Day, J.
1. ELECTION: wager : juror disqualified. The appellant, in support of Ms motion for a new trial, filed the affidavit of one Frank Haynes, that he had money bet upon the result of the election of sheriff, with one A. Caldwell, who served as a juryman in the trial of the cause, Caldwell betting that Edward L. Swem would be elected sheriff of Linn county, and Haynes betting to the contrary, and that the money so bet, and put up on the election, was subject to be paid on the decision of this cause. The affidavit of one G-. A. Patterson was also filed, that on the 18th day of January, 1881, said A. Caldwell stated in the presence of affiant that it would be money in his (said Caldwell’s) pocket to have Edward L. Swem declared elected sheriff of Linn county, and seated as said sheriff; that said Caldwell and said Edward L. Swem held a-private conversation before Caldwell was summoned as a juryman in this cause; that almost immediately after said consultation, which took place at Park Place Hotel, Caldwell started for the court house, and immediately after reaching the court house he was chosen from among the bystanders as a juryman in the case. The affidavit of Frank Winson was filed, that on or about - January IT, 1881, Caldwell stated in his presence and to him, that it would be money in Ms pocket to have Edward L. Swem elected sheriff. The plaintiff filed his affidavit stating that he never knew or heard of the facts set forth in the foregoing affidavits, until after the return of the verdict. The. attorneys of plaintiff .also filed their affidavit, stating that they never knew or heard of the facts stated in the foregoing affidavits, until after the return of the verdict, and that A. Caldwell, before being impaneled or received as a juror to try the cause, was sworn and examined as to his qualifications as a juror, and asked if he had ever formed or expressed any opinion as to the merits of the cause, or was in any manner interested in the action.
[43] The appellee caused to be filed tbe affidavit of A. Caldwell, as follows: “That prior to or during the trial of said cause I never bad any conversation, whatever, witb E. L. Swem, or witb either of bis attorneys in regard to said suit or tbe matters involved therein, at tbe Park Plack Hotel, or any other place whatever; that I never spoke to said Swem about said matters in controversy at any time or place, prior to tbe decision of said cause, nor did be ever talk witb me about tbe same, or about being a juror in said cause; that prior to tbe general election of November 2, 1880, I did make a bet of twenty-five cents witb Prank Haynes that Swem would be elected sheriff; that said bet was made only at tbe solicitation of said Haynes, and more by way of banter than in earnest; that after tbe contest, before tbe election board of contest, was decided, at Haynes’ request, I paid over tbe money to him; that it was such a trivial matter I bad utterly forgotten it at tbe time I was called as a juror in tbe cause; that I bad no interest whatever in tbe result of said action, and bad neither formed nor expressed an opinion as to tbe merits of tbe action; that I never used tbe expression that it would be money in my pocket to have E. L. Swem declared elected sheriff of Linn county, as sworn to by G-. A. Patterson, and Prank E. Winson, * * * but remember saying to said ’Winson that-1 did not care who was elected sheriff, although I could have made more from Swem, as be might have wanted livery from my stable; that said remark was made in a general conversation, and was not meant or intended by me as anything serious, as I bad no conversation witb said Swem at any time about livery. I am sure that I bad no interest whatever in said Swem’s election, and that tbe above matters made no impression, or bad no influence upon me as a juror, or otherwise.” Tbe court made an order that tbe affiants appear and submit to a cross-examination, upon which Prank Haynes testified as follows: “Before election I bet twenty-five cents witb Caldwell; I bet Seaton would be elected, and he bet Swem would be elected sheriff. Tbe money was put [44] up iu Mr. Parson’s hands. After the election, Mr. Caldwell drew the money with my consent. Then Seaton contested the election, and the three persons decided in his favor, and after that, when .Mr. Seaton was declared elected, Caldwell paid me back the money.”
“ Question. What was said between you at that time, in regard to that money, in case it was subsequently reversed?
“ Answer. 1 told him if it went the other way I was-to have the money, and if it went the other way again I was to pay him the money. I told him I would pay him the money.”
Free access — add to your briefcase to read the full text and ask questions with AI
Day, J.
