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to whether the plaintiff used proper diligence | seized by attachment, defendants were only in reducing the amount of damages as much responsible for damages up to the time of as possible. Certainly, this evidence was such seizure, although the attaching officer proper in mitigation of damages. It appears may not have afterwards proceeded legally to be a harsh rule that would require that de with the property. In trespass de bonis fendant, finding his property commingled | asportatis, the defendant may prove in mitiwith that of another, and driving it all off, gation of damages that the goods did not admitting the trespass, should not be al. belong to the plaintiff, and that they have lowed, under instructions, the benefit of evi gone to the use of the owner, although, in dence showing want of malice on his part, taking them, the defendant acted without aunegligence on part of plaintiff, necessity for thority. Squire v. Hollenbeck, 9 Pick. 551. his action, and even custom; and when such Also, City of Lowell V. Parker, 10 Metc. evidence is given, as was done in this case, (Mass.) 309; Kaley v. Shed, Id. 317. This the jury should have been allowed to consid doctrine is recognized and affirmed in Criner er it in mitigation. This proposition appears v. Pike, 2 Head, 401. The true rule would to us to be unquestionable, and needs no au appear to be that where a stranger to the thority except good sense and common jus title seeks, in mitigation of damages, to show tice to sustain it. In argument, counsel for that the owner has the property, he must plaintiff claims that defendant could not so also show that he acted in good faith, or at mitigate damages because he had no right to least that he was not in collusion with the seize his own sheep, they being in the posses owner to forcibly deprive the person in possion of the special owner, Padilla. This con session of the property. Certainly, it should tention is not borne out by the evidence, for be for the jury to decide whether he las though, under objection of plaintiff, defend shown this; and, if so, then his defense ant was not allowed to prove his contract should be considered in mitigation, particuwith the special owner, he does swear that larly when it is shown, as in this case, that under that contract he had a right to drive the trespasser was seeking to recover his his sheep, and this is uncontradicted. Under

property upon common grazing the instructions given, and by refusal of ground, and that the trespass was necessarithose asked, the jury were not allowed to ly committed in so recovering his own. Of take into consideration the fact that 1,274 course, the aggravation or increase of damhead of the sheep taken by defendant, in ages by the taking of the sheep to Los Lunas, which plaintiff had special property, while instead of Pajarito or Isleta, was for the Lewis was general owner, were turned over jury to consider; but we cannot agree with by defendant to Lewis, and by him credited the defendant in error that the instructions to plaintiff on his account. There is a differ- given on his behalf, (Nos. 3 and 5,) and of ence of opinion between plaintiff and Jose the court's motion, (Nos. 2, 3, and 4,) embodLewis, agent for the general owner, as to led the law, as applicable to this cause. The whether, at the time of the trespass, the sheep court erred in giving the instructions named were all to have been turned over to Lewis. above, and further erred in refusing to give But in 2 Sedg. Dam. 526, note (a), it is the instructions asked by the defendant. It said: “The fact that property taken by a is admitted by counsel that the record here trespasser has been appropriated to the own showing instruction No. 5 given of court's er's use by his consent, express or implied, motion, identical with No. 2 asked by de goes in mitigation." See, also, 1 Suth. Dain. fendant below, is erroneous, and that said 210.

instruction was not given, but refused. DeIt is claimed that plaintiff was not obliged fendant in error contends that the instructo go to Los Lunas after his sheep, but that tions given by the court were not excepted it was the duty of defendant to return them to as a whole. The record shows that each to the place from whence taken. This may was excepted to. Defendant in error turbe true. It may be that defendant should he ther contends that seriatim exceptions should compelled to pay for the additional damage have been taken to the refusal to give indone by his failure to so return the sheep; structions asked by the defendant. The law but the sheep having commingled, it being of this territory requires that the court necessary to separate them, does not the fact should instruct the jury as to all the law of that the plaintiff failed to take any steps the case; but it is not necessary for us to go whatsoever to regain the property himself, further, as the instructions asked and refused but calmly waited until the general owner embodied the law, as we find it applicable made a demand upon defendant, and took to the case before us, as far as they went. the sheer, show an implied assent, at least, The judgment must be reversed, and cause to the taking by Lewis? In Montgomery v. remanded. Wilson, 48 Vt. 616, it was held that where defendants had driven off plaintiff's cattle, O'BRIEN, O. J., and LEE, J., concur. and, while in their possession, same were SEEDS, J., dissents.

