24 Neb. 803 | Neb. | 1888
Plaintiff in error was indicted by the grand jury of Dodge county for the crime of assault with intent to commit rape upon Catherine Mooker, a female child. After a plea of not guilty, a trial was had which resulted in a verdict of guilty as charged in the indictment. This verdict was returned on the 6th day of February, 1888. A motion for a new trial was filed on the 9th day of the same month, and on the same day an amended or substituted motion was filed, which we here copy:
“ Comes now the defendant in the above entitled cause, and moves the court for a new trial in said action, and to set aside the verdict heretofore returned in said cause, and for cause thereof shows:
“ 1st. That the verdict is not sustained by sufficient evidence.
“ 2d. That the verdict is contrary to the evidence.
“ 3d. That the verdict is contrary to law.
“4th. Irregularity in the proceedings of the court, and abuse of discretion by the court, by which the defendant was prevented from having a fair and impartial trial, as appears from the affidavit of William F. Harris and others, attached hereto and made a part hereof.
“ 5th. Misconduct of the jury in deliberating upon, and the manner of agreeing upon, a verdict, as appears from the affidavits of the several jurors, hereto attached and made a part hereof.”
On the 11th day of February the motion was overruled, and judgment and sentence of conviction entered on the verdict.
Upon the hearing of the motion for a new trial no evidence was offered in support of the fifth assignment in the
First. The verdict is not sustained by sufficient evidence.
Second. The verdict is contrary to law.
Third. The court erred in refusing to set aside the verdict of the jury and grant a new trial, upon the ground of the misconduct of the jury.
Fourth. The court erred in overruling plaintiff’s objection to the consideration of the affidavits of jurors in. support of the verdict.
Fifth. The court erred in not vacating the judgment, and granting a new trial.
It is insisted by the defendant in error that the court had no power or authority to vacate its judgment, and hence there could be no error in refusing to do so,, and in support of this, Ex parte Holmes, 21 Neb., 324, is cited..
There is nothing in the statute of this state governing motions for new trials which requires a decision thereon at or within any particular time. Had judgment not been rendered prior to the 18th day of February, we know no rule which would have prevented plaintiff in error from presenting evidence in support of his motion at any time-before the submission thereof, even though the three days in which the motion might be filed had expired. If this is true we can see no reason why the court might not examine the evidence and vacate its judgment, if it appeared that the accused had not had a fair trial. It appears that the motion and affidavits were heard and overruled, and the ruling of the court thereon is the error assigned. It was shown by the affidavits of F. F. Knew and F. C. Tymm, who were not jurors, that Mr. Knew was the police judge of the city of Fremont, and had his office in a room adjoining the jury room, the two being connected by a door; that one of the jurors, on the second day of their deliberation, and on the date on which the verdict was rendered, returned to Judge Knew’s office the Compiled Statutes of 1885, and that another juror returned to said
It is the well-established rule of law, as held in all courts, so far as we know (unless the rule be changed by ■statute), that affidavits of jurors will not be received for the purpose of impeaching or avoiding their verdict in respect to a matter which esentially inheres in the verdict itself, as that the juror was mistaken in a computation, •or misunderstood a witness, or did not comprehend the instructions of the court. The reason for the rule is, that the matters referred to being alone within the breast of each juror it would be impossible to rebut any statements which might be made. See cases cited in Cowles v. R. R. Co., 32 Iowa, 515; and in Perry v. Bailey, 12 Kas., 539. I think it may further be said that the rule adopted by the greater number of courts, both in this country and in England, is, that affidavits of jurors will not be received in any case for the purpose of impeaching or avoiding their verdict, but to this there are a number of exceptions, and to our mind the opposite rule is much more reasonable and promotive of justice. This is confined to such overt acts as may be seen or- heard, and •about which all the jurors present may testify with equal knowledge. Thus, where a verdict for damages is ascertained by aggregation and division, without subsequent ratification, or where it is made to depend upon chance,
This doctrine is fully sustained by the supreme court of Kansas in Johnson v. Husband, 22 Kas., 277; and by the supreme court of Iowa in Wright v. I. & M. Telegraph Co., 20 Iowa, 195, where the cases are reviewed with considerable care by Mr. Justice Cole. See also Cowles v. C., R. I. & P. R. Co., 32 Id., 515. Grennell v. Phillips, 1 Mass., 529. Kruidenier v. Shields, 30 N. W. Rep., 681. Crawford v. State, 2 Yerger, 60. Eldridge v. Todd, 1 Humphrey, 43. Norris v. The State, 3 Id., 333. United States v. Reid, 12 Howard, 361.
It appears from the record that the district court entered upon an examination of the question of misconduct of the-
The decision of the district court is therefore reversed, the judgment vacated, and the cause remanded for further proceedings according to law.
Reversed and remanded.