Wright v. Eastlick

VAN DYKE, J. This action involves a contest regarding a line dividing mining claims in Siskiyou county. The trial was by jury, and the verdict and judgment for the defendants. The appeal is from the judgment and from an order refusing the plaintiffs’ motion for a new trial. Among the grounds of the motion for a new trial is the alleged misconduct of the jury. And this is pressed on the appeal. The misconduct complained of relates principally to the jurors John Keville and John B. Lowden, the former of whom was elected and acted as foreman. The affidavits produced in support of the motion for a new trial show that during the progress of the trial Keville approach the plaintiff, H. D. Wright, and stated to him, that he, Keville, “was going to do the right thing; that he was pretty well satisfied who the right one was, and that he was a pretty good talker, and could make the jury see things in the right light.” This occurred just prior to the departure of Keville from Yreka to Montague. On arriving at Montague he told [518]James M. Davidson, a witness in the case, and John T. Bradley, that plaintiff Wright had, during the trial of the case, approached him and commenced to talk with him ahont the said cause, and that he had told said Wright to stop talking to him about the case, and that if he did not that he would report him to the court. Said Neville also stated to Charles J. Fry during the progress of the trial that appellant Wright had attempted to talk to him about the trial for the purpose of influencing him in his verdict. The affidavit of Wright contradicts point blank this statement of the juror Neville; and, on the other hand, it is stated in Wright’s affidavit that Neville attempted to approach him and talk about the case, and in his 'denials and affirmative statements Wright is corroborated; and Neville, in his counter-affidavit, does not attempt to controvert or impeach Wright’s affidavit.

It is further shown by the affidavits of several parties that pending the trial, and on New Tear’s eve, Neville attended $■ dance at Hawkinsville, some two and one-half miles from Yreka, in company with W. W. Eastlick, one of the defendants. They went together in the same conveyance to the dance, and returned in like manner to Yreka. During the night of the dance at Hawkinsville they drank and got drunk together; were “partners,” and frequently walked alone from the dancehall to the saloon and appeared to be quite intimate. Just prior to attending this dance Neville stated to one of his cojurors, Elliott B. Taylor, that he, Neville, was broke. On the day after John Lowden, who, it appears, had been an intimate associate of Neville during the progress of the trial, stated to juror Taylor that Neville had made “a killing of ninety-seven dollars.” And Neville, on his return from the dance, stated to juror Taylor that he “blowed in a deal of money.”