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justify us in setting aside the verdict of his TERRITORY V. EDIB.

guilt, and awarding him a new trial. At the

time this case was first heard the opinion of (Supreme Court of New Mexico. Aug. 17, 1893.)

the supreme court in the Mattox Case had

not been published, and the opinion of this CRIMINAL LAW-MISCONDUCT OF JURI.

court was prepared in accordance with what In a criminal case it appeared that, we believed to be the prevailing doctrine in after the jury had arrived at a verdict of guilty, one of the jurors went into another room, and

this country. The defendant in the Mattox had an officer write out the verdict, directed, in

Case, charged with the murder of one Joho substance, by the juror, who returned with it Mullen in a part of the Indian Territory to the jury room. Held, that the verdict should

embraced within the judicial district of the not be disturbed, the harmlessness of the transaction to defendant's rights being apparent.

state of Kansas, was tried and convicted in Seeds and Fall, JJ., dissenting. 30 Pac. Rep. the district court of the United States at 851, affirmed. Mattox v. U. S., 13 Sup. Ct. Wichita. Sentence of death was pronounced Rep. 50, 146 U. S. 140, distinguished.

upon the accused, and he took the case to On rehearing.

the supreme court of the United States upon

a writ of error, where the judgment was reO'BRIEN, C. J. At the last term the de versed upon various alleged grounds of error. fendant moved for and obtained a rehearing In that case the defendant, in support of his in this cause. He then insisted, as he now motion for a new trial, offered in the court insists, that the rule adopted by us in decid below the affidavits of two of the trial jurors ing it, as to the effect of the misconduct of to the effect that the bailits who had charge the trial jury, (see opinion 30 Pac. Rep. 851,) of the jury, after the cause had been heard is at variance with the doctrine enunciated and submitted, and while they were deliberin the federal supreme court in the case of ating upon their verdict, in the presence Mattox v. U. S., 13 Sup. Ct. Rep. 50, 146 U. S. and hearing of the jurors, or a part of 140. It is, perhaps, at least in a partial them, speaking of the case, said: “After you sense, to be regretted that this judgment fellows get through with this case, it will must be affirmed. The evidence, we are free be tried again down there. Thompson has to admit, is not overwhelmingly convincing. poison in a bottle that them fellows tried to But it is legally sufficient to warrant the ver give him." And at another time, in the diot. In such case we are not at liberty to presence and hearing of the jury, or a part interfere with the finding of the jury. From of them, referring to the defendant, Clyde the very nature of the crime, it would be un Mattox, he said, “This is the third fellow he reasonable to expect superabundant evidence has killed." The affidavit of another juror of guilt. Men of loose morals, intent alike to the same effect, in respect of the re upon the gratification of their inordinate mark of the bailiff as to Thompson, was desires and the ruin of female purity, almost also offered, and in addition the affidavits of invariably seek seclusion as most opportune eight of the jurors, including the three just for the gratification of their reckless pas mentioned, "that after said cause had been sions. The vict of this defendant's lust submitted to the jury, and while the jury was almost a child, a stranger in a strange was deliberating of their verdict, and before city, without a friend, except a father, to they had agreed upon a verdict in the case, vindicate her honor. The jury heard the par a certain newspaper, printed and published rative of the transaction, as detailed by her, in the city of Wichita, Kansas, known as as well as by the defendant. Her version the Wichita Daily Eagle, of the date of was believed. His, at least so far as it was Thursday morning, October 8, 1891, was ininconsistent with hers, was discredited. We troduced into the jury room; that said paper have as little reason as we have right to crit contained a comment upon the case under icise the result. The testimony of the de consideration by said jury, and that said fendant, whether believed by the jury or not, comment upon said case so under consideras disclosed by the record, exhibits him ation by said jury was read to the jury, in man of low instincts and depraved morals. their presence and hearing; that the comIt shows that he had planned the girl's de ment so read to said jury is found upon the filement, and used the most insidious means fifth page of said paper, and in the third for its accomplishment. If not, why did he column of said page, and is as follows: "The invite the girl, almost a stranger to him, Mattox Case. The Jury Retired at Noon, into his buggy? why did he keep her out Yesterday, and is Still Out. The destiny ot all the afternoon? why did he dose her with Clyde Mattox is now in the hands of the wine? why did he not return before dark ? twelve citizens of Kansas comprising the why did he take her to his private room? jury in this case. If he is not found guilty of why did he lock the door, and detain her murder, he is a lucky man, for the evidence there?-if he did not intend, when he first against him was very strong, or at least saw her on the sidewalk, to make her the appeared to be to an outsider. The case was victim of his lust? He was a man of mature given to the jury at noon yesterday, and it years. She was a comparative child. In a was expected that their deliberations would case of this character, nothing short of error not last an hour before they would return prejudicial to the defendant's rights would a verdict,'"etc. The bill of exceptions states

