Kennedy v. Holladay

• Decision Date: 15 June 1891
• Citation: 16 S.W. 688,105 Mo. 24
• Parties: KENNEDY v. HOLLADAY.
• Court: Missouri Supreme Court

16 S.W. 688

105 Mo. 24

KENNEDY v. HOLLADAY.

Supreme Court of Missouri, Division No. 1.

June 15, 1891.

MISCONDUCT OF JURORS — TREATING BY PARTY — GRAND JURORS AS WITNESSES — BILL OF EXCEPTIONS.

1. Three or four days before the trial defendant negotiated with one juror for a team of mules, and with another for employment in defendant's business. The mule trade was consummated during the trial, and a fair price was paid. The jurors were strangers to defendant, did not know he had a case in court, or that they would be called as jurors therein, and defendant had no reason to believe his case would be tried that term. In the evening of the day before the verdict defendant invited two of his friends to partake of some oysters, and, upon the suggestion of some one in a crowd standing near, defendant invited them all to join. Among these was the juror whom defendant had agreed to employ, but he was not aware of this. During the progress of the meal another juror came in, and by all the party, except defendant, was asked to partake of the treat, which he did, and defendant paid the bill for the entire party. There was nothing to show that the jurors were influenced by any of these matters, or that the evidence did not justify the verdict. Held, a new trial was properly refused.

2. It is not error to reject evidence of grand jurors disclosing testimony given before the grand jury. Rev. St. Mo. 1879, §§ 1791-1793.

Appeal from circuit court, Madison county.

J. Perry Johnson, for appellant. B. B. Cahoon, S. M. Chapman, Thos. Holladay, and Carter & Weber, for respondent.

BRACE, J.

This is an action for damages for malicious prosecution. Verdict and judgment for defendant. Plaintiff appeals. The evidence in the case is not preserved in the bill of exceptions. The assigned errors relied on for reversal are the refusal of the court to admit the testimony of two grand jurors, the admission of statements made by the defendant before the grand jury, in giving his testimony; and the refusal of the court to grant a new trial on the ground alleged in the motion therefor, — that, pending the trial, the jury were tampered with by defendant.

1. There was no error in the refusal of the court to permit the depositions of the two grand jurors, disclosing evidence given before the grand jury, to be read as evidence for the plaintiff. Rev. St. 1879, §§ 1791, 1793; Beam v. Link, 27 Mo. 261; Tindle v. Nichols, 20 Mo. 326; State v. Thomas, 99 Mo. 235, 12 S. W. Rep. 643.

2. In order that an appellate court may determine whether the trial court has committed error in the admission of evidence, the evidence must be set out in the bill of exceptions, so that it can be seen whether the evidence is admissible or not, and, if inadmissible, whether the evidence is harmless, or of such a character as could have affected the result. The bill of exceptions should also show the time and manner in which objection thereto was made and exception taken, in order that the appellate court can see that the objection was properly saved. In the absence of the evidence, and without any knowledge of the connection in which it was admitted, and how excepted to, it is impossible to tell whether the court committed reversible error in its admission, or whether a proper exception thereto was saved. Every presumption being in favor of the correct action of the trial court, when parties undertake to overthrow that presumption the least that can be expected of them is that they bring the evidence here in respect of which they claim error was committed in its admission; for without the evidence, and with no knowledge of the circumstances and connection in which it went before the jury, this court cannot do otherwise than refuse to reverse upon any such supposed error.

