On appeal from the District Court of the Fourth Judicial District of the County of Union.
For the appellant, Eugene A. Liotta.
For the respondent, Sidney H. Weintraub (David Srager, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued upon a book account and for goods sold and delivered. Defendant counter-claimed for damages for deceit respecting the quality and weight of a diamond sold to him by plaintiff. The issues were submitted to a jury; and there was a verdict for plaintiff. Defendant appeals from the consequent judgment.
The single point made is that the trial judge "secretly gave instructions to the jury without the presence of the attorney for the defendant or of the defendant."
It is certified in the state of the case settled by the District Court Judge that the jury, in the course of their deliberations, "requested further instructions from the judge;" that the judge thereupon "went into the jury room for the purpose of giving the jury such instructions as requested;" and that "neither counsel was present and neither counsel requested the court to appear before the jury and no exception was taken to the action of the court." And it was subsequently stipulated by the parties, apparently with the sanction of the court, that, "due to the fact that there is no regular jury room connected with the court room," it was then and had been "the practice" of the court "at the conclusion of a jury trial to exclude all persons" from the court room, "including the clerk and the judge * * *, and to instruct the jury that said room then is and becomes the jury room for its deliberations, and no person is permitted to enter said room while said jury is engaged in its deliberations;" that, in the course of their deliberations, the jury in the instant case "requested further instructions," and the judge "without
apprising counsel entered the jury room for the purpose of giving such additional instructions;" that "counsel for appellant, who was present in the clerk's office, saw the judge enter the court room, which was then the jury room;" that "after the judge had entered the jury room, counsel requested of the clerk to be allowed to enter the jury room and the clerk did thereupon inform him that he had no right to permit counsel for the appellant to enter said jury room;" that "subsequent thereto the jury announced that it was ready to render a verdict;" and that "no exception was taken in open court by counsel for appellant to this procedure prior to the rendition of the verdict by the jury," but that an exception was prayed after the jury's discharge "to the acts of the court in giving instructions without apprising counsel," although he was in the clerk's office nearby.
In the circumstances, the action thus taken by the trial judge constitutes reversible error in matter of law.
The trial of a cause is not concluded until a verdict has been rendered and the jury discharged. The absence of counsel during the jury's deliberations does not serve to curtail the trial judge's province to give further instructions in open court as the occasion may demand. In contemplation of law, the parties and their counsel are in court until the return of a verdict or the discharge of the jury. Cook v. Green, 6 N.J.L. 109; Cooper v. Morris, 48 Id. 607; Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383; 9 S. Ct. 101; 32 L. Ed. 439; Cornish v. Graff, 36 Hun. 160; Chapman v. Chicago and Northwestern Railway Co., 26 Wis. 295. And it goes without saying that, if supplementary instructions are deemed necessary, they shall be given only in open court in the presence of the parties and their counsel, if they choose to attend, or after affording them an opportunity to be present. This was a requirement of the common law. The parties must have an occasion to save their exceptions to the directions given the jury, and to interpose ...