Solomon v. State , 71 Miss. 567 ( 1893 )

Woods, J.,

delivered the opinion of the court.

The action of the court below, in overruling appellant’s motion for a continuance, should not be reversed, unless there was abuse of that discretion necessarily confided to the trial court in this decision, as in all others on points affecting methods of procedure only, for it is the abuse of discretion alone which, will authorize our active intervention. We fail to .discover any evidence of such abuse of sound discretion in the action complained of. The hearing oí the cause had twice been postponed to later days of the trial term at the request and for the accommodation of appellant. When, on the third call of the ease, on the day agreed upon for appellant’s convenience, the motion for a continuance for the term was presented, an effort was made to support it by the evidence of the attending physician, but this evidence was exceedingly general and inconclusive, and was not of that character which clearly .required the court to postpone the-trial to another term. The appellant was free from' fever, was doing very well, had a good pulse, and was out of bed and dressed, according to the testimony of the physician; and the extent of his opinion as to danger to be apprehended by appellant from an appearance in court was that that he thought it would be better for appellant to remain at home,, unless he had imperative business elsewhere. The physician,, though perfectly aware of the true condition of appellant, declined to say that any hurtful results would attend upon or follow appellant’s appearance in court, in his opinion. On this showing, it appears clear to us that the exercise of discretion of the court below, in denying the application for continuance," was rightful.

The second assignment of error is bound up in the first, and is disposed of by what we have already said in passing upon the first assignment.

The court, for the appellee, charged the jury that if appellant, Solomon, sold liquor to appellee’s husband when he, the husband, was drunk, the verdict should be for the plaintiff; and for appellants, the jury was instructed by the court that the salesman who was shown to have made this particular sale, must have had good reason to believe that the person to whom he sold was intoxicated, and that unless the jury was satisfied from the evidence that the salesman had such good reasons for believing the buyer was drunk, the verdict should be for the defendants. Clearly, the appellants have no ground for complaint. They received all they were entitled to on this branch of the instructions.

On no other action of the court, in giving or refusing charges asked by either party, can be found any place for criticism.

The verdict was perfectly responsive to the law as given, and to the evidence as a whole. It is impossible to conceive of its having been otherwise. The proof is overwhelming, on every hand, that it was a flagrant disregard of the plain requirements of our law, which forbids sales of liquor to a drunken man. The verdict was a most righteous one. There was no error in the refusal of the trial court to set aside this righteous verdict and award a new trial.

The only room for contention as to the impartiality of the trial is to be found in the fact that one of the jurors who tried the case was found, after trial, to have been a “ fifth or sixth cousin” of the appellee. Indeed, it appeared that the relationship was so remote as to he not distinctly namable. Even according to the rule of the ancient common law that kinship between the offered juror and either party litigant within the ninth degree, computing according to the civil law, is ground for challenge propter affectum, the juror complained of was not within the prohibited degree. But no challenge was made, and the great preponderance of the evidence which was permitted to be offered on this point, on motion for new trial, establishes the fact that the juror was not examined as to kinship at all. The fact of the remote relationship, it was permitted to be shown, was not voluntarily disclosed by the juror, before his acceptance, because it was so remote the juror did not himself recall it. While verdicts should not be open to suspicion of having been influenced by kinship, or other unfair means, we see no just cause for subjecting this verdict to any suspicion whatever. No influence was sought to be exerted by the juror in question, and it is incontrovertible that his verdict was not the result of prejudice. No other verdict than the one returned could have been rendered by any honest man, on the evidence in this record before us, under the charges given by the court. The judgment must stand by way of punishment of the appellant, Solomon, and by way of warning to all others engaged in a dangerous traffic.

Affirmed.