3. The main point relied upon for a reversal is the refusal of the court to grant a new trial upon the alleged grounds that, pending the trial, three of the jurors, Pierce Worley, D. U. Griffin, and John Wernecke, were tampered with by defendant for the purpose of influencing their verdict. From the affidavits filed upon this issue the material facts seem to be about as follows: The case was tried in Frederick town, Madison county. The defendant lived and did business in Williamsville, Wayne county, about 60 miles distant. The trial seems to have been commenced on Friday, the 30th of September, 1887, and was concluded on Monday, the 3d of October, as appears from the record. The affidavit on the motion for new trial would indicate, however, that the verdict was not returned until the 4th of October. The defendant was using, and in the habit of buying, from time to time to be used, in his business, a large number of mules, and of employing a number of hired hands. On the 26th of September, John Wernecke, who had not then been summoned on the jury, and who was a stranger to the defendant, sought and obtained an introduction to him at Frederick town for the purpose of trying to sell him a pair of mules. He asked $250 for the mules. He had one of them in town, which defendant examined. The next day Wernecke brought in the other mule, and defendant examined it, and told Wernecke he would buy the mules if he would bring both to town, so that he could see them together, and the price was satisfactory. Wernecke agreed to bring them both to town. He was afterwards summoned on the jury, and afterwards brought both the mules to town, — on the 4th of October, — when they agreed upon the price, and they were sold to the defendant for $235. Defendant paid Wernecke $10 on the trade, and he agreed to deliver the mules to defendant at Williamsville after defendant returned home. This sale was open and public, and the price agreed upon was the full and fair value of the mules. The case was not mentioned by either of them at either interview. On the 26th of September, Pierce Worley, who had not then been summoned on the jury, and who was a stranger to the defendant, was introduced to the defendant as a good man and worker by defendant's brother-in-law. Worley sought employment of defendant for himself in defendant's mills and for his wife also to do housework and defendant told him if they would come (to Williamsville) he could give them employment and agreed to do so in that event. The case was not mentioned between them, and there is nothing in the affidavits tending to show that when these transactions were had, on the 26th and 27th of September, either of the two jurors above mentioned had any reason to believe that the defendant had any case in court, or that they would be selected as jurors to try any case, or that defendant had reason to believe that his case would be tried at that term.

On the night of October the 3d the court held a night session, and adjourned about 10 P. M. Just after adjournment, the defendant, with several other parties, came out of the court-house, and were standing in front thereof, when one of the party, named Carlin, said to defendant, "I would like to have some oysters." Defendant replied, "Well, let's have some;" and addressed another of the party, named Lowrance, saying, "Uncle Davy, won't you have some oysters." Lowrance said, "Yes." Then another of the party spoke up, and said, "Why don't you say, `Let's all have some oysters.' Why not take us all down to get some?" Defendant replied, "Very well, let's all have some." The party, consisting of seven persons, who thus accidentally met in front of the court-house, one of whom was Juror Worley, but of whose presence in the crowd at the time of the invitation defendant was not aware, immediately adjourned to the restaurant, about 100 feet distant, which was open and lighted. The oysters were ordered by Holladay for the crowd, and they all sat down. Afterwards Juror Griffin, who was not in the party when the invitation was given, came into the restaurant on the invitation of the keeper, and when he got in the room where this party were seated all the crowd except the defendant, or at least several of them, invited Griffin to join with them in the oysters. Afterwards another party came in and joined the crowd without any invitation. They all sat chatting and cracking jokes in this public room, with open doors, until they had finished their oysters, when they arose, defendant paid the bill, they separated, and each went his own way. The case of Kennedy against Holladay was not mentioned, nor is it shown that the defendant had any conversation with either of the jurors about the case, or about anything else, privately or publicly. The person who came in last and joined in eating the oysters was one L. O. Neider, a witness for the defendant. The plaintiff introduced the affidavits of two witnesses, who state that the said Neider was sitting beside Juror Griffin, and the said Neider was talking to him, with their heads close together, in a low tone of voice; and also the affidavit of another witness, who testifies that on the night of the 3d of October, in a conversation the affiant had with Neider, he (Neider) said that the defendant would win the case, he thought, for he (Neider) had got an expression of the opinion of two of the jurors. In order to discuss any of the grounds for new trial based upon these affidavits, it must be assumed that the record is wrong in showing that the verdict was returned on the 3d of October, for in that case all the acts complained of were done either before the jury was impaneled, or after their verdict was returned; and it must be assumed that the verdict was returned at some time during the session of the court, on the 4th of October, as is indicated by the affidavits. In regard to these last affidavits, in reference to Jurors Griffin and Neider, it is perhaps only necessary to say that Juror Griffin in his affidavit flatly denies the allegation that he and Neider put their heads close together or conversed together in a low tone of voice, as alleged in the affidavits of Law and Sandman; avers...