49 Kan. 679 | Kan. | 1892
The defendant, William E. Plum, was charged upon two counts of an information with violating the provisions of tlje prohibitory liquor law. He was found guilty upon the first count, and sentenced to 30 days in the county jail, to pay a fine of $100 and costs, and to stand committed to the county jail until the fine and costs were paid. He appeals to this court, and complains of various rulings.
After the regular panel of jurors had been exhausted, and the sheriff had commenced to fill the panel with talesmen, the defendant objected to the sheriff or his deputies being permitted to name the talesmen because of the interest they might have in the result of the trial. The court, with the consent of both parties, then proceeded to name the talesmen, and among such names placed one as talesman who had been previously selected by the sheriff. Upon this talesman the defendant exhausted his last peremptory challenge. It is urged that this is a sufficient cause for a new trial. We do not think so. There is nothing in the record tending to show that the sheriff was guilty of partiality in naming the juror, or that the court knew the sheriff had summoned this juror. As the record is presented, the jury impaneled and sworn in the cause were properly qualified and free from all legal exceptions.
In order to establish that hop tonic, which the defendant admitted he sold, was intoxicating, the county attorney, sheriff, deputy sheriff and county clerk testified they drank the same, and that it had an intoxicating effect. It is claimed the court erred in admitting the testimony of these officials, and also that the defendant ought not to have been convicted upon testimony from such interested witnesses. Under the law, these officials were competent witnesses. Their credibility and the weight of their testimony were for the jury and the trial court.
“It is the duty of a trial court, whenever the verdict is*684 clearly against the weight or preponderance of the evidence, to set it aside and grant a new trial. The supreme court, however, has no such power. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict — not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact —and where the trial court approves the verdict by refusing to set it aside, and by rendering a judgment thereon, the supreme court cannot disturb it, although a preponderance of the evidence may seem to be against the verdict.” (U. P. Rly. Co. v. Diehl, 33 Kas. 422.)
It is further claimed that the verdict returned by the jury was the result of a compromise, and therefore must be set aside. The general rule is, that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. The affidavits in this case tend to show that several jurors stated they “only agreed to the verdict in order to avoid a hung jury.” These were statements made after the verdict concerning matters which essentially inhere in it, and therefore cannot be considered to impeach or overthrow it.
“Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to •disturb the expressed conclusions of 12; its tendency is to induce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict.” (Perry v. Bailey, 12 Kas. 539.)
A question is also presented concerning the costs which were adjudged against the defendant. The rule is-properly stated in The State v. Brooks, 33 Kas. 708:
“Where a defendant is prosecuted in separate counts for several violations of the prohibitory liquor law, and is found guilty under some of the counts and not guilty under the others, he should not be required to pay costs accruing under the counts under which he is acquitted, but should recover costs.”
If the costs have been improperly taxed, the trial court will undoubtedly correct the same, if its attention is properly called thereto. Other alleged errors are referred to in the briefs, but even if the case were properly here upon a full transcript, we perceive nothing substantial in the complaints.
The judgment of the district court will be affirmed.
