Underhill v. Waite

I agree with Judge Van Brunt, that allowing one of the jury to test the accuracy of the stenographic report, by reading it, while the stenographer read from his minutes, the juror, at the close, stating the result of this test, was error. The jury may use their general knowledge on the subject in any question that is before them; but if any one has any particular knowledge that is material to the matter under investigation, a party is entitled to the benefit of it ; but the juror must be sworn as a witness, that he may *86be examined and cross-examined, subject to the rules of evidence, the same as any other witness (Rex v. Rosser, 7 C. & P. 648; 1 Greenleaf's Evidence, § 364, note).

J. F. Daly, J., dissented.

Judgment reversed and new trial ordered, with costs to abide the event.

There were several objections raised upon, the argument of the appeal in this action, which it is not necessary for me to notice.

I am entirely unable to see upon what principle the court had a right to make the juror a witness as to the accuracy of the manuscript furnished by the stenographer. Not only does the foreman examine the manuscript, but he gives the result of his examination for the information of his fellow jurymen.

As well might the court allow the foreman to measure a distance which had become material in the case, and announce to his fellow jurymen the result of such measurement. In fact, there is no limit to which such a practice could not be carried, if it can be sustained at all.

The province of the jury is to hear the evidence, and not to give it, and the moment a juror is allowed to occupy a position where he can obtain exclusive information which he is expected to communicate, his position of juror is abandoned, and that of witness is assumed.

I cannot but think that the method of procedure in this case was a violation of the rights of the defendant, and constituted error upon the part of the learned judge who tried this cause. The judgment should be reversed, and a new trial ordered, costs to abide the event.