Peterson v. Siglinger

• Decision Date: 17 August 1892
• Citation: 3 S.D. 255,52 N.W. 1060
• Parties: Peterson v. Siglinger.
• Court: South Dakota Supreme Court

3 S.D. 255

52 N.W. 1060

Peterson

v.Siglinger.¹

Supreme Court of South Dakota.

Aug. 17, 1892.

Syllabus by the Court.

1. When the defendant, who was sheriff of the county, mingled with and conversed with jurors while they were deliberating upon their verdict and in the charge of a sworn bailiff, no reasonable excuse appearing therefor, such defendant is guilty of such irregularity as to justify the court in granting a new trial. Affidavits not denying the acts charged, but explaining them, held not to cure the irregularity in this case.

2. A failure of the party moving for a new trial to bring such irregularity to the attention of the trial court before the verdict is rendered, although the irregularity was known to his counsel before the verdict, will not be a waiver of the irregularity, as the trial court could not have corrected the same. It is only such irregularities as may be corrected before verdict that are waived unless brought to the attention of the court as soon as discovered.

3. When a party assigns errors in the charge of the court, the abstract must show that exceptions were taken at the proper time to the portions of the charge alleged to be erroneous, or to the instructions given or refused at the request of the parties. Exceptions, to be available to the appellant, must affirmatively appear in the abstract.

Appeal from circuit court, Day county; J. O. Andrews, Judge.

Action by Sibeon Peterson against Charles Siglinger for the conversion of certain merchandise. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.Glass & Van Buskirk, for appellant. John H. Perry and Phil Skillman, for respondent.

CORSON, J.

This was an action to recover the value of a stock of merchandise levied upon by writs of attachment issued in suits against one Sibb Peterson, a son of the plaintiff, and subsequently sold by the defendant, as sheriff, under executions issued on judgments obtained in the said attachment suits. The jury found a verdict in favor of the defendant, upon which judgment was rendered, and plaintiff appeals. A motion for a new trial was made in the court below, one of the grounds of which was as follows: “Irregularity and misconduct of the defendant, in that he was by the deputy in charge of the jury allowed to mingle with them in the jury room during their deliberations, and then and there holding conversations with members of the said jury.” The motion was supported by two affidavits, one, made by Mr. Glass, one of the attorneys for the plaintiff, being as follows: “W. S. Glass, being duly sworn, deposes that he is one of the attorneys for the plaintiff in the above-entitled action, and was present and assisted on the trial of this action at the last. May term of court in and for said Day county aforesaid; that the jury in this action retired during the afternoon of the 24th day of May, A. D. 1890, and, after the said jury had been deliberating upon the testimony in this action for several hours, and about ten o'clock in the evening of said day, this deponent, with one Sibb Peterson, went to the courthouse in said county where the jury were deliberating; that said jury were then in charge of a deputy sworn to attend them during their deliberations; that said jury, after the adjournment of the court the evening of the 24th of May, aforesaid, had taken possession of the court room of said county as the place for continuing their deliberations; that upon this deponent going to said courthouse at ten o'clock in the evening aforesaid with one Sibb Peterson, a witness in said cause on the part of the plaintiff, they found the door opening into the stairs leading to said court room open, a part of said jury outside of said court room, and a part therein; that the said defendant was outside of the door leading to said court room where the said jury were deliberating, and about three or four steps up said flight of stairs; that several of the jurors composing said panel were then deliberating upon the testimony in this action, and he was within speaking distance of several of said jurors, and not more than about one step from one of said jurors, and conversing with one or more of said jurors; that thereafter, and within a short time, the said jury agreed upon and returned a verdict in this cause adverse to the plaintiff in this action.” The affidavit of Mr. Sibb Peterson was substantially the same. The facts stated in these affidavits were not denied by the defendant, but affidavits were read on his part purporting to explain what occurred between the defendant and the jurors while he was with them. Defendant states in his affidavit that at about 10 o'clock in the evening the circuit judge, who was then at the hotel, requested him to go to the courthouse and ascertain whether or not the jury would probably agree before midnight; that in pursuance of said request he went to the courthouse, and “that said jury were occupying the court room, and that the bailiff in charge of said jury had the door of said court room locked, (which door is situated at the foot of the stairs leading to said court room,) and found the bailiff in charge of said jury there guarding the door;” that he informed the bailiff of his errand, and he unlocked the door, and the defendant called the foreman and informed him of the judge's request; that, while the foreman was considering what answer to return to the judge, two or three other jurors spoke to him, and passed out by him to the front of the building.

The question presented is, did the acts of the defendant constitute such an irregularity as to entitle the plaintiff to a new trial? While it may be that the defendant intended no wrong, and neither did nor said anything to the jurors to influence them in arriving at their verdict, the acts of the defendant were grossly improper. It appears the jury were in charge of a sworn officer, as bailiff, yet the defendant makes no explanation why he did not communicate the request of the judge to the jury through him, instead of going himself to the jury and mingling with the jurors. While the explanation of the defendant of his acts tends to present them in a more favorable light, still the fact remains that the proceedings of the defendant were so irregular as to subject them to a just criticism; and the fact that the jury returned a verdict soon after in his favor was calculated to arouse in the minds of the opposite party a grave suspicion that an improper influence had been exerted upon the jury. To avoid these suspicions, and give...