Godfrey v. Theodore , 33 La. Ann. 915 ( 1881 )

The opinion of the Court was delivered by

Poché, J.

Plaintiff brings this suit for damages in the sum of $18,500, alleged to have been caused him by a malicious criminal prosecution brought against him'by defendants; and he has appealed from an adverse verdict and judgment.

Our attention is called to the refusal of a new trial by the district judge as prayed for, on the following alleged irregularities:

1st. That the verdict was contrary to the law and the evidence.

2d. Alleged improper conduct of the jury.

First — As to the first ground, we think that the judge in the exercise of his sound discretion, properly overruled it.

Second — The second ground contains two separate charges; first, that one of defendant’s attorneys, Mr. Claiborne, improperly communicated with one of the jurors, during the trial, by handing him a slip of paper.

The district judge, after hearing the testimony of the isolated witness who made the charge, and the denial of the same by several other witnesses, refused to believe the slander, and we are happy to note that in his oral argument before this Court, counsel for plaintiff disclaimed any belief in the truth of this malicious and silly charge against an honorable and honored member of this Bar; second, it is next urged that, after the submission of the case to the jury, several members of that body were tampered with, and held conversation with an outside party. The district judge properly rejected the affidavit of one of the jurors in support of this charge, and correctly held that a juror cannot be heard as a witness of his own alleged turpitude. State vs. Beatty, 30 An. 1266; State vs. Nelson, 32 An. 847.

The testimony on this point showed that, with the permission of the presiding judge, the jury, in its deliberation, occupied the court room, to which the recorder of the parish had access by means of a key of his, which unlocked the entrance door of the room occupied by the jury; that, in search of some of his books, which he had left in the court room, that officer, in ignorance of the presence therein of the jury, had opened the door, which he immediately closed, on discovering the presence of the jury, and that he had spoken to, or communicated with, none of the jurors.

We fully concur with the judge a quo in refusing a new trial on such flimsy grounds.