for the jury were in such a situation as not all to b& within view of the Judge : he could not see them all, nor could they all see him, and as soon as decorum would allow, the communication of dissent was made. K. B. xxxiv.-41 1282 THE KING V. WOOLEB 6M.&S.372. The Attorney General then said, that if the Court, under all the circumstances, thought there ought to be a new trial, he, standing there as the officer of the Crown, ought not to resist it. Holroyd...
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