Gibbs v. Dewey , 5 Cow. 503 ( 1826 )

Curia, per Sutherland, J.

Embracery is defined to be, an attempt by either party, or a stranger, to corrupt, or influence a jury, or to incline them to favor one side by gifts or promises, threats or persuasions, or by instructing them in the cause, or any other way, except by opening and enforcing the evidence by counsel at the trial, whether the jurors give a verdict or not, and whether the verdict be true or false. (3 Bac. Abr. 785. 1 Hawk. P. C. ch. 85. Co. Litt. 369.) And it is an offence at common law, as well as by statute, (id. 1 R. L. 174, 334 ; 4 Bl. Com. 140,) and punishable by fine and imprisonment.

The colloquium shows that the plaintiff was a witness upon the trial of an indictment against the defendant; and that the words alleged to have been spoken by the defendant were spoken of the plaintiff in relation to his conduct as a witness upon that trial.

The jury found a general verdict for the plaintiff; and if any of the counts are bad, the motion in arrest of judgment must prevail. (6 T. R. 691. 1 Caines, 347. 3 Cowen, 231.)

It is not necessary, in order to render words actionable, that there should be the same certainty in stating the crime imputed, as in an indictment for the crime. If the words spoken, in their natural and ordinary signification, import a criminal charge, it is sufficient to render them actionable. (8 John. Rep. 74. 13 id. 48.)

The substance of the first count is, that the defendant charged the plaintiff with having handed papers to one of the jurors (on the trial alluded to in the colloquium) to influence the jury; and that he ran away, or the judge would have put him in prison for it. It is objected to this count, that the attempt to influence the jury is not alleged to have been corrupt; and does not, therefore, amount to a crime punishable by indictment. Any attempt by a witness to influence a jury, in any other way than by the open delivery of his testimony, is improper; and, in judgment of law, corrupt. A witness has no right to deliver any paper to the jury, without the direction of the court. The act is as criminal in a witness, as it would be in a by-stander. There can be no doubt of the intention of the defendant to charge the plaintiff with the commission of a criminal act; and the terms used by him necessarily import a charge of that character.

The 3d, 5th, 11th and 12th counts are objected to, on the ground that they do not positively impute to the plaintiff the commission of any offence ; the charge being, that the plaintiff handed papers to the jury to influence or bribe them. It is evident that these terms were intended to convey the same idea. The connexion shows it. To influence a jury, by handing them papers, and to bribe them, by handing them papers, are synonymous expressions, when applied to an individual who had no right to interfere with the jury at all. The expression, that a man bribed a jury hy handing them papers, if standing alone, would not be understood as conveying a charge of bribery, in its ordinary signification ; but simply as imputing to him the offence of improperly attempting to influence them, through the medium of the papers thus handed to them. It is, therefore, as here used, a species of tautology; a mere repetition, in terms perhaps somewhat stronger, of the previous charge. There is, then, no uncertainty in the charge contained in these counts; and the words are clearly actionable, for the reasons already signed in relation to the first count. The motion in arrest must he denied.

Motion denied.