10 Kan. 598 | Kan. | 1873
The opinion of the court was delivered by
The judgment in this case must be reversed and a new trial granted for misconduct of the plain
It is claimed that the.misconduct of said Ham was known to the defendants during the trial, or prior thereto, and that they did not then, as it is claimed they should have done, raise any objection to the jury as impanneled, but waited until the verdict was returned before they raised any such objection. Now it is not shown that the defendants knew of such misconduct prior to the trial; and we suppose it will hardly be urged seriously that tlie objections should have been raised during the trial, when the misconduct was not discovered prior thereto. Are the. defendants bound in such a case to charge in the face of the jury before whom they are trying their cause that the jury has been packed? Must the trial be postponed for the purpose of going into a long and tedious investigation of the question whether the jury has been packed or not? And if either party cannot go into the investigation immediately, on account of absent witnesses, or the like, must the trial be still further postponed for such investigation? Or in such a case, must the jury hear and determine the cause, knowing at the same time that such question is pending over them? We think it is sufficient for the defendants (or any innocent and injured party) to raise tlie question on a motion for a new trial, after verdict.
There are many other questions involved in this case, but we shall not examine them at the present time.. When the case shall appear on another trial to have been fairly and honestly tried by the parties; when it shall appear that it was tried without any unwarrantable interference by the parties with the selection of the jury; when it shall appear that the case was tried without any other unfair or unjustifiable means being used to influence the jury or some individual member or members thereof, then we shall be willing to examine the other questions. The judgment of the court below is reversed.