a

that these affidavits and a copy of the news. paper were offered in the trial court by the defendant in support of his motion for a new trial, and by the court excluded. Chief Justice Fuller, in delivering the opinion of the supreme court, says: “Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and in

validate the verdict, at least unless their the paniessing his punishment at 5 years in

harmlessness is made to appear.” The chief justice continues: “The jury in the case be fore us retired to consider of their verdict on the 7th of October, and had not agreed on the morning of the 8th, when the newspaper article was read to them. It is not open to reasonable doubt that the tendency of that article was injurious to the defendant. Statements that the defendant had been tried for his life once before, that the evidence against him was claimed to be very strong by those who had heard all the testimony, that the argument for the prosecution was such that the defendant's friends gave up all hope of any result but conviction, and that it was expected that the deliberations of the jury would not last an hour before they would return a verdict, could have no other tendency. Nor can it be legitimately contended that the misconduct of the bailiff could have been otherwise than prejudicial. Information that this was the third person Clyde Mattox had killed, coming from the officer in charge, precludes any other conclusion. We should therefore be compelled to reverse the judgment because the affidavits were not received and considered by the court; but another ground exists, upon which we must not only do this, but direct a new trial to be granted." It will be apparent, upon comparing the affidavits set out in the opinion in this case with the affidavits in the Mattox Case, that there are few, if any, points of similarity. The bill of exceptions in the case at bar contains another affidavit, made by Officer Hubbell, and which was considered by the court upon hearing the motion for a new trial, which unmistakably shows that we are not in conflict with the doctrine found in the case cited, in deciding this case

we did. That affidavit is as follows: "Thomas S. Hubbell, being first duly sworn, on his oath deposes and says that he is a deputy sheriff of Bernalillo county, in the territory of New Mexico; that on the night of the 25th of March, 1891, he slept in the courthouse in Bernalillo county, with Vicente Armijo, court bailiff, who had charge of the petit jury during its consideration of the case of the Territory of New Mexico versus V. P. Edie, charged with rape; that said jury was kept together that night. in a room leading off from said court room; that about the hour of six and a half o'clock on the morning of the 26th of March, 1891, one of said jurors, named Jose Dario Aragon, came out of the jury room into the court room, and asked

affiant if he could and would write out the forin of a verdict for the use of the jury; dat asliant then took up a piece of paper, and with a lead pencil proceeded to write out the form of a verdict, and he then asked the said juror whether the form should be that of guilty or not guilty; that the said juror replied that the form should be guilty, and the penitentiary; that affiant then completed a form of verdict in accordance with such directions, and handed the same to said juror, who then immediately returned into the jury room. Affiant says that no conversation occurred between him and the said juror, or with any other person in his presence, about said case, other than is herein stated, and further he saith not." This affdavit, and the one set out in the opinion, negative the possibility of prejudice to de fendant's rights, and render apparent the harmlessness of the transaction. The facts revealed by the :ffidavits in the Mattox Case were radically different, and rendered not only possible, but highly probable, the injurious effect of the misconduct charged and admitted. It would subserve no useful purpose to make extended remarks upon the great dissimilarity between the facts in the two cases. We are free to admit that, if the affidavits in the present case disclosed even a fractional part of the outrageous misconduct apparent in the Mattox Case, we would have no hesitancy in reversing the judgment and awarding a new trial.

Defendant contends that the rule followed in the decision of the present case, to wit, “it is now almost universally established that, unless it appears that such interference takes place for some corrupt or sinister pur. pose, or that such conduct has been prompted by the parties, and has resulted injuriously to one of such parties, the verdict will not be disturbed, either in civil or criminal cases," is in irreconcilable conflict with the doctrine announced in the Mattox Case by the federal supreme court. The language chosen by us to express the rule may not be faultless. It was used in the light of the record disclosing the misconduct of one of the trial jurors. That record, containing the two affidavits of the deputy sheriff, instead of showing prejudicial error, renders apparent the harmlessness of the improper transaction. It is to be presumed that the affidavits fully reveal all the facts and circumstances of the alleged misconduct. If so, it is manifest that the error committed was not injurious to the rights of the defendant. In the case before the United States supreme court the affidavits for a new trial showed that the bailiff stated to the jury that Mullen was the third person killed by Mattox. They further showed that a local newspaper, containing a bitter article upon the bad character of the defendant, and the views of the community as to the proof of his guilt, had been introduced into the jury

