Tiernan v. Trewick

EmeRSON, J., delivered the opinion of the court: This appeal is from the judgment and order of the court overruling the appellants’ motion for a new trial. The first ground for the motion is “ misconduct on the part of the jury in the former trial.” The alleged irregularity is on the part of one of the jurors, and, as stated in the affidavit accompanying the motion, consists in this: “That during the trial of said cause by jury, and during a recess of the court, that he observed Silas Beebe, one of the witnesses for the plaintiff, talking about said case and explaining the map exhibited by tire plaintiff, to one Brower, a juryman, sitting at that time on said case; and that Marshall, one of the attorneys for the plaintiff, coming in about that time, said to him, ‘ Here, Beebe, none of that.’ ” In a counter affidavit, filed by the respondent, what purports to be the whole of the conversation is given,, and is as follows: “ Silas R. Beebe, first being duly sworn, on his oath states, that he is over twenty-one years of age; that he was examined as a witness in the above entitled action; that he has read the affidavit of W. G. Galligher, on file in said action on motion of said defendants for a new trial therein; that the only explanation or conversation he, affiant, ever had with any juryman during said trial, was in reference to the map used by the plaintiff on the trial, and consisted of the following, viz.: One of the jurymen, Brower, remarked to affiant, pointing to plaintiff’s map, that it was well gotten up; said how well the star was made, and asked him, affiant, who made it; affiant responded by saying he thought Eastman had made it for Mr. Tiernan. The juryman then said, ‘It is well gotten up; I know something about that kind of work myself; ’ and the [397] conversation or explanation here ended. This was during recess of the court, when quite a number of persons were present; that affiant said nothing to any juror on the trial of said action pf or concerning any of the facts to be or given in evidence of said action, or anything concerning the merits of ■ same; that he has no interest in the result of said action; and further this deponent saith not.” This is all the record contains in relation to the subject. The conversation related solely to the mechanical execution and appearance of the map. Not a word is said or suggestion made about its correctness on the subject matter of the controversy. There is nothing detailed in the conversation which can in any possible manner be tortured into an undue, or even any, influence upon the mind of the jurors. It would be an extremely dangerous precedent to establish, to set aside this verdict upon the showing of the appellant. It was a mere casual conversation, such as is liable to occur in almost every trial, and especially in the trial of a mining case, and was, moreover, wholly immaterial and unprejudicial. The fact of the conversation, such as it was, was wholly unknown to the respondent, and therefore was not promoted by him. “ "When the interference of strangers with the jury is unattended with corruption in the latter, and has not been promoted by a party, and it does not appear that any injustice has thereby been done, the verdict will not be disturbed, whether the cause be civil or criminal, a capital trial or otherwise.” 2 Graham & Waterman on New Trials, 317; People v. Boggs, 20 Cal. 432. The second ground of the motion is: “Newly discovered evidence, material for the defendants, which they could not with reasonable diligence have discovered and produced at the trial.” It is conceded by the appellants, that the great point of controversy on the trial was as to the continuity of the Live Pine vein or lode through the tunnel claimed to have been run on [398] that lode or vein, and particularly from a point marked “ A.” to the working of the St. John lode. The theory on the part of the appellants, upon which the case was tried, seems to have been that the Live Pine vein was abandoned at the above named point; and from there the tunnel run through country rock until it reached a point where it struck the St. John’s lode, which latter the appellants claim is a separate and distinct vein or lode from the Live Pine. It is conceded that the testimony upon this point was very conflicting. After the trial, the appellant ran a small drift, starting at the point “ A.” above referred to, to demonstrate their theory of the case. It is this drift, and the evidence claimed to be afforded by it, which constitutes the newly discovered evidence, upon which the motion for a new trial was made. The counter affidavits filed in opposition to the motion, show that the same conflict of testimony exists as to the character of the evidence disclosed by this drift, as existed at the trial. In the language of the court below, in deciding the motion, “ The affidavits presented by the respective parties on this motion, present the point of controversy in, as nearly as may be, the same light in which it was presented by the evidence on the trial, and would not change the verdict if a new trial was granted. Even if this testimony was conclusive, we are satisfied that the appellants were guilty of negligence in failing to produce it at the trial. The appellants’ theory of the case, the theory upon which it was tried, would suggest that he should have done before the trial, and as a necessary preparation for it, what was neglected until he had taken the chances of a verdict without it. No effort whatever was made to procure this evidence, and no reason given for the neglect. If there had not been sufficient time after the issue was joined, and before the trial, to have made this development, [399] under the provisions of the 159th section of the Practice Act, he could have obtained a continuance for this purpose. If the respondent would not have allowed it, while the temporary injunction was pending, an order of the court could have been obtained, or at least some effort made to obtain it, modifying the injunction to that extent. At any rute, it does not appear that there was any difficulty in making the explanation until after the trial, and when injunction had been made perpetual. It is clear that the issue to which this new testimony is directed was the main and essential issue involved in the case, and a party is supposed to know when he is ready for trial upon these, “ and he cannot be allowed a new trial after having submitted his case upon such testimony as he thought proper to introduce in support of those issues of fact, by a showing that he had subsequently discovered additional pertinent evidence upon the same issue, unless it is clear that such evidence would change the result, and that the strictest diligence would not have enabled him to produce the same on the trial. Judgment affirmed, with costs. PoREMAN,.J., and Sohaefiee, C. J., concur.