Summary
In Boyce v. California Stage Co., 25 Cal. 468-470, there are some expressions (in the opinion of the court) which tend toward such an extreme doctrine; but they were not necessary to the decision of the case.
Summary of this case from Treadwell v. WhittierOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 25 Cal. 460 at 474.
Appeal from the District Court, Tenth Judicial District, Yuba County.
COUNSEL:
The Court erred in overruling the motion of defendant for a new trial on the ground of misconduct on the part of the jury, in deciding the case by a resort to gambling. (See Statutes of 1862, p. 38; Wilson et al. v. Berryman et al. , 5 Cal. 44; Harney v. Rickett, 15 Johnson, 87; Roberts et al. v. Fallis, 1 Cowen, 238; Donner v. Palmer et al. , 23 Cal.)
Appellant claims that the Court must give or refuse instructions as they are asked.
It is true that the late Supreme Court seem to have held in Conrad v. Lindley , 2 Cal. 173; Russell v. Amador , 3 Cal. 400; and Jamson v. Quivey , 5 Cal. 490, that instructions must be given substantially as asked for; that the Court might modify the phraseology so as to make it more intelligible to the jury, but could not alter the sense. It is noticeable, however, that there was nothing in either of those cases to call for any suchdecision or rule; that in each of those cases, the instructions, as asked, clearly and correctly expressed the law of the case, and as modified and given, did not.
Such a rule was at one time adopted in Alabama, but was discarded, after mature consideration, in Long v. Rogers , 19 Ala. 321, and if it can be said to exist here since the decision in Lawrence v. Fulton , 19 Cal. 690, California is the only State, so far as we have been able to discover from a pretty careful examination of the reports, in which such a rule obtains.
In Vaughan v. Porter , 16 Vt. 268, Mr. Justice Redfield says: " In regard to all written requests, the Court are never bound to regard them in their charge, unless they are couched in such terms as to be sound to the full extent. The fact that some sound law might be extracted from the requests, or that, in general terms, they may be sound law, with certain qualifications, is not enough. They must be wholly sound law, and without any necessary qualification, or it is not error for the Court to refuse to charge as requested. * * * These written requests are more in the nature of briefs than anything else. * * * But the truth is, these written arguments, in the way of requests, are of but little use. The Court are bound to charge upon every point material to the case upon which there is evidence, and to charge correctly and fully, whether requested or not." And in Campbell v. Day , 16 Vt. 560, the same Court say: " It is incumbent on the Court to charge the law correctly, and they may adopt their own language."
In Lowry v. Beckner, 5 B. Monroe, 42, the Court of Appeals of Kentucky say: " The Court had the unquestionable right to refuse all the instructions asked on both sides, and give such prepared by himself as might be illustrative of the principles of law involved in the controversy, in any aspect of the proof."
In Theobald v. Hare, in the same Court, (8 B. Monroe, 42,) the question of a material modification was directly before the Court, and it was decided that it is proper to modify or add to instructions asked by a party, to meet the Court's opinion of the law of the case.
In Mask v. The State , 36 Miss. 7 George, 94, the High Court of Errors and Appeals of Mississippi say: " It is not only the right, but the duty of the presiding Judge, to modify all instructions so as tomake them conformable to his own views of the law. In the exercise of this right, this Court is to presume that the high and dignified tribunals to whose discretion it is previously committed, are always actuated by motives consistent with the delicate, responsible, and important trusts confided to their care.
" While, therefore, we admit the soundness and force of the views of counsel as to the impolicy, as a general rule, of the unnecessary interference of the Court in modifying instructions for the defendant, drawn with legal accuracy and precision, both as to the terms employed and the principles declared, yet this is a matter of discretion and taste for their determination, and not ours, so long as they properly declare the law given in charge."
Was there any misconduct on the part of the jury in adopting the means they did to arrive at their verdict?
The rule is well settled that the affidavits of jurors in exculpation of themselves, and in support of their verdict, are admissible, and that they are not admissible to impeach their verdict, unless rendered so by special statute. This case is not brought within the statute--it was not " a resort to the determinationof chance," but simply finding the average of the deliberate judgments of the jurors, formed and expressed under the solemnities of an oath. Until the contrary is shown, we must suppose that each juror expressed his own judgment honestly.
As was said by the Supreme Court of Virginia, in Thompson's Case, 8 Grattan, 637: " What more, we would ask, have the jury done in this case than what we know is of every day occurrence in trials of Courts of equity, where, when a question of damage, or value, or compensation, arises before the Master, and when witnesses of equal credibility, or integrity and intelligence, differ in their estimates, the Master adopts as his assessment an average of the estimates of such witnesses; and this practice is sanctioned by a Court of equity, which is a Court of conscience, as it is by law and justice. Indeed, in some cases, it may be considered a rule of necessity as well as convenience." At least, there is no element of chance in such a method. It does not in any respect resemble throwing up cross or pile, as in Mellish v. Arnold, 1 Bun. 51, or hustling half pence in a hat, as in Parr v. Seaver, Barnes, 438, or drawing lots, as in Hale v. Cove, 1 Stra. 642, or flipping coppers, or throwing dice, or any other means resorted to for the determination of any matter, when men are willing to trust to blind chance rather than their own judgments. The whole subject is ably discussed in Thompson's Case, 8 Grattan, 637. (See also Cowperthwaite v. Jones, 2 Dall. 55; Chandler v. Baker, 2 Harrington, 387; Heath v. Conway, 1 Bibb, 398; Opinion of Chief Justice Kent in Smith v. Cheatham, 3 Caines, 61; Dana v. Tucker, 4 Johns. 488.)
