Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-03-12
THE TAYLOR 8 CASE.

IhE tAIlVk LIBEL CASE.
Opinion OF Judge shannon On the Mo.
ton for a New Trial-The Motion De.
MED.
The Territory of Dakota
Maris Taylor and. for Libel.
james Taylor.
Notion for a ne,o trial
Messrs. Sphinx and Wheeler, attorneys for
the motion.
Measrs. Faux, Gamble, and West, contra.
OPINION BY SHANNON, j.
The jury rendered a verdict of guilty on
the Oath Of December last and on the same
day the defendants counsel gave oral notice
of a motion for a new trial specifying the
alleged error in the charge afterwards en-
bodied in the written motion, which was
filed January the 18th, 1877. Besides this
alleged error in law the written motion
contains two other reasons, FIRST, that "after
the jury had retired to deliberate upon their
verdict, and while they were so deliberating,
they read and examined the Statutes of Da-
kota, and other works Of Law, on the sub
ject of libel;" and, secondly, that latter
the jury had retired to deliberate upon their
verdict, and were SO celebrating, one Of the
bailiAs, to-wit-Warren Osborne, was pres
ent in the room with said jury, and talked
with them"
This last point was, however, formally
withdrawn by defendants counsel, as per
writing on file, leaving only the two other
specifications as the grounds. When the
motion came on for hearing, counsel for de.
PENDANTS to support the allegation of irregu,
larity, or misconduct, of the jury in exam
lining the statutes and other works of law,
offered in evidence the aHiidavits of j. C.
English and VIM. II. Dale, two of the iu-
rors, sworn to on the 9th and 10th of Jan
uary, and fled on the 18th.
Counsel on the other side objected to the
reception of such evidence, on the ground
that the affidavits of jurors cannot legally
be introduced to impeach, or set aside,
their verdict.
The main stress of the very able argu-
ments on both sides, was applied to this
point; and as no precedent has as yet been
established in this territory, the grave i'm
portance of the question must be my excuse
for the time and labor bestowed upon its
consideration.
Under this head the first inquiry is, al. to
the competency of a Juror to testify to the
misconduct of himself or of his fellows.
On this subject Wharton on CT. Law, seventh
edition, 1898, states that though the
former practice was different, it is now set
tied, in England. that a juror is inadmissi-
bic to impeach the verdict of his fellows.
Tt would open each juror declared Mans
field, c. J, to great temptation,l and would
unsettle every verdict in which there could
be found upon the jury a man who could be
induced to throw discredit on their common
deliberations" And further says Mr..
Wharton-"In this country the English
has generally been adopted, though the
af6davits Of jurors will be entertained for
purpose of explaining, correcting, or
enforcing their verdict"
In l Greenleaf on Evidence 18th edition)
252 a, it is said that "on similar grounds
Of public policy, and for the protection
parties against fraud, the law ex
the testimony of traverse jurors, when
regard to the. verdict. Formerly, indeed,
the afidavits of jurors have been admitted
in support of motions to set aside verdicts
by reason of misconduct but that practice
broken in upon by Lord Mansfield, and
the settled course now is to reject them, be-
cause Of the mischiets which may result if
he verdict is thus placed in the power of a
single juryman."
In 3rd Waits New York Practice,
page 1878, it is also stated that
on motion to set aside the verdict Of a jury
or misconduct, the evidence must be de-
lived from the afidavits Of persons other
han the jurors ; for while the affidavit of .
uror may be received in support Of his YER
lict, it will not be received to impeach it."
Green Y. Bliss, IL How, 42S
linn w.. Smith, 5 Hill, $50; Dana '.
A Johns. 4S9.
In 3rd Estee's Pieadings, page 5S7, under
he head of Tmpeaching Verdict" on
round Of misconduct, it is asserted that the
fiidayits of jurors are not admissible to i'm
each their verdict for irreguiarity or mis-
Of thSmselyo or iheir fellows.
apart from California cases. the
SLOWING: Reins v. People, 80 Ills, 256
Iuehes =. Lister. % Ind, 1856. Il
In Tiilinghast Il Sheasman's practice, 2
D. 563. il Is said that "the af6davits Of
,rors are moi admissible evidence 70 show