Driver v. Pate
| Decision Date | 02 April 1918 |
| Docket Number | 5 Div. 279 |
| Parties | DRIVER v. PATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Chambers County; S.L. Brewer, Judge.
Action by J.H. Pate against A.J. Driver, Jr. Judgment for plaintiff and defendant appeals. Reversed and remanded for new trial.
Strother & Hines, of La Fayette, and N.D. Denson & Son, of Opelika for appellant.
C.S Moon, of La Fayette, for appellee.
This is an action for work and labor, the complaint containing but one count. Judgment for plaintiff, and defendant appeals.
The assignments of error relate only to the refusal of the court to grant a new trial.
The principal point made in the motion for the setting aside of the verdict and the granting of a new trial rests upon the alleged misconduct of the sheriff of the county while the jury was deliberating in respect of their verdict; the contention being that the sheriff, after the jury had been deliberating on the case for several hours, and after the court had adjourned for the day went into the room where the jurors were, and among other things stated to the jury in substance that the jury would have to arrive at a verdict in the case, that the court would not accept or consent to a mistrial, but would keep them together until they made a verdict, and that this occurred about 9 or 10 o'clock at night. On the hearing of the motion it was shown by the affidavits of the foreman of the jury and other members thereof that the sheriff did come into their presence while they were deliberating on the case and make the statement as alleged in the third and fourth grounds of the motion, and in addition to the statement contained therein made the remark to the jury as he was leaving, "Fellows, I am going home and go to bed; it is up to you all; it is either make a verdict or stay here all night." It was also shown that before the sheriff arrived the jury appeared to be hopelessly divided, and it seemed impossible for them to agree upon a verdict. Some of them requested the sheriff to send for the presiding judge, stating that they wanted to see if there was not some way they could get out and go home, as it appeared impossible for them to agree on a verdict; that later the sheriff came back into the room where the jury were deliberating and said "that the judge said he wouldn't accept a mistrial or anything except a verdict one way or the other; that he was not going to have this case...
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Turner v. Great N. Ry. Co.
...v. State, 127 Ohio St. 235, 187 N.E. 862, 90 A.L.R. 242;State v. Place, 20 S.D. 489, 107 N.W. 829, 11 Ann.Cas. 1129;Driver v. Pate, 16 Ala.App. 418, 78 So. 412. There is a very strong circumstance in this case which indicates that the jury were influenced by statements made by the bailiffs,......
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...of a jury that a disagreement will not be accepted constitute misconduct of the court and are grounds for a new trial. Driver v. Pace, 78 So. 412; Mattox v. United States, 146 U.S. 140, 36 L. ed. 917, 13 S.Ct. 50; Cole v. Swan, 4 G. Greene, 32; State v. La Grange, 99 Iowa 10, 68 N.W. 557; S......
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...must be governed is not only that the misconduct complained of did affect the verdict, but might it have done so. In Driver v. Pate, 16 Ala.App. 418, 78 So. 412, 413, this court said: "* * * the question is not whether this misconduct on his part did affect the verdict, for it has been held......
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