Charles E. Filkins, for Appellant.
W. C. Belcher and C. E. De Long, for Respondent.
C. E. Filkins, for Appellant, on petition for rehearing.
The common law, as well as American authorities, agreeing that such a verdict as the one rendered in this case is vicious and void, and ought not, in morals or in law, be permitted to stand. And a number of cases show that hearsay evidence (the remarks of jurors on the subject, and the testimony of the officer having a jury in charge as to what he saw the jurors do and heard them say in the jury room) has been held good enough evidence to impeach such verdicts. And thus, in the anxiety of the law to detect and punish fraud on the part of jurors, the ordinary rule of evidence has been changed.
Tothe general rule that the affidavit of a juror is inadmissible to impeach the verdict there is an important exception which those learned authors distinctly enunciate in their text in 3d Graham & Waterman on New Trials, 1,447, under the head of " As to the mode adopted in their finding," which is as follows:
" But though jurors after a verdict cannot be permitted to testify as to the reasons and motives of their determination, yet they may show the mode adopted by them in deciding as to the amount of damages." (8 Harrington, 469; 6 Mass. 272; 7 Mass. 110; 6 Pickering, 206.)
It is conceded that under the law as it existed prior to the Act of March 5, 1862, (subject to one exception, which will be hereafter explained,) the reasoning of the Court is right; and, consequently, if that statute does not materially alter it, and the case does not fall within the exception, there is no ground for complaint on the part of the respondent.
The relevant part of the statute is contained in its second section, which reads as follows:
" Misconduct of the jury, and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or toa finding on any question, or questions, submitted to them by the Court, by a resort to the determination of chance; such misconduct may be proved by the affidavits of any one or more of the jurors."
The learned Court will agree with me that the law as it existed for twelve years in this State, as to how misconduct on the part of jurors could be proved, was unsatisfactory, and that the legislative department, in the exercise of its undoubted authority, intended, by the law of March 5, 1862, to a greater or less extent to remedy the mischief by holding jurors to a more conscientious discharge of their duties, and removing from them the temptation to careless or dishonest action, which the rules of the common law excited by withholding the only means of detecting it.
A verdict reached by the mode adopted in this case is called a " chance verdict," by the Supreme Courts of the States of Massachusetts, New York, Rhode Island, Indiana, Tennessee, and Iowa and also by the learned authors, Graham and Waterman. (Dorr v. Fenno, 12 Pickering, 521; Dunn v. Hull, 8 Blackford, 32; Forbes v. Howard, 4 R.I. 364; Harvey v. Pickett, 15 John. 87; Mannix v. Meloney, 8 Iowa 81; 3 Graham & Waterman, 1,447.)
JUDGES: Sanderson, C. J.
OPINION
SANDERSON, Judge
By the Court, Sanderson, C. J., on petition for rehearing.
We are asked to grant a rehearing in this case upon two grounds: First--Because we have erred in holding that at common law the verdict in this case cannot be impeached by the affidavits of the jurors; and Second--Because we have erred in holding that the verdict is not a chance verdict within the meaning of the second subdivision of the one hundred and ninety-third section of the Practice Act. In respect to these points this case was decided upon the authority of Turner & Platt v. The Tuolumne Water & Mining Company , 25 Cal. 397. We there held that, although there was some conflict of authority, the better rule was that, at common law, the affidavits of jurors could not be received for the purpose of impeaching their verdict. By so doing we did not establish the rule for the first time in this State; on the contrary, we merely affirmed a rule which was established as early as the first volume of California Reports and has been strictly adhered to from that time to the present. In the case of The People v. Baker , 1 Cal. 405, Mr. Justice Bennett said: " We consider it a settled rule, founded upon considerations of necessary policy, that the testimony of a juryman cannot be received to defeat his own verdict." In Amsby v. Dickhouse , 4 Cal. 103, Mr. Chief Justice Murray said: " It is well settled that a juror cannot be allowed to impeach his own verdict. The reason of this whole-some rule of law is too obvious to require any explanation." The same rule was declared in Castro v. Gill , 5 Cal. 42, by Mr. Justice Heydenfeldt. In Wilson v. Berryman , 5 Cal. 45, the rule was again reiterated by Mr. Chief Justice Murray. In The People v. Wyman , 15 Cal. 75, the verdict was sought to be impeached upon the ground that it was not a fair expression of the opinion of the jury, and the affidavit of one of the jurors was relied on for that purpose. The opinion of the Court was delivered by Mr. Justice Cope, who said: " We have repeatedly decided that this cannot be done." Thus the law of this question had become too firmly established in this State to be disturbed by the judiciary, and in order to effect a change it was found necessary in 1862 to resort to legislative action. This was done, and it was enacted that verdicts found by a " resort to the determination of chance" might be impeached by the affidavits of the jurors. (Stats. 