it can be seen that in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, no ground exists to set the verdict aside for the reason that said comment could not have been prejudicial.
The trial of the proceeding was greatly prolonged in view of the issues which existed in the case. It was conducted on both sides by very capable, alert and learned counsel, with numerous and many objections, and in some respects became a fascinating contest of wits between counsel. At times the personalities of counsel were allowed to interfere with their sound clear judgment. Members of the bar have great liberty and high privileges in the assertion of their client's rights, but on the other hand they have equal obligations as officers of the court in the administration of justice to maintain and keep their professional conduct free from suspicion or criticism.
If the verdict reached by the jury was in any other way than by a conscientious observance of the oath which every juror took, it would be the duty of the court to grant a new trial. United States v. Brandenburg, 3 Cir., 162 F.2d 980, 983.
The authorities on the question are somewhat limited. A new trial should not be granted because of irregularities in the conduct of a juror or counsel unless it is made to appear that the alleged misconduct was prejudicial to one of the party litigants. Liggett & Myers Tobacco Co. v. Imbraguglia, supra; Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Manfredi, 162 Pa. 144, 29 A. 404; McCoy v. Shoemaker, 24 York Leg.Rec.,Pa., 165; Wiest v. Layendyk, 73 Mich. 661, 665, 41 N.W. 839; Zageir v. Southern Express Co., 171 N.C. 692, 89 S.E. 43; Tillett v. Norfolk Southern R.R. Co., 166 N.C. 515, 520, 82 S.E. 866.
No inferences should be drawn from what has been stated that the court is condoning the improper conduct which occurred.
Any departure from the rule that 'after a jury has retired, nothing further should reach it in any form whatsoever unless by order of the court in strict conformity with established jury procedure' has a tendency to lessen respect for the administration of justice and the dignity that should surround jury trials.
However, assuming that such may have been the effect of the transgression complained of, and however much such possible effect is to be deplored, it is not to be confused with the question I am called upon to determine.
Was the transgression of such a character as likely to be prejudicial to the opposing party litigant?
No basis exists for determining that it was. The action of counsel for the defendant was irregular, uncalled for and severely criticized. It is hoped that such an occurrence will never again be permitted to arise in this court. If any possible prejudice could have arisen to the opposing litigant, a new trial would be granted and appropriate disciplinary action taken against the offender.
Spracale was in no respect shown to have participated in said act or to have planned, suggested, prompted or approved the act. The verdict had been agreed upon, signed and sealed, to be delivered to the court the next morning. The verdict slip was in the possession of the foreman of the jury who was not involved in the conversation with Spracale's counsel. It is not claimed that any change was made in the verdict and no benefit could have been derived by Spracale.
In view of the fact that the jury had reached a sealed verdict at the time the conversation occurred between defendant's counsel and one of the jurors, it would not have been possible for the conversation which took place to affect the mind of one or more of the jurors.
I find nothing which would lead to the belief that the verdict was reached in any way other than by a conscientious observance by the jurors of the oath which was taken, and in view thereof I do not believe that grounds exist for awarding a new trial. U.S. v. Brandenberg, supra.
A motion to grant a new trial is governed by Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and is not subject in any way to rules of state practice. Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350.
As to all other questions raised, it is the duty of the court to grant a new trial only if the court is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false or will result in a miscarriage of justice. With this standard in mind, I have given careful attention to the problem. Suffice to say, it does not appear to me a new trial is justified. The weight to be given the testimony, the inferences and deductions to be drawn therefrom, was for the jury to appraise and to accredit or reject.
Further, I find no error in the rulings on the admissibility of evidence or the general charge of the court.
As to the refusal of the court to submit requested instructions, the points of law contained therein were covered in the general charge of the court. Such refusal does not constitute prejudicial error. Chicago & N.W. Ry. Co. v. Carl, 8 Cir., 178 F.2d 497.
The motion of California for a new trial is refused.
An appropriate order will be filed.