Ryan v. Riverside & Oswego Mills
| Decision Date | 22 January 1887 |
| Citation | 15 R.I. 436,8 A. 246 |
| Parties | RYAN v. RIVERSIDE & OSWEGO MILLS. |
| Court | Rhode Island Supreme Court |
On petition by defendant for a new trial.
George J. West, for plaintiff.
Robert W. Burbank, for defendant.
This is a petition for the new trial of an action tried to a jury in the court of common pleas. The only ground for new trial assigned is that one of the jurors was not qualified, and that the want of qualification was not known to the petitioner or its counsel until after verdict. The petition does not allege that the petitioner inquired as to the matter before trial, and was misinformed, and we may therefore presume that he went to trial without such inquiry. The question presented is not a new one. It was substantially raised in this court 20 years ago in a case not reported, and the court then decided, after careful consideration, that the petitioner was not entitled to a new trial. The reason is, a party who goes to trial without such inquiry thereby waives the objection. Hence he cannot be permitted first to run his chances with the jury, and then, if he loses his case, to take advantage of the objection. The fact that the right of jury trial is constitutional does not preclude the waiver. The following cases cited for the respondent illustrate the rule: Wassum v. Feeney, 121 Mass. 93: State v. Jackson, 27 Kan. 581, 41 Amer. Rep. 424; Daniel v. Guy, 23 Ark. 50; V. S. v. Baker, 3 Ben. 68; H oiling sworth v. Duane, 4 Dall. 353; State v. Quarrel, 2 Bay, 150, 1 Amer. Dec. 637; Orcutt v. Carpenter, 1 Tyler, 250, 4 Amer. Dec. 722. Some of these cases are very strong. The juror in Wassum v. Feeney was a minor, in Hollingsworth v. Duane an alien, and in State v. Jackson the juror was under disability for having borne arms against the government during the rebellion, and the petitioner was convicted of murder. And see Amherst v. Hadley, 1 Pick. 38, 41, 42. The case of Wassum v. Feeney is a very full examination of the subject on authority.
The petitioner cites cases which show that some courts have decided differently, but we think the weight of authority is with the former decision of this court, which we adhere to. Petition dismissed.
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Powell v. State
... ... Jones, 89 S.C. 41, 71 S.E. 291, ... Ann. Cas. 1912 D, 1298; Ryan v. Riverside, 15 R.I ... 436; 8 A. 246; Stewart v. Ewbank, 3 Iowa, ... ...
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Batson v. State
...on motion for a new trial. Eastman v. Wight, 4 Ohio St. 156; State v. Jones, 89 S.C. 41, 71 S.E. 291, Ann.Cas.1912D, 1298; Ryan v. Riverside, 15 R.I. 436, 8 A. 246; Stewart v. Ewbank, 3 Iowa, 191; State Whitesides, 49 La.Ann. 352, 21 So. 540; Arkansas Southern Railway Co. v. Loughridge, 65 ......
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Rose v. Magro
... ... Jones, 89 S.C. 41, 71 S.E. 291, Ann. Cas ... 1912D, 1298; Ryan v. Riverside [River Side & Oswego ... Mills] 15 R.I. 436, 8 A. 246; ... ...
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Commonwealth v. Wong Chung
...L.Ed. 432, who states the rule in a similar way; the juror in that case being an alien. Other cases of similar import are Ryan v. Riverside Mills, 15 R.I. 436, 8 A. 246; State v. Cosgrove, 16 R.I. 411, 16 A. 900; v. Jackson, 27 Kan. 581, 41 Am. Rep. 424; Presbury v. Com., 9 Dana, 203; Busey......