Omaha daily bee., 1906-03-07
DOYLE GIVEN A NEW TRIAL
Judge Admits Material Error in One of His
Instructions in the Case,
FINDS NO MISCONDUCT ON PART OF JURY
sole Ground for New TRIAL the Error
Of the Court. All the Other
Claim. of Doyle BEING
Brushed Aside.

Judge Thornell in district court yestet-
day afternoon handed down his decision
granting the plaintiff a new trial in the
famous Colorado mining suit Of James
Doyle against James +. Burns. former
president of the Portland Gold Mining
company.
Doyle In his application FOR a new trial
charged Burns with attempting to tamper
with the jury and to bringing outside in
fiuence to bear on them. Judge Thorncll
in his decision wholly exoncrated the jury
and granted the new trial on the grounds
alone Of his having erred in one of his
instructions to the jury.
The instruction in which the court ad-
mitted having erred in giving it to the
jury was No. H. which was follows;
II is claimed by the defendant that the
January p. 1892. in the name Of James
Doyle & Co, and that the defendant had
that about about March ?. 1872, the defendant
located claim called the Professor
Grubhs and that about March y 1872 he
in the Professor Grubbs claim to the
plaintiff for a one-half interest in the
Portland claim, and that in pursuance of
said agreement. the names of both the
plaintin and the defendant were inserted
In the location certificates OF both OF said
exchange o. one-half OF the Professor
GrUbhs claim for one-half of the Portland
claim he Uhe DEFENDANT had no interest
in the Portland. and the plaintiff had no
interest IN the Professor Grubbs.
Now. if the evidence shows that the De,
PENDANT had no interest in the Portland
prior to March, 1892. and that tho plaintiff
then agreed to. or did: trade or exchange
with the defendant. giving 4 one-halt in
terest in the Portland for one-half in
terest in tho Professor Grubbs claim. this
would be so inconsistent with the plain
Of be defendant
tered into the contract in question on + eb-
ruary 2 1892. that YOU would not be Jusu-
fed in finding that said February con-
tract was made between the parties. and
i'm that event your verdict should he Tor
the defendant: But whether such an , eK5
ma rites in March. 1892, is question of
fact to he decided nv YOU from all OF the
evidence bearing thereon.
where Error Arises.
Regarding his admitted error I'm giving
the Jury this instruction Judge Thornell
said as follows:
instruction No. Il is objected to on the
ground that il invades the province OF the
Jury BY instructng them that they must
draw certain inference of fact from other
facts, If such other facts are shown. The
pla intiff brings suit on contract thAt ne
| claims was made about February lSy@
under which he claims II was agreed be
| tween him and Burns that each should own
one-half. share and share alike, IN all MN
| ing claims then owned by them OF tna'
| should be acquired by them in the future
| Both parties had an interest IN the FORT
| land claim and the question how tnat IN,
terest was acquired Is only an eT,d baisr
! The contract of February >, 1892, claimed
| by the plaintiff was made 80
The February contract ana that OF
| March L. by which the defendant claims
/ half interests in the Portland and PROFESSOR
| Grubbs claims were traded; W VINE ,,e EEK,
| made il the parties did not understand inc
scope and meaning OF the hrst conway ,i
The making Of the second epntrSf tba So tho
| first was not made. The existence OF the
| second contract would he strong evidence
| that the FIRST was not MAZE, hut the ioi ~
| Of the Inference would be for the jury ano
! not the court To determine. -,
| This Inconsistency If shown, was a, mere =, 7,
| e,-idcntal fact and not conclusion OF law
and I'm saying what force and effect should
be given it the court invaded the province
, OF the jury. The submission to the jury oil
| the second special finding again called az.
tention TO the matter contained IN tht
| fourteenth instruction and emphasized
| mere matter OF evidence as an ultimate ano
controlling fact in the case,
| Jury IL Commended.
! Referring to the charges OF alleged mis-
conduct Oh the part of the jury and the al
legged attempts made to influence the mem
bers Of it, Judge Thoneu bad this to say:
II is asserted that some Of the .uror'
| were intoNca ted OF under the lnnuenCe o.
intoxicants while in the jury box OBJ
Il
at every recess and morning, noon ant
night. | am not without experience IN sucl
| matters. And | do not believe that any %
| the Jury could have been under the In
fluence of intoxicating liquors while in IN
jury box without my showing II -,
l regret very much that the jurors haN'
been subjected 10 such severe criticism a
has been made in this case, as ! believ
that all of these criticisms as 20 thei
moral conduct are without merit. be
lieVe on the whole, the jury were aboE'
the average in character and ability.
do not say that things were not said am
done in The presence of the jury by IN
| agents OF the parties that ought not q
have been said and done. do not say ina
| some Jurot did not make statements n
ought not 10 have made. trom the eli
| cumstances disclosed by the evidence
1 think sonTe' such statements weTt made
! and statements that might. and would, 4
my judgment, affect the validity Of IN
| verdict.
The whole recoId In this respect show
| that the court made a mistake al the yer
, 4 outset OF this Gaze in not ordering that IN
| jury be kept together under the charge q
| Il sworn officer. not merely to guard agains
r ! misconduct Of the jury, but To proven
. I other persons from doing things ON whic
! charges of misconduct might be based.
George 5. Wright. one OF the local at
torneys Tor Doyle, stated he could not sa
| when the case would be retired, bu
doubted If il would be reached before ~
October term, il then. There has been NOR
or less talk TO the effect thaI II DOYLE Wa
granted a new trial Burns would try 30 ei
feet a settlement rather than face re
trial. but this report canuot be vourhe
for The sui. has now been pending eigl
years and has cost both sides enormou
sums Of money.