as

room, and read to the jurors, while exam eral decisions, might not be attended with ining the testimony, and deliberating upon great danger. Still, it would have a tend. their verdict, and the language used in the ency to render the administration of crimopinion was predicated upon these facts. inal justice almost impossible in New MexPrejudicial error is as apparent in the fed ico. A harmless whisper or a meaningless eral case as is its absence in the case before nod might be sufficient, in certain cases, to us. But, if modifying the general rule be cheat the gallows of a deserving victim. fore cited, and adopting for the purpose of Hence we are constrained to hold, in the pres this decision the doctrine of the supreme ent case, that the trial judge was fully justicourt of the United States in the Mattox fied in refusing to set aside the verdict and Case, that “private communications, possibly grant a new trial. We are satisfied that the prejudicial, between jurors and third persons, correct reading of the two affidavits made by or witnesses, or the officer in charge, are Deputy Sheriff Hubbell makes apparent the absolutely forbidden, and invalidate the ver harmlessness of the communication between dict, at least until their harmlessness is made himself and the derelict juror. As the foreto appear," we must still hold that the con going is the chief error, deserving attention, clusion reached may safely rest upon the upon which the defendant relies for a reprinciple embodied in the latter rule, as the versal, we are unable to change our opinion, record makes apparent the harmlessness of and the judgment must stand affirmed. the alleged misconduct. The precise point presented for determination in the Mattox FREEMAN, J., concurs.

the

in refusing to receive the jurors' affidavits SEEDS, J., (dissenting.) Not being able

showing the misconduct complained of, and to arrive at the same conclusion as the manot error in refusing to set aside the verdict jority of the court in reference to the dison account of such misconduct. In the pres- position of this case, I have thought proper ent case the affidavits of the deputy sheriff

to briefly give my reasons for dissenting. were received and considered, and were The case is before us upon a rehearing. I found by the trial judge insufficient to war am perfectly satisfied with the result upon rant the vacating of the verdict. In so do

the merits, but us to the error complained ing, can we say that the rule announced in

of, in regard to the reprehensible conduct the Mattox Case was violated?

Can we say of one of the jurors, I feel that we have, that the judge below abused the discretion

in our previous decision, laid down a rule with which the law invests him, in conclud.

which, while then in consonance with the ing, upon a full and fair consideration of the

great weight of authority, is now, by reaaffidavits presented, that the harmlessness son of a late decision of the supreme court of the transaction was apparent? If we do, of the United States, not law for this court we establish a rule fraught with danger to We are bound by the rulings of the supreme the best interests of the community, and add court of the United States. In the case of a new element of uncertainty to the deter Mattox v. U. S., 146 U. S. 140, 150, 13 Sup. mination of criminal prosecutions. We do Ct. Rep. 50, in discussing the effect of comnot overlook defendant's rights. Great as is munications made to a juror or jurors by the crime of which he has been convicted, an officer of the court, Chief Justice Fuller it would be a still greater crime to allow

says: “Private communications, possibly such conviction to stand, if procured in vio prejudicial, between jurors and third perlation of his constitutional rights. The for sons, or witnesses, or the officer in charge, cible language used by Chief Justice Fuller are absolutely forbidden, and invalidate the was, no doubt, inspired by the nature of the verdict, at least unless their harmlessness record before him; but adopt it as a rule in is made to appear.” In the previous decithis territory, in the sense claimed for it by sion of this case, (Territory v. Edie, 30 Pac the appellant, and New Mexico would soon Rep. 851,) Chief Justice O'Brien says: “It is become the nursery of crime, and the para now almost universally established that, undise of criminals. In other countries, where less it appears that such interference takes English is the language of all the people; | place for some corrupt or sinister purpose, where court officers and jurors understand or that such conduct has been prompted by the language of the judge; where the bailiff the parties, and has resulted injuriously to in charge fully realizes the nature of his one of such parties, the verdict will not be oath, and the obligations thereof; where all disturbed, either in civil or criminal cases." or a greater part of the jurors are able to It is quite apparent that these two rules are formulate and write down their verdict with opposed to each other. The one throws the out assistance from others; where the facil burden upon the territory to prove the acts ities and conveniences surrounding the jurors done not prejudicial, they being assumed are ample and suitable; where outside in to be such. The other casts the burden terference and favoritism are regarded as upon the accused to prove the acts injurious evidence of corruption,-the adoption of the or prejudicial to him. The one enunciated rule, in the limited sense claimed by the ap by the United States supreme court must pellant, though not generally favored in govern, provided it is a rule adopted by states not bound, as we are, to follow fed that court upon a point directly before them,