1862, 38.) But it is argued that while such is the general rule at common law, there are exceptions to it. Admitting this to be so, we answer, in the first place, that the Legislature of this State has legislated in regard to those exceptions, and that such legislation has superseded the common law. By declaring in what cases verdicts may be impeached by the affidavits of jurors, the Legislature, upon the maxim, expressio unius, exclusio alterius est, has declared that verdicts of a different class shall not be so impeached. And we answer in the second place, if such exceptions exist, this verdict, viewed by the light of the common law as heretofore declared in this State, does not fall within the exception. In Wilson v. Berryman, before cited, the verdict was found by the same process as in the present case. The facts were brought to the notice of the Court by an affidavit which was sworn to by one of the jurors and also by the Sheriff. The Court expressly held that the affidavit, so far as it was the affidavit of the juror, could not be received to impeach the verdict. Thus, however it may have been elsewhere before the decision of the present case, in this State it had been judicially determined that verdicts like the present did not fall within any supposed exception, but were within the general rule of the common law.
As stated in our opinion in Turner & Platt v. The Tuolumne Water and Mining Company, the authorities elsewhere are conflicting. We do not attempt to reconcile them; to do so would be impossible. We ground the rule upon the decisions and the legislation of this State, and we declare the law to be in this State, however it may be elsewhere, to the effect that the affidavits of jurors cannot be received in any case to impeach their verdict, except as provided in the second subdivision of the one hundred and ninety-third section of the Practice Act. And in conclusion upon this branch of the case, we may add that a line of judicial decision which struggles to multiply exceptions to a plain and simple rule, founded on considerations of the wisest policy, is not to be favored; on the contrary, the struggle should be to bring every case within the rule, lest the rule itself become shadowy, and in time wholly disappear in a multitude of exceptions.
Upon the point as to whether the verdict in this case is a chance verdict within the meaning of the one hundred and ninety-third section of the Practice Act, as amended in eighteen hundred and sixty-two, our opinion remains unchanged. In addition to what is said upon this point in our opinion in Turner & Platt v. The Tuolumne Water and Mining Company, (ante, p. 397,) reference may be made to the history of the amendment of eighteen hundred and sixty-two, for the purpose of ascertaining what the evil was which the Legislature had in view, and for which they sought to provide a remedy. On the 1st of March, 1862, a judgment was rendered, upon the verdict of a jury, in the Twelfth District Court, in the case of Donner v. Palmer. (The case is reported in 23d Cal., at page 40.) For the purpose of showing how the verdict in that case was found, we make the following extract from the opinion of the Court delivered by Mr. Justice Crocker: " The affidavit of one of the jurors, Day, after stating generally what occurred in the jury room in the way of discussion and votes, states that after a time a vote unanimous for the plaintiff was taken, but immediately thereafter Hiller and Fortune, who are charged with the misconduct, recanted and said their vote was not according to their convictions; and soon after the affiant saw Fortune approach Hiller, and heard him propose to the latter that he would place a piece of money and the latter should guess heads or tails, and if he guessed right then their verdict should be for the plaintiff; that Hiller assented; that Fortune then placed a piece of money and covered it so that the former could not see it; he guessed, and they announced that he had guessed right, and they thereupon agreed to a verdict for the plaintiff, but both said it was still contrary to their convictions."
Here was a clear case of chance, without any proof of the fact except by the affidavits of the jurors. Under the law as it then stood these affidavits could not be received. The Legislature was in session at San Francisco, where the case was tried. The verdict was rendered on the first of March. On the fifth of the same month the bill amending the one hundred and ninety-third section of the Practice Act so as to allow verdicts to be impeached by the affidavits of jurors, on the ground of chance, was signed by the Governor, and became a part of the law of the land. Thus, aside from the mere wording of the law, the intent of the Legislature is made clear by a legitimate reference to the facts and circumstances which led to the passage of the Act. The Act was made broad enough to cover the case then in the mind of the Legislature and others like it. In our judgment the verdict in this case is not like it. Some cases are cited by counsel where the Court, in commenting upon verdicts like this, loosely employ the words " chance" and " hazard," but the precise question, to wit: whether such a verdict is a chance verdict, which is here directly presented, was not involved, the question there being whether such a verdict was good or bad. On the contrary the cases cited in our former opinion, and upon which it is based so far as authority is concerned, show that the precise question which we have considered was there considered and passed upon. Counsel has filed an able argument in support of his petition, but we find therein no reason for a change of opinion.
Rehearing denied.