Opinion
Decided June 24, 1937.
It is an issue of fact whether the impropriety of permitting a court officer, who has testified in a case, to be in charge of the jury after the case is submitted to them renders the trial unfair.
CROSS ACTIONS OF CASE, for negligence growing out of an automobile collision. Trial by jury, with verdicts in favor of Brown.
During the course of the trial, Lester E. Moses, a deputy sheriff, was called as a witness by Brown, and testified to certain measurements made by him at the scene of the accident. He was not a witness to the collision. At the close of the trial the jury was placed in charge of two deputy sheriffs, one of whom was the said Lester E. Moses, and the other deputy sheriff Jordan. After the verdicts had been returned, Smith moved that they be set aside "for the reason that Deputy Sheriff Moses, having been called as a witness for Brown the trial had, with Deputy Sheriff Jordan, joint charge of the jury during its deliberations, thereby prejudicing his rights, and rendering the trial unfair." After a hearing upon this motion, the court (James, J.), made the following findings: "I find Mr. Moses had no interest in the cases and that while in charge of the jury he exerted no influence upon it. I further find that the fairness of the trial was in no way affected by his connection therewith." The motion was, accordingly, denied and Smith excepted. Exceptions were also taken to the denial of certain requests for findings of fact. Transferred by James, J.
John J. Moke and George W. Pike (Mr. Pike orally), for Smith.
Irving A. Hinkley and John E. Gormley (Mr. Hinkley orally), for Brown.
Although the impropriety of permitting a deputy sheriff who has been a witness in a cause to have charge of the jury after it has been submitted to them, is not doubtful, it cannot be said, as a matter of law, that this procedure was inconsistent with a fair trial. The motion to set aside the verdict presented typical questions of fact for the Presiding Justice to pass upon such as the trial court is constantly called upon to decide. Wisutskie v. Malouin, 88 N.H. 242; Bennett v. Larose, 82 N.H. 443; Marshall v. Morin, 79 N.H. 351; Moran v. Fox, 79 N.H. 523; Bachman v. Insurance Co., 78 N.H. 100; Beckley v. Alexander, 77 N.H. 255; Burnham v. Stillings, 76 N.H. 122; Manchester v. Duggan, 75 N.H. 33; Lee v. Dow, 73 N.H. 101; Burnham v. Butler, 58 N.H. 568. The decision of the Presiding Justice upon such issues will not be reviewed here, and is final if there is evidence to sustain it. The findings of the court in the present instance are amply supported by the evidence that nothing was said to the jury during their deliberations other than a question by Moses as to whether they could agree before supper and by the action of Smith's counsel in disclaiming the charge that Moses used any influence on the jury.
It is unnecessary to consider the exceptions to the denial of the requested findings, since the alleged facts were wholly inconclusive and the findings, if made, could not have affected the result.
Judgments on the verdicts.