Turner v. Hahn

Hallett, 0. J. This was an action of trover and conversion, in which there was judgment in favor of the appellee in the court below for the sum of $60 and costs. We are asked to reverse this judgment for several causes, the first of which is that improper instructions were given to the jury upon the trial in the district court. The objection to these instructions appears to be that they are so framed that the jury were at liberty to find for the appellee, in the absence of testimony showing a demand by him for the property, the value of which he sought to recover, and a refusal by the appellant to deliver it. Upon this point it is only necessary to say that, in actions of this kind, proof of demand and refusal is made for the purpose of showing a conversion of the property by the defendant, and, when the plaintiff is able to show such fact by other evidence, he need not resort to proof of demand and refusal. 1 Chitty’s Plead. 157; Tompkins v. Hale, 3 Wend. 406. ' In this case there was evidence tending to show that the appellant had killed the steer, the value of which the appellee was seeking to recover, and, if the jury believed this evidence, proof of demand and refusal was not at all necessary. It is also urged that the evidence is not sufficient to sustain the verdict; but we are unable to adopt the views of the appellant. We are entirely satisfied that the jury decided the case correctly. After the trial in the district court the appellant filed several affidavits showing that one Harpin, a juror who sat upon the trial, was an alien, and that he understood the English language but imperfectly ; that the appellant and his counsel had no knowledge of these facts until after the trial. For this and other reasons, the appellant moved the district court to set aside the verdict and grant a new trial, which motion was denied. Upon the hearing of this motion the appellee produced the affidavit of one Greriaux, in which the deponent stated that during the trial of the cause he informed the counsel for [28] appellant of the facts before mentioned, touching the alienage and ignorance of Harpin, and also the affidavits of six of the jurors who sat upon the trial, in which they deposed that Harpin, while in the jury room, conversed freely about the evidence, and appeared to understand it perfectly, and they discovered no incapacity in him. To the reading of these affidavits, presented by the appellee, the appellant objected, alleging that, under a rule of the court which is set out in the bill of exceptions, he should have been served with copies of the affidavits twenty-four hours before the hearing, but the court permitted them to be read. Obviously the rule applies only to affidavits designed to be read in support of a motion, and, as these affidavits were offered for the purpose of resisting a motion, the case is not within the terms of the rule. It is clear that Harpin was sufficiently acquainted with the English language to enable him to comprehend the evidence and act intelligently upon it, and it is equally clear that he was an alien.' We are then to consider whether the fact that Harpin was an alien is sufficient to avoid the verdict, and we think that it is not. In the case of Queen v. Hepburn, 7 Cranch, 297, it was objected that one of the jurors was not a resident of the county in which the cause was tried, and Chief Justice Marshall, speaking for the court, said “Whatever might have been the weight of this exception, if taken in time, the court cannot sustain it now, the exception ought to have been made before the juror was sworn.” This language is fully applicable to the case under consideration. Parties have the right to interrogate persons who are called to sit as jurors, for the purpose of ascertaining their qualifications before they are sworn, and if this is not done the right to challenge is waived. Hollingsworth v. Duane, 4 Dall. 353 ; Greenup v. Stoker, 3 Gilm. 219. We find no error in this record, and therefore the judgment of the district court is affirmed, with costs. Affirmed.