Ensign v. Harney

• Decision Date: 18 December 1883
• Citation: 18 N.W. 73,15 Neb. 330
• Parties: GRANVILLE ENSIGN, PLAINTIFF IN ERROR, v. CHARLES E. HARNEY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

18 N.W. 73

15 Neb. 330

GRANVILLE ENSIGN, PLAINTIFF IN ERROR, v. CHARLES E. HARNEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 18, 1883

ERROR to the district court for Lancaster county. Tried below before POUND, J.

REVERSED AND REMANDED.

Lamb Billingsley & Lamberston, for plaintiff in error.

O. P Mason and L. C. Burr, for defendant in error.

OPINION

MAXWELL, J.

The trial of this case was commenced in the district court of Lancaster county on the 1st day of June, 1883, and continued for several days. On Saturday, June 2d, about 4 o'clock P.M., the court adjourned until the following Monday. Two of the jurors thereupon applied to one of the defendant's attorneys for his horse and buggy to carry them home, a distance of about 12 miles, and return on the following Monday. The attorney readily complied with their request. A verdict having been rendered for the defendant, a motion for a new trial was filed, in which this cause among others was assigned as ground for a new trial. Affidavits were filed in support of the assignment, and facts stated therein were admitted; the only defense being that the transaction was open and above board, and not done with the intention of exercising an influence on the jurors, and in fact it did not have any influence upon them in making up their verdict. It is also said that one of the attorneys for the plaintiff in another case had loaned his horse and buggy to a juror, and no complaint was made. We have only to deal with the case before us.

Jurors are chosen because they are supposed to be indifferent between the parties. At common law it was good cause for challenge that the juror had been an arbitrator on either side; that he had an interest in the cause; that there was an action depending between him and the party; that he had taken money for his verdict; that he had formerly been a juror in the same case; that he was the party, master, servant, counselor, steward, or attorney, etc. 3 Blacks. Com., 363-4. And the common law in that regard prevails in this state.

Unless fair-minded, unbiased jurors can be selected, a trial becomes a mere farce, dependent not upon the merits of the case, but upon extraneous circumstances, such as the bias, prejudice, or interest of the jury. To determine the competency of a juror, an oath is administered to him and he is required to answer all questions touching his qualifications as a juror, not generally, but in that particular case. Great latitude is allowed in such an examination, and if it appears probable that the juror is not indifferent between the parties, he is excluded. Where a juror is accepted as being impartial, he must remain so during the trial. To permit him to accept favors from either party is to put him under obligations to such party, the tendency of which is to bias his judgment. Nor is it material that such favors were not intended to influence the juror, as it can not be determined how far they may have had that effect; and such misconduct will vitiate the verdict.

In Tomlinson v. Derby, 14 Am. Law Reg. 543, one of the jurors during the progress of the trial expressed an opinion as to the merits of the case to persons who were not on...