Martin v. Mitchell

28 Ga. 382

Opinion

By the Court.

Benning, J.,

delivering the opinion.

We rather think that the court below was right, in refusing the request of the caveator’s counsel, to ask the jurors answering the first question put to them, in the affirmative, the additional question, what was “the source or foundation of that opinion?” We rather think, that, by our law, as it is now, the formation and expression of an opinion, by a person, that one of the parties ought to prevail over the other, is, in all cases, a disqualification to him, as a juror. By our law, as it is now, the jury are sworn to decide according to the evidence. By the old law, a juror might decide on his own private knowledge;' and, indeed, he was deemed the best juror, who had private knowledge of the case, who was a witness. Hence, it was, that jurors were taken from the vicinage.

But it is not necessary to decide this question. The effect of not putting the proposed question was merely, to exclude the juror, and to substitute for him another juror who had not expressed any opinion at all, whether' an opinion founded on personal knowledge, or one on something else. Now, to such a juror there could be no objection. He would at least be as good a juror as the other could have been.

Then suppose the case was, that the jurors formed and expressed an opinion, was an opinion against the caveat- or. Would the rejection of such a juror be a ground on which he could found an objection ? Certainly not. And it does not appear in whose favor their formed and expressed opinions were.

[1.] We think, then, that this is not a sufficient ground for a new trial.

[2.] The release executed by McCulloch and his wife freed him from all interest in the event of the suit. And that was enough to make him competent as a witness. The fact that the releasé was to his children, was a fact to affect his credit only. This is too well settled to be questioned.

[3.] We think that the qualification made by the court, to the charge first requested, was proper. It is sufficient, if a will be read to a blind man; it is not necessary that the reading should be in the presence of the witnesses to the will. The statute of frauds does not go that far.

[4.] In the refusal of the second request to charge, and in the charge given in lieu of that request, we understand the court, merely to have let the jury know, that, although they might deem the making of such a will as the one before them morally wrong, yet that their so deeming it would not authorize them to find the will a void will. And thus understanding the court, we see nothing amiss in what the court said and refused to say. A man, in making his will, is not bound to square its provisions, by the opinion which others may entertain of their morality or justice.

[5.] There was nothing to excite suspicion in the fact that one of the jurors slept in the same room with one of the counsel for the prevailing party. The room was in a public tavern; there was no conversation about the case; the juror slept in the same bed with the sheriff; that was the only spare lodging place in the tavern ; the cost of the lodging was defrayed by the juror himself; the evidence was quite sufficient to justify the verdict. Still, it is but proper to say, that even such conjunctions are tobe regretted; and that they ought to be carefully scrutinized.

Judgment affirmed.