Flesher v. Hale

Citations

• 22 W. Va. 44
• 1883 W. Va. LEXIS 38

Syllabus

<p>1. It is the settled law of this State, in both criminal and civil trials, that the verdict of a jury will not be set aside for objections to jurors, on grounds which existed before they were sworn, unless it appears that by reason of the existence of such grounds the party objecting-has suffered wrong or injustice ; and the ignorance of the parties of the existence of such grounds until after verdict is immaterial, (p. 47.)</p> <p>2. But if after the jury has been sworn facts are established which show that improper influences were brought to bear upon it, or that its members, or any of them, were guilty of improper conduct, such as might have resulted prejudicially to the losing party, a presumption arises against the purity of the verdict; and unless there is testimony which shows the verdict was not affected by such influences or conduct, it will be set aside; and the burdep. of producing such testimony is upon the party claiming the right to keep the verdict, 'p. 48.)</p> <p>3. If, however, a new trial is asked on account of such improper influences or misconduct of the jury, it must appear that the party so asking called the attention of the court to the same at the time it was first discovered or as soon thereafter as the course of tlio proceedings would permit; and if he fail to do so, he will he held to have waived all objection thereto, unless it be a matter which he could not waive or which could not have been obviated by attention having been promptly called to it at the time it was discovered, (p. 43.)</p> <p>4. The knowledge of the attorney of such improper influences or conduct is the knowledge of his client, (p. 49.)</p> <p>5. When a party moves for a new trial on the ground of misconduct of the jury, which occurred during the trial, he must aver in his motion and show affirmatively that both he and his counsel were ignorant of the fact of such misconduct until after the trial; and of course, when the proof which shows the misconduct also shows th