3 Chand. 214 | Wis. | 1851
This was an action on tbe case, for slander, brought by the defendants in error (who are husband and wife), against the plaintiff in error, for alleging that the wife had had carnal intercourse with him. At the trial, the jury returned a verdict for the plaintiffs, upon which the court rendered a judgment. The errors assigned by the plaintiff in error are:
First. That the court erred in refusing to direct the clerk properly to draw the jury. Second. In refusing to exclude the plaintiffs’ witnesses from the court room during the progress of the trial. Third. In refusing to order a nonsuit; and Fourth. In overruling the motion in arrest of judgment.
By the bill of exceptions, it appears that after the jury had been drawn, and had taken their place in the jury box, the judge was requested to order the clerk to draw a new panel of jurors, for the reason that the clerk had not drawn the names of the jurors from the box, but had held slips of paper, with the names of the jurors written thereon, in one hand, and had drawn them out with the other. The judge then inquired of the clerk if the names of the jurors in the box had been drawn fortuitously, and upon being informed by the clerk that they had been so drawn, decided that there was no necessity for drawing a new panel. It appears that the attorney for the defendant then made a formal motion to have the names of the jurors in attendance put in a box, and drawn out, four at a time; which motion was overruled by the court, to which decision the
We see no error in the ruling of the judge. It appears that the counsel for the parties witnessed the drawing of the jury, and that neither of them made any objection to the manner in which the drawing-was conducted.
As our statute is silent in respect to the manner in which jurors are to be drawn, it is sufficient if the drawing is fortuitous. Whether the slips of paper containing the names of the jurors are placed in a box or held in the hand of the clerk and drawn out fortuitously, is entirely immaterial, and any other mode of obtaining a jury which ensures fairness would be equally free from objection. The second error assigned is, that the court erred in refusing to exclude the plaintiffs’ witnesses from the court room during the progress of the trial on the part of the plaintiffs. It appears from the bill of exceptions, that a motion was made by the counsel for the defendant, to have the plaintiffs’ witnesses excluded from the court room and kept out of the hearing of the testimony given on the part of the plaintiffs, and during the opening of the cause on the part of the plaintiffs and' the reading of the declaration. The judge refused to make the order asked for on the ground, as stated in the bill of exceptions, that he was not aware that the court had the authority to make such an order in civil cases, and stated that if he had the authority he would make the order.
It was not only to exclude the plaintiffs’ witnesses while their other witnesses were testifying, but also during the opening of the case on the part of the plaintiffs and the reading of the declaration. No elementary work, nor any adjudicated case which has fallen under my observation, authorizes the exclusion of witnesses from the court room except while other witnesses on the same side are testifying. 1 Greenl. Ev., see. 432, and note. We are of opinion that in overruling the motion no error was committed. The third and fourth errors assigned will be considered together.
It appears that a motion for a nonsuit and the motion in arrest of judgment, were both founded upon an alleged defect in the declaration, with the additional reason in support of the
The objection that the declaration does not allege that the plaintiffs were husband and wife, at the time when the words were uttered, merits more consideration.
The manner in which the averment, that the plaintiffs were husband and wife, is made in the two first counts, is as follows : After the statement, in the introductory part of the declaration, of the good character of Mary Ann Conyne, the wife of Abram A. P. Conyne, the declaration goes on to state that the defendant, contriving and maliciously intending to injure the said Mary Ann Conyne, wife of the said Abram A. P. Conyne, on, etc., at, etc., spoke the words of and concerning the said Mary Ann Conyne. The third count charges the speaking of the words, of and concerning the said Mary Ann Conyne, the wife of the said Abram A. P. Conyne. The objection urged by the counsel for the plaintiff in error, to this mode of averring the fact that the plaintiffs were husband and wife is, that it does not appear that they were then husband and wife; that the declaration may be true, and yet their marriage may have taken place since the words were uttered. Without stopping to inquire whether this is a fair or a hypercritical construction of
Another point was argued by the counsel for the plaintiff in error, arising from the verdict of the jury. The verdict is in these words: “ We, the jury, find the defendant guilty of willful and malicious slander, and assess the plaintiffs’ damages, four hundred dollars.” It is insisted, on the part of the plaintiff in error, that it does not appear by the verdict, of what slander the jury found the defendant guilty; whether that charged in the declaration, or some other. But we think that the willful and malicious slander found by the verdict, must, by fair intendment, mean that complained of in the declaration. Porter v. Rummery, 10 Mass., 64.
Judgment affirmed.