43 P.2d 247 | Mont. | 1935
Citing: Maryland Casualty Co. v. Seattle Electric Co.,
The only specification of error made is directed to the ruling of the trial court in denying the motion for a new trial. One of the grounds of the motion was misconduct of the jury by which the defendant was prevented from having a fair trial. Affidavits were made by four of the trial jurors and filed in support of this motion. It appears from the record that one M.M. Trout was selected as a trial juror and acted as such on the trial of this case. From the affidavit of the official court reporter, it appears that, on the examination of juror Trout as to his qualifications, he, in response to inquiry by counsel, stated that he had no opinion which would require evidence to remove, and that he would try the case solely upon the evidence and the law. From the affidavit of Clarence Everson, one of the trial jurors, it appears that, after the jury had retired to the jury-room and commenced the discussion of the evidence in the case, juror Trout said "that there was nothing to do with this case excepting to return a verdict in favor of the plaintiff. That he knew Mr. Hough was not the kind of a man that would talk someone into buying a radio or trying to make him pay for it unless he wanted it. That he had known Mr. Hough for many years and that he had been in Hough's place of business the day before the trial and had heard this particular radio in question played." The affidavits of three other jurors were to the same effect.
Section 9397, Revised Codes 1921, provides that: "The former[1] verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party. * * * 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the *31 determination of chance, such misconduct may be proved by the affidavit of any one of the jurors."
Counsel for the defendant argues that under this subdivision of the statute the interpretation heretofore adopted of it by this court is erroneous, as applied to the facts in this case, and that, unless the misconduct of a juror, such as is here disclosed, may be shown by affidavits of other jurors, the defendant is powerless to obtain relief.
In the case of State v. Gies,
This court has consistently adhered to the rule that jurors may not impeach their verdict by affidavit in support of a *32
motion for new trial, except as expressly provided by the statute, as is illustrated by the following decisions: Johnson
v. Horn,
Counsel for defendant invites our attention to the rule announced by the supreme court of Washington under statutes not unlike our own, which is at variance with the decisions of this court cited supra, as is illustrated by the cases of State v.Parker,
The judgment is affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES MATTHEWS and STEWART concur.
MR. JUSTICE MORRIS, being absent on account of illness, takes no part in the foregoing decision. *33