Leach v. Ackerman
| Decision Date | 23 June 1891 |
| Docket Number | 138 |
| Parties | LEACH v. ACKERMAN |
| Court | Indiana Appellate Court |
From the Knox Circuit Court.
Judgment affirmed.
J. T Beasley, A. B. Williams, G. G. Reily and C. E. Barrett, for appellant.
W. A Cullop, C. B. Kessinger, W. S. Maple, G. W. Buff and J. S Bays, for appellee.
In an action for damages for assault and battery, a jury returned a verdict against the defendant, the appellant.
In his motion for a new trial he assigned, as an irregularity in the proceedings of the court, in the trial of the cause, and again as misconduct of the plaintiff in said cause, that a certain witness produced by the plaintiff testified to matters material to the issue in favor of the plaintiff, without having been sworn as such witness, and without the defendant knowing that he had not been sworn as such witness.
Following the motion for a new trial, in the transcript, are a number of affidavits, but they are not made part of the record by bill of exceptions, or order of court. There is a bill of exceptions, but it does not contain any affidavits. It is stated in the bill that at the time said witness testified as such no inquiry was made as to whether he had been sworn as a witness, and that he was examined without being sworn, "as shown by his affidavit herein, but without the court being apprised of the fact."
In Slauter v. Whitelock, 12 Ind. 338, a bill of exceptions stated that a certain witness (who had testified upon a material matter) "by mistake, was not sworn, but stated and gave in his evidence without being sworn." The record did not show when the mistake was discovered.
The court said that if the mistake was known before the jury retired it could have been corrected by swearing the witness and rehearing the evidence, or, if that course were not taken, by an instruction to the jury to disregard the statements of the witness; that if no motion was made upon the discovery by either party, it would amount to an acquiescence in the reception of the statements of the witness as evidence. And, under the condition of the record, the court presumed, in favor of the action on the motion for a new trial, that such a state of facts existed as authorized that action.
In Sheeks v. Sheeks, 98 Ind. 288, it was held that where it is discovered after trial that a witness who testified on the trial was not sworn, a new trial should not be granted upon that account without a showing that his evidence was material and not true, and that the party against whom he testified was not guilty of laches in permitting the witness to testify without being sworn. See, also, Stroup v. State, ex rel., 70 Ind. 495.
In the case before us the record does not show when the fact that the witness was not sworn was discovered by any of the parties or attorneys, or by the court. It does not appear that the appellant or his attorneys had not information on the subject in time to have called the attention of the court to the matter upon the trial. The record does not show that any one connected with the trial, except the court, did not know at the time the witness was giving testimony that he was not sworn. The appellant can not be permitted to avail himself of such an omission without showing that he and his attorneys did not know of it on the trial. If he had shown in the record that information concerning the omission was first obtained after the trial, it would have been necessary also to show such circumstances as to indicate that by proper attention the discovery could not have been made on the trial, and, further, that the granting of a new trial would probably result in a material change in the evidence. We can not look into the affidavit of the witness to which reference is made in the bill of exceptions, to see whether he denied therein the truth of his testimony, or stated that he would testify differently upon another trial.
The only other grounds stated in the motion for a new trial to which counsel direct their argument, relate to certain remarks of one of the attorneys for the appellee.
It is shown by the bill of exceptions that on the trial, after the evidence had been heard, and while one of the attorneys for the appellant was arguing the cause before the jury, one of the attorneys for the appellee interrupted the speaker and made certain remarks in which reference was made to the fact that the appellant had taken the cause by change of venue from the county where both the parties lived. Thereupon the appellant's attorneys objected, upon the ground that the statement was improper, and ought not to be made; and the court remarked that the statement was improper, and the jury had nothing to do with the change of venue, and that the jury should not take into consideration anything that may have been said on that subject.
Afterward said attorney for the appellee, in the course of his closing argument before the jury, made reference again to the change of venue. Thereupon appellant's attorneys objected, and the court remarked that said statement ought not to be made that it was out of order, and that the jury had nothing to do with that matter; that there was no issue of that kind to be...
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