Gandy v. State. jurors presumably have had little or no experience as jurymen, perhaps may be timid in the expression of opinions, slow in recalling the evidence, or unable for a time to harmonize it. It thus becomes important that the discussion of the evidence among the members of the jury should be free and untrameled. It is the policy of the law that the verdict of every jury shall be reached by free and deliberate consultation, without bias or prejudice, and be based upon the evidence. The evidence is to be carefully weighed, the instructions to the court considered, and a conclusion reached which shall satisfy each member of the jury. This can only be had by preventing an intrusion for any considerable time by the bailiff, or others, while the jury are considering their verdict. In the brief of the county attorney and his associates, we find at the close a considerable statement designed to show to the court some of the transactions of the plaintiff in error, from which the inference is sought to be drawn that he is a bad man. As the statements referred to are not a part of the record, they have not been considered, nor can they have any weight with the court. And it may as well be said that such statements should not be inserted in a brief. The plaintiff in error may be a good or bad man, we know not which. He is to be tried, however, for a specific offense, and not upon general charges. On the trial of such offense he is entitled to a fair jury, to witnesses called by him to appear and testify in his behalf, and to a careful consideration of his case by the jury, and that the verdict shall be the result of their joint deliber ation. During the argument of the case the attorney for the plaintiff in error stated that many of the witnesses whose names were endorsed on the information on the morning of the day of trial were personal enemies of the plaintiff in error, who were not designed to be called to testify, but to sit on the front seats in the court room and applaud when Gandy v. State. a point was made against the plaintiff in error; and that the judge had some difficulty in restraining them. The only thing which we find in the record tending in any degree to support this charge is the fact that seventeen of the persons whose names were so endorsed were not called as witnesses. If the facts were as stated, the attorney for the plaintiff in error should have called the attention of the trial court to that fact, and support the charge by affidavit. The charge is a serious one, and should not be made unless there is abundant evidence to sustain it, but the charge being once established it would be the duty of the trial court to set aside the verdict. The criminal law is to be used as a means to punish the guilty, and not to gratify the malice of the enemies of the accused. The judgment of the district court is reversed, and the cause remanded for further proceedings. REVERSED AND REMANDED. COBB, J.. concurs. REESE, CH. J., dissenting. Not being able to agree with the majority of the court as to the decision in this case, I will very briefly state my reasons therefor. First, Section 579 of the criminal code provides, in substance, that the prosecuting attorney shall endorse upon an information the names of the witnesses known to him at the time of filing it, and at such time before the trial of any cause as the court may, by rule or otherwise, prescribe, he shall endorse thereon the names of such other witnesses as shall be known to him. I find nothing in the law requiring the prosecuting officer to endorse the names of additional witnesses upon an information "before the day set for the trial of the case," and I know of no authority to inject those words into the statute. Gandy v. State. Second, While it is possible that the county attorney exceeded the strict rules of propriety in conversing with the witnesses or persons named in the opinion of the majority, yet I am wholly unable to find any evidence of prejudice resulting to plaintiff in error. There is no intimation in the evidence of either Thomas, Calvert, Hutchins, or Bentley, that the remarks made intimidated them, or that any part of their testimony on behalf of plaintiff in error was suppressed thereby. The record shows that all, with the exception of Thomas, were placed upon the witness stand, and testified, and there is nothing in his affidavit which shows that his failure to testify was in any degree owing to fear or intimidation. Assuming, therefore, that all that he has testified to in his affidavit is true, I cannot see why a new trial should be granted therefor, in the absence of a showing of prejudice. Again, every essential averment of the affidavits referred to is contradicted by the affidavits produced by the state. The county attorney makes oath that he never had any conversation with Thomas about the case, at any time or place; that he never tried to prevent the witnesses from appearing and testifying on the part of the defense; that he at one time, at Oberlin, Kansas, advised Calvert that he was being made a victim of, but did not try to prevent him from testifying. It seems to me a new trial should not be granted for what B. Bell Andrews may have said to other witnesses, without some showing that plaintiff in error suffered thereby. There is no such showing. It often occurs that a witness, whether directly interested in the trial or not, becomes a partisan in favor of the side by which he is called, and indulges in unbecoming and even profane language towards those called by the opposite party, but I think I have never heard of a case where a new trial was granted for such conduct in the absence of a clear showing of prejudice. These questions of fact were all submitted to the trial court upon the motion for Gandy v. State. a new trial, upon affidavits, in which there was a sharp conflict. I do not believe that the decision of the court thereon can be said to be so manifestly against the weight of evidence as to require a reversal of its decision thereon. court. Third, Section 484 of the criminal code provides, in substance, that a trial jury while deliberating upon their verdict must be kept together, in charge of an officer, until they agree upon a verdict or are discharged by the The officer having them in charge shall not suffer any communication to be made to them, or make any himself, except to ask them whether they have agreed upon a verdict. Nor shall he communicate to any one, before the return of the verdict, any matter in relation to the state of their deliberations. I am unable to find anything in the statutes requiring the absence of a bailiff from the jury room during the time of the deliberations of the jury. I grant that it would be entirely proper for the district court to forbid the presence of a bailiff during the deliberations of the jury, and in case of a failure on the part of the bailiff to obey the direction of the court in that behalf, to punish him for contempt. But to say that in the absence of any such direction, and in the absence of a statutory provision requiring it, that the presence of the bailiff would be sufficient to vitiate the verdict of the jury, not only in the absence of a showing of prejudice, but in a case like this, where it is clearly and positively shown that, during the deliberation of the jury, nothing was said by the bailiff to any of the jurors, nor by any of the jurors to the bailiff, concerning the subject of the deliberations, is going beyond the provisions of the law and the intention of the lawmaker, Callahan v. Powers, EDWARD B. CALLAHAN, APPELLANT, V. PATRICK POWERS ET AL., APPELLEES. Creditor's Bill: EVIDENCE. In an action in the nature of a creditor's bill, the purpose of which was to subject real estate (the title to which was in the name of the infant son of the judgment debtor) to the payment of a judgment, the district court, upon the trial of the cause, found, specially, that no part of the purchase price of the property was paid by the judgment debtor. The testimony showed that the property was purchased by his wife, and paid for out of her separate earnings, and at her request the title was placed in the name of one of their children. At that time the wife was not indebted to the plaintiff or to any other person. It was Held, That the property was not subject to the payment of plaintiff's judgment, there being sufficient evidence to sustain the finding of the district court. APPEAL from the district court of Douglas county. Heard below before WAKELEY, J. William A. Redick, for appellant. John C. Cowin, for appellees. REESE, CH. J. This action, which was instituted in the district court of Douglas county, was in the nature of a creditor's bill, the object and prayer of the petition being to have the real estate described therein declared subject to the payment of a judgment held by plaintiff against Patrick Powers. It appears from the record that, in the year 1875, plaintiff recovered a judgment against said Patrick Powers, for the sum of $303.13, in the county court of Douglas county, and on the 1st of July, 1879, a transcript of said judgment was duly filed in the office of the clerk of the |