The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1894-06-21
J. We find no error in the charge of the

court.
7. On the motion for new trial affidavits
were read stating that after the jury was
charged recess was taken by the court for
about ten minutes and the jury were allowed
to and did separate This is all denied by
counter afidavits and stated by the court
below to be untrue both on the affidavits and
of his own knowledge. This finding is con-
elusive that no such recess was taken and
that the jury did not separate.
8. Misconduct of the jury was one of the
grounds of the motion for a new trial and
afddavits were read in support of the motion
stating that two or three of the jurors were
intoxicated, some of them every night dur
ing the trial This is all denied by num-
Der of counter afidavits and the court finds
it is untrue and that finding is conclusive
But one of the jurors in his counter af1dav-
it admits that he drank Intoxicating liquor
during the trial. 'Affiant is in the habit of
taking drink of beer or wine when he feels
like it but never drinks spirituous liquors
for other than medicinal purposes; that af-
fiant never mixes his drinks that during the
trial afhant did not take more than five drinks
in any one day and when he did drink there
was long time between drinks, that afiant
has never been intoxicated or under influence
of intoxicated liquors with the exception of
one occasion when affiant was in the army
The question now arises: Is the drinking
of intoxicating liquors by juror during the
trial ground per Sc for a new trial? There
are few cases which SO hold, but they are
contrary to the great weight of authority
which is that such drinking raises more or
less of a presumption against the verdict
which may be rebutted by showing that the
juror was not, in fact. intoxicated. The cases
cited by appellant were cases where the jur-
ors procured the liquor after they had retired
to consider their verdict. 1t seems to us that
where the intoxicating liquor is procured
and drank after the jury have retired to
consider their verdict it is very different
question. It then involves the misconduct of
both the jurors and the officer having them
in custody and will easily raise presump-
ton of positive bad faith. But if the juror
is intoxicated while performing his duties
in open court the parties have an opportun-
ity to observe it and bring it to the attention
of the Judge It is also different question
if the juror drank at the expense of the pre-
vailing party, or those working in his inter-
est which was also claimed by the afidavits
in this case and denied by counter afidavits,
and found against appellant by the court be-
low. If, as in this case, the court below finds
that the juror was not intoxicated and the
moving party is not, in fact, prejudiced. the
verdict should be allowed to stand.
9. That one of the jurors did not under
stand the English language is also made a
ground for new trial. The af1davits on
this question were also conflicting and for
this reason, and also for the reason that it
was ground for challenge and by the exer-
else of reasonable care the defendant might
have discovered the fact and availed himself
of his right 70 reject the juror when the jury
was being empaneled The point is not well
taken.
This disposes of all the questions raised on
the appeal. and the order appealed from
should be affirmed So ordered CAVITY, J.