Thomas v. Zushlag

| Tex. | Oct 15, 1860

Bell, J.

—The record contains no statement of the facts given in evidence on the trial. The only questions in the case, therefore, which merit any notice, are those presented by the several bills of exception taken by the defendant in the court below, and to be found in the record.

' In the motion for a new trial, it is stated that the defend- - ant excepted to certain jurors, when they were called, because they did not understand the English language. This statement cannot be regarded. The fact should be shown by a bill of exceptions.

One of the bills of exception states, that when the motion for a new trial was taken up, the defendant offered to prove by jurors the allegations contained in his motion for a new trial, as to the incompétency and incapacity of the jurors, and their disregard of the evidence and charge of the court. Jurors who propose to impeach their own verdict, on the ground that they disregarded the charge of the court and the evidence, ought to be punished for a contempt. As to the question of incompetency and incapacity, the defendant does not show, in his motion for a new trial, that the incompetency and incapacity of the jurors were not known to him before the jury was empanneled: and this is a sufficient reason for sustaining the action of the district judge in this particular. Upon the other question, of the right of the defendant to a new trial because of the deafness of one of the jurors, it is enough to say, that the defendant ought to have presented to the court some other evidence of the fact relied upon than his own unsupported affidavit.

Upon questions such as are here presented, this court will not undertake to revise the action of the district judge, except in a very clear case of error, and where it is apparent that the party complaining has been denied a right, and may have sustained injury by such denial.

It was not error for the court below, under the circumstances, to require the jury to amend their verdict, nor was it error to permit the plaintiff to enter a remittitur of a part of the amount of the verdict.

The judgment of the court below is

Aeeiiuied.