Vanmeter v. Kitzmlller
Decision Date | 31 July 1872 |
Court | West Virginia Supreme Court |
Parties | William C. Vanmeter.. v. Ebenezer Kitzmlller. |
A case in which there was misconduct upon the part of a juror. The misconduct consisted in the juror asking, after the case had been submitted to them and they had retired to consult of their verdict, one of the witnesses whethar he had not made certain statements on the witness stand.
This was a trial of the right of property, under a suspending bond, between Ebenezer Kitzmiller and William C. Vanmeter, in the circuit court of Mineral county, in 1870.
A verdict was found on behalf of Kitzmilier, and a motion was made for a new trial by Vanmeter.
It appears that the jury disagreed among themselves as to a statement made by a witness, ten of them insisting on a certain statement and the other two on a different one. Vanmeter among others, filed the following affidavit of J. 0. Hull:
" That he was acting as deputy sheriff at the March term of the circuit court of Mineral county; that he had a conversation with Simon Umstot, one of the jurymen in the case of William C. Vanmeter vs. Ebenezer Kitzmilier, as follows: When court had adjourned for dinner, as I was going to the railroad, I met Simon Umstot between the court house and the railroad. He called me to one side, and said he wanted to ask me a question. I told him I would listen to him, and he said, ' Didn't you say, in giving in your evidence, that Peerce said that he could do as he pleased with his property on his own premises?' I refused to answer him. I told him,
The court refused the motion for a new trial, and Vanmeter appealed.
White & Boggess for plaintiff in error. Allison & Regnolds for defendant in error.
The case of Ball vs. The Commonwealth, 14 Gratt., 626, is conclusive of the impropriety of setting aside a verdict and granting a new trial upon the affidavits of jurors. But in this case the affi davit of Hull, who was not a juror, clearly shows misconduct on the part of one of the jurors in approaching said Hull and asking the question he did. The answer given to the repeated...
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...96 Va. 823, 32 S. E. 466—are some of the cases stating this rule. In West Virginia this rule has been often followed. Vanmeter v. Kitzmiller, 5 W. Va. 380; Reynolds v. Tompkins, 23 W. Va. 229; State v. Cobbs, 40 W. Va. 718, 22 S. E. 310; Chesapeake & O. R. Co. v. Pat-ton, 9 W. Va. 648; Bart......
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