44 Kan. 715 | Kan. | 1890
The opinion of the court was delivered by
This action was instituted by Adolph Ehrhard, before a justice of the peace, to recover from Michael Jones $99 as damages, alleged to have been sustained by reason of the stock of Jones trespassing upon plaintiff’s land and destroying his crops. Judgment was given in favor of the plaintiff, and Jones appealed to the district court, where a trial with a jury resulted in a verdict and judgment in favor of Jones, and the plaintiff brings the case here, alleging error. Since the proceeding was instituted in this court, Jones has deceased, and the action has been revived in the name of his personal representative.
A new trial was asked because of the misconduct of the jury. The case was submitted to the jury on September 26, 1887, when they retired in charge of an officer, and remained in session until September 28, when they reported to the officer in charge that they had agreed upon a verdict. The court not being in session at that time, they sealed up the verdict and delivered the same to the officer, and thereupon were allowed to separate. At the convening of the court on the following day, the jury were brought in and asked if they had agreed upon a verdict, and the foreman responded that they had, and the sealed verdict was thereupon opened and read by the clerk, which was a finding in favor of the defendant, but that each party should pay one-half of the costs of the action. The record shows that the following proceedings were then had:
“Whereupon the court reprimanded the jury for separating and going at large upon the pretense of having agreed upon a verdict, which they must have known could not be received, and thereupon directed the jury to retire to their jury-room to consider of their verdict; to which action of the court in*717 directing the jury to retire after having been separated during the previous day and night, plaintiff objected, and asked that the jury be discharged for misconduct.”
The objection was overruled, and an exception taken. The jury again retired, in accordance with the direction of the court, and, failing to agree at an earlier time, they were kept by the officer continuously until the 3d day of October, 1887, when they agreed upon a verdict in favor of the defendant. The reprimand which the court administered to the jury was fully justified, and the natural tendency of their misconduct was to disqualify them for the proper performance of their duty. The result which they sealed up and delivered as a verdict finding in favor of both parties, was plainly inconsistent and improper. The plaintiff contends that it was a feigned verdict, given in order to gain the privilege of separating. They may have been honestly mistaken as to their course; but whatever may have been their motive, their action resulted in a separation without the permission or admonition of the court. They were permitted to mingle with the public, and for aught we know may have conversed with many others about the facts in the case, and may have received impressions concerning it other than those received during the progress of the trial. The result first returned is vastly different from the verdict finally rendered, as the record discloses that the great amount of costs incurred is probably now the most important consideration in the controversy. At any rate, it was necessary to hold the jury continuously together about five days afterward to secure an agreement in favor of the defendant, relieving him from the payment of half the costs. No testimony was offered, on the motion for a new trial, to show that the misconduct did not influence the jury to the prejudice of the unsuccessful party. The statute provides that when a case is finally submitted to the jury, they must be kept together, under charge of an officer of the court, and not allowed to separate or mingle with the public, except with the permission of the court and after they have been duly admonished as to their conduct during the
The judgment of the district court will be reversed, and the cause remanded for another trial.