Nelson v. Mitchell

Headnote

Errors assigned upon instructions given by the Court below, will not be considered by this Court, unless there is an authenticated statement of the evidence to show the pertinency or relevancy of such instructions.

Appeal from the County Court of Sutter County.

This was an action of trespass, for injuries done to plaintiff’s farm, in turning thereon stock, horses, mules, and cattle. The action was originally commenced in a Justice’s Court, where the defendant had judgment. Plaintiff appealed to the County Court, where judgment was again rendered for the defendant. On the trial in the County Court, plaintiff asked the Court to give certain written instructions to the jury, some of which were given, and some refused. The record sets out the instructions, but contains no part of the evidence to show their relevancy, After verdict, plaintiff moved the Court to set aside the same, and grant him a new trial, on two grounds :

1. The jury conversed with the officer having them in charge, after they had retired to deliberate respecting the case.

2. Because of misconduct of the jury after they had retired to deliberate upon the verdict.

The evidence to support this motion was, that the sheriff being asked by one of the jurors “ if they were to be governed by the instructions of the Court," answered that he was not allowed to talk to them, but would ask the Judge. Thereupon, the sheriff sent his deputy to see the Judge, who soon returned with the answer, “that the instructions were for them to be governed by or they would not have been given,” which answer the sheriff repeated to the jury.

Some of the jury were outside of the door of the jury-room, on the piazza, during their deliberations. As soon as the sheriff saw them there, he requested them to go in, which they did.

The motion for a new trial was denied, and plaintiff appealed.