It is suggested that the rule is obiter dictum, the facts in the case in accordance with the
but I cannot so consider it. In the case law. It must, then, be presumed that the
where this rule is laid down, it is true that lower court passed upon the affidavits before
the record shows that the lower court re it under the view of the law as then held
fused to consider the affidavits of certain by this court,-that, if there was any injury
jurors which proved the acts complained of; in the act complained of by the accused, it
and the point was urged that an appellate was his duty to establish "that such interfer-
court will not review the action of a trial ence takes place for some corrupt or sinister
court in overruling a motion for a new trial, purpose, or that such conduct has been prompt-
that being in the sound discretion of the ed by the parties, and has resulted injurious-
trial court. This was not denied, but the ly to one of such parties.” It may be conced-
court held that, as the trial court refused ed that the accused failed to meet the re-
to consider the affidavits, it had not exer quirements of this rule. But that was not the
cised its discretion at all, and hence it pro law, and if the law, as now enunciated, had
ceeded to consider whether that court ought been the rule by which the court had exercis-
to have considered the affidavits, and how, ed its discretion, it is possible that a new trial
and, in arriving at its conclusion that there might have been granted the accused. It is
was error in refusing to consider the aff no answer to this position to say that the
davits, the court shows why, legally, they territory introduced another affidavit which
ought to have been considered, and in what tends to show the harmlessness of the act
manner. If the court had stopped short of complained of, for it could not have been
enunciating the rule which they did, if it is for that specific purpose, as there was no
law, they would have sent the accused back law then which required such a procedure.
to be tried in accordance with a rule which It may be urged that we can readily see
they recognized not to be law. The ques by the affidavits that the act was harmless,
tion before the supreme court was not, alone, and hence it is a "vain thing” to reverse
ought the affidavits to have been received, the case, and send it back for a new trial.
but for what purpose? And the decision is I have shown already that I do not draw
that affidavits may be received to show that that conclusion from the affidavits, and it is
acts have transpired with or in the pres- possible that the trial court might not ar-
ence of jurors possibly prejudicial to the rive at that conclusion. But that is not the
accused, and, if so, then a sound discretion question. The accused was entitled, under
would at once award him a new trial, unless the law, to have his motion for a new trial
the prosecution made their harmlessness to passed upon, in the first place, by the trial
appear. Without the rule laid down the court, not by this court, according to the
decision would have been valueless to the due course of law. He was entitled to a
law, and possibly only a temporary benefit sound legal discretion upon that right, and,
to the accused. It is, however, urged that pot having · had such a ruling, he has pre-
the affidavits in this case show that the act sumptively been prejudiced. Crime ought
was harmless. There are two objections to to be punished with as little delay as possi-
this contention: First, I think that they ble, consistent with the orderly administra-
show very plainly the possibility of prejudice, tion of law, and without any sentimentality.
and not one thing to explain a way that possi- | But there is, in my judgment, as great a dan-
ble prejudice. It was well insisted, upon ger, if not greater, in turning aside from
argument, that there was a possibility-yes, the proper rules for the administration of
a probability-that the juror who came and criminal procedure, even where it may be
obtained the verdict in the handwriting of clearly seen that no practical injustice is
an influential officer might, with great ef being done, as there is in giving way to
fectiveness, overcome the scruples of a dis the sentimental expressions of our nature.
senting juror by showing him that his espe It is far better that some acts of wrong
cial friend or master thought the accused go "unwhipped of justice” than that it be
guilty. Where is there anything in the affi. known that juries may be tampered with,
davits to show that this possibility did not and yet their verdicts stand. The sure, un-
occur? If there is nothing to show this changing, and absolutely pure administra-
harmlessness in the record, it must be pre tion of the forms of law is the only safe
sumed that the accused was injured. But, protection for innocence and liberty, and un-
in the second place, I do not believe that der such administration it is hardly probable
the lower court ever used its sound discre that crime will fail of being punished. I
tion upon the matter, and hence, under the am of the opinion that the judgment ought
acknowledged point of the decision of Mat to be reversed.
tox v. U. S., supra, he is entitled to a new
trial. I understand that a "sound discre FALL, J. I agree with the conclusions
tion" means a discretion exercised upon all reached by Judge SEEDS

v.34P,00.1-4

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