Manning v. Boston Elevated Ry. Co.
| Decision Date | 03 March 1905 |
| Citation | 73 N.E. 645,187 Mass. 496 |
| Parties | MANNING v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas J. McCarthy and Thos. F. Waldron, for plaintiff.
Jas H. Baldwin, for defendant.
The questions in this bill of exceptions arose upon a motion for a new trial, the important grounds of which were that a juror sitting in the case had been convicted of a scandalous crime and was not of good moral character. On these grounds the verdict was set aside. The plaintiff excepted to the refusal of the presiding justice to make four rulings requested, of which the first two were, in substance, that upon the motions filed, and the affidavits in support thereof, and the evidence, the defendant was not entitled to a new trial. The third became immaterial, because the judge found in favor of the plaintiff upon the part of the motion to which it relates. The fourth was that the defendant was not entitled to a new trial because the affidavits were filed too late.
1. The affidavits sufficiently averred that the disqualification of the juror was 'unknown to the defendant or its attorneys before the juror was called, sworn, or served,' and they warranted a finding that neither the defendant nor its attorneys were in fault in not making an objection to him before the verdict. In appealing to the discretion of the court, it was not necessary to aver or prove that they made inquiry or investigation in regard to the juror before the trial. The facts that he had worked as a laborer upon the streets and in the yard for this defendant, who employs many hundreds of men, and that at one time a witness in the case was the foreman under whom he worked, do not show neglect on the part of the defendant or its attorneys in failing to know his character.
2. It was proper, under the thirty-first rule of the superior court, for the court to hear the motions on affidavits, with or without additional oral testimony. Borley v Allison, 181 Mass. 246-250, 63 N.E. 260; Spaulding v. Knight, 118 Mass. 528.
3. Convictions of crime could properly be shown by docket entries, if the records had not been extended. Com. v Meehan, 170 Mass. 363-364, 49 N.E. 648. Moreover, these docket entries were received without objection, and it is now too late to raise a question in regard to them.
4. The records showed 8 cases against the juror in the criminal sessions of the superior court for Suffolk county, covering several years, in most of which he had been convicted and sentenced to imprisonment. They also showed 28 criminal prosecutions against him in the municipal court for the city of Boston, covering altogether a period of more than 23 years, in all of which he had been convicted, and in many of which he had been sentenced to imprisonment....
To continue reading
Request your trial