The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1894-03-15
THURSDAY, MARCH Is, 1894.


the court in his charge as to what con-
stitutes the first and second material
allegations of the indictment, upon
the ground that they do not constitute
auy public offense in this indictment.
These could not possibly be misc IN
strued as calling the attention of the
court to any Instructions other than
the instruction that the allegations
that Madigan was the attorney of the
plaintiffs, and that cause of action ex-
listed, were material; and these are not
claimed to have been misleading.
The defendants counsel is in error
in claiming that the attachment bond
was received in evidence. When the
bond was offered and objection was
interposed, it was taken under advise
ment till the next morning, and i'm
mediately before the defendant COM
menced the introduction of his evil
dence, the defendants objection was
sustained, as appears from the record.
Whatever may have been the rule
in other States, no proposition of law
is better settled in this State than the
proposition that the affidayits of jur-
ors cannot be received to prove their
misconduct or the misconduct of bail
ifs during their deliberations, and
such affidavits must be excluded. In
my opinion the great weight of au-
thority sustains the proposition that a
party valves any objection to juror,
constituting ground of challenge,
when he neglects to interpose such
challenge. An apparent exception is
made to this rule on the ground of
partially of juror in Williams VS..
McGrade Is Mimi, 81 (Gil. 65.) This
is based upon the case of Rollins VS..
Ames, 2 N. H. $40; 8. 9, Am. Dec.
70. The defendant did not bring
himself within the rule announced in
the latter case for the reason that the
defendants counsel did not make af
fidavit that he did not know of the
ground of challenge at the trial. Want
Of knowledge of English is ground of
challenge for general disqualification.
In many counties of this State, the
population is largely composed of
persons of foreign birth, and large
proportion of them have an imperfect
knowledge of the English language,
and, if party is not required to in
terpose any challenge, or in any man
ner call the attention of the court to
disqualification of juror, there would
be little hope of obtaining verdict
that could be sustained, if such dis
qualification is ground for new trial
as contended by the defendant.
Aside from my own knowledge that
no recess was taken after the charge,
think the affdayits of persons in a
position to know, clearly shows that
such recess was not taken.
The remaining and, in my opinion.
the most serious charge of misconduct,
is as to the intoxication of jurors. The
jurors we're remarkably attentive dur
ing the trial while in the court room,
and l did not detect the slightest in
dication of intoxication.
There is no doubt that intoxication
of juror while in the performance of
his duty, is ground for new trial;
and it is sometimes held that the mere
drinking of intoxicating liquors after
the retirement of the jury for deliber-
alton is ground tor new trial, but the
great weight of authority holds that
the mere drinking of intoxicating Ii
quors during the progress of the trial
does not constitute such ground un-
less it is shown that the defendant
was thereby prejudiced. The evidence
in regard to intoxication is very con-
ficting as is generally the case; but
there is no evidence that any juror
was intoxicated while in the perform
ance of his duty. There are some
strong affdavits on the part of the de-
PENDANT that the juror, Pickle, was in
toxicated in the evening, and equally
strong affdavits on the part OF the
State denying this fact. The juror
swears that he did not, at any time
drink spirituous liquors, and this is
contradicted. I am of the opinion
that the defendant has failed to es-
tablish the fact that any juror was in
toxicated while in the performance Of
his duty as such juror.
Ordered that the motion Of the de-
PENDANT, that the verdict of the jury
herein be vacated and set aside and {
new trial granted, be and the same il
hereby denied. B. F. WEBER,
Judge of the District Court, Ninth
district.
County Attorney Pierce on las
Wednesday, before the decision, Sc
cured an order admitting the affidavit
of Joseph A. Beard, in effect that h
in no way attempted to influence an
of the jurors, and never saw any Q
them intoxicated during the trial, Q