Boetge v. Landa , 22 Tex. 105 ( 1858 )

Bell, J.

We do not discover any error in the proceedings in the court below, which will require us to disturb the judgment. There is no statement of facts in the record. The petition charged fraud and combination on the part of both defendants in the court below, to procure money from the plaintiff, and there was an allegation that the four hundred dollars first paid by Landa on the draft of Behrens, was divided equally between Behrens and Boetge. We perceive no error in the instructions of the court to the jury. The liability of Boetge was put on clear and proper grounds by the judge, and we must presume, in the absence of a statement of facts, that the jury found a verdict in accordance with the testimony. Some of the grounds on which the motion for a new trial was based, axe trivial, and all of them taken together are manifestly insufficient to support the motion. The pretence that the verdict ought to have been set aside, because the jurors were not sufficiently acquainted with the English language, to understand the testimony and the instructions of the court, was entitled to no consideration. The jury was doubtless accepted by the parties according to the usual forms of practice, and they could not afterwards be heard to question the competency of jurors accepted by themselves.

Another ground for the motion for a new trial, was, that one of the jurors had been coerced and intimidated by the foreman of the jury, and never in fact assented to the verdict. The record .shows that the jury returned a sealed verdict into court, and were allowed to disperse. The next morning, they were called into court, and the verdict was opened and read. The jury were polled, and one juror declared that the verdict had not been assented to by him. They were then ordered to retire and to consider further of their verdict. After further deliberation, for the space of two hours, they came into court, and returned the same verdict which had been brought in before. The jury were again polled, and the juror Bernhard, declared that the verdict was his verdict. We think that a verdict returned into court, and received by the court under such circumstances, cannot be set aside on the ground that one of the jurors had been coerced into assenting to it. The juror had been called on by the court to declare, whether or not he assented to the verdict. If he had been under any restraint while in the jury room, he should have disclosed the fact, when solemnly called on in open court, to say, whether or not the verdict returned was his verdict. He was then under the protection of the court, and under the most solemn obligation to answer truly. We cannot conceive that any but unworthy motives could influence a man to declare solemnly in open court, that he had assented to a verdict, and then to proclaim on the corners of the streets, that he had been intimidated and coerced into an assent to the verdict. The judge below ought not to have given audience to the affidavit of the juror under such circumstances, and might properly have punished his contemptuous trifling with the time and authority of the court.

There was no error in refusing to permit the deposition of the witness Robert Berhem to be read, because it appears in the bill of exceptions, that the witness was within the precincts of the court, when the deposition was offered.

It is unnecessary to notice some other extraordinary features of the record. We are of opinion, that there was no error in the judgment of the court below, and it is affirmed with damages.

Affirmed with damages.