Alderman v. Cobb

Decision Date19 April 1884
Docket Number10,497
Citation94 Ind. 602
PartiesAlderman v. Cobb
CourtIndiana Supreme Court

From the Allen Circuit Court.

The judgment is affirmed with costs.

S. E. Sinclair and H. C. Hanna, for appellant.

R. S. Robertson and J. B. Harper, for appellee.


Howk, C. J.

The only error assigned by the appellant, upon the record of this cause, is the overruling of his motion for a new trial. The only cause for such new trial relied upon, in argument, by the appellant's counsel for the reversal of the judgment, is alleged misconduct of the jury, in this: That two jurors, "whose names are unknown to this defendant," were sleeping during the trial and the argument of the cause.

This is the second statutory cause for a new trial, and must be sustained by affidavit showing its truth. Sections 559 and 562, R. S. 1881. It appears from the transcript, that the appellant did file his own affidavit, in support of this cause for a new trial. But the affidavit was not made a part of the record, either by a bill of exceptions or by an order of court. Therefore, the affidavit is not properly in the record, and can not be considered here. This is settled by many decisions of this court. Fryberger v. Perkins, 66 Ind. 19; Williams v. Potter, 72 Ind. 354; Iles v. Watson, 76 Ind. 359.

We find no error in the record.

The judgment is affirmed with costs.

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2 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • October 7, 1975
    ...which would cause this court to reverse. The issue of jury misconduct in this particular case involves a sleeping juror. In Alderman v. Cobb (1884), 94 Ind. 602, where it was alleged that two jurors were asleep during the trial, the affidavit in support of that allegation was not properly m......
  • Smith v. State
    • United States
    • Indiana Supreme Court
    • April 1, 1982
    ...which deal with the inattention of jurors due to sleepiness are Merry v. State, (1975) 166 Ind.App. 199, 335 N.E.2d 249, and Alderman v. Cobb, (1884) 94 Ind. 602. It has been established by those cases that there is a two-step approach in determining whether prejudice has resulted from the ......

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