1. ELECTION: wager : juror disqualified. The appellant, in support of Ms motion for a new trial, filed the affidavit of one Frank Haynes, that he had money bet upon the result of the election of sheriff, with one A. Caldwell, who served as a juryman in the trial of the cause, Caldwell betting that Edward L. Swem would be elected sheriff of Linn county, and Haynes betting to the contrary, and that the money so bet, and put up on the election, was subject to be paid on the decision of this cause. The affidavit of one G-. A. Patterson was also filed, that on the 18th day of January, 1881, said A. Caldwell stated in the presence of affiant that it would be money in his (said Caldwell’s) pocket to have Edward L. Swem declared elected sheriff of Linn county, and seated as said sheriff; that said Caldwell and said Edward L. Swem held a-private conversation before Caldwell was summoned as a juryman in this cause; that almost immediately after said consultation, which took place at Park Place Hotel, Caldwell started for the court house, and immediately after reaching the court house he was chosen from among the bystanders as a juryman in the case. The affidavit of Frank Winson was filed, that on or about - January IT, 1881, Caldwell stated in his presence and to him, that it would be money in Ms pocket to have Edward L. Swem elected sheriff. The plaintiff filed his affidavit stating that he never knew or heard of the facts set forth in the foregoing affidavits, until after the return of the verdict. The. attorneys of plaintiff .also filed their affidavit, stating that they never knew or heard of the facts stated in the foregoing affidavits, until after the return of the verdict, and that A. Caldwell, before being impaneled or received as a juror to try the cause, was sworn and examined as to his qualifications as a juror, and asked if he had ever formed or expressed any opinion as to the merits of the cause, or was in any manner interested in the action.
[43] The appellee caused to be filed tbe affidavit of A. Caldwell, as follows: “That prior to or during the trial of said cause I never bad any conversation, whatever, witb E. L. Swem, or witb either of bis attorneys in regard to said suit or tbe matters involved therein, at tbe Park Plack Hotel, or any other place whatever; that I never spoke to said Swem about said matters in controversy at any time or place, prior to tbe decision of said cause, nor did be ever talk witb me about tbe same, or about being a juror in said cause; that prior to tbe general election of November 2, 1880, I did make a bet of twenty-five cents witb Prank Haynes that Swem would be elected sheriff; that said bet was made only at tbe solicitation of said Haynes, and more by way of banter than in earnest; that after tbe contest, before tbe election board of contest, was decided, at Haynes’ request, I paid over tbe money to him; that it was such a trivial matter I bad utterly forgotten it at tbe time I was called as a juror in tbe cause; that I bad no interest whatever in tbe result of said action, and bad neither formed nor expressed an opinion as to tbe merits of tbe action; that I never used tbe expression that it would be money in my pocket to have E. L. Swem declared elected sheriff of Linn county, as sworn to by G-. A. Patterson, and Prank E. Winson, * * * but remember saying to said ’Winson that-1 did not care who was elected sheriff, although I could have made more from Swem, as be might have wanted livery from my stable; that said remark was made in a general conversation, and was not meant or intended by me as anything serious, as I bad no conversation witb said Swem at any time about livery. I am sure that I bad no interest whatever in said Swem’s election, and that tbe above matters made no impression, or bad no influence upon me as a juror, or otherwise.” Tbe court made an order that tbe affiants appear and submit to a cross-examination, upon which Prank Haynes testified as follows: “Before election I bet twenty-five cents witb Caldwell; I bet Seaton would be elected, and he bet Swem would be elected sheriff. Tbe money was put [44] up iu Mr. Parson’s hands. After the election, Mr. Caldwell drew the money with my consent. Then Seaton contested the election, and the three persons decided in his favor, and after that, when .Mr. Seaton was declared elected, Caldwell paid me back the money.”
“ Question. What was said between you at that time, in regard to that money, in case it was subsequently reversed?
“ Answer. 1 told him if it went the other way I was-to have the money, and if it went the other way again I was to pay him the money. I told him I would pay him the money.”
It appears clearly that, whilst the wager was paid to Haynes upon the determination in favor of Seaton, it was paid with the understanding that the whole amount should be paid back if the decision in favor of Seaton should be reversed. The bet thus became a wager as to the ultimate result of the very trial in which Caldwell was called as a juror. If these facts had been disclosed before he had been accepted as a juror, they certainly would have furnished ground for a challenge for cause. It is entirely opposed to all our ideas of the impartiality which should characterize judicial proceedings, that controversies between parties should be decided by persons who have made wagers as to the result. If it is" competent for one juror to serve who has made such a wager, then the whole jury may be composed of persons who have wagers pending upon the result. That such a thing should be tolerated is offensive to every notion of justice. There can be no assurance that a just and impartial decision can come from such a source. Decisions of courts can command respect and confidence only when it appears that they are announced by parties absolutely without prejudice or bias. It is true the amount of the bet is very small. But there is no legal principle upon which it can be said that a juror having a wager of one thousand dollars as to the result of a litigation is incompetent, and one having a wager of twenty-five cents is competent. Courts cannot determine as to degree of bias, [45] nor will it do to hold a juror having any bias is competent. The wager seems to have been regarded by the parties to it as a matter not wholly without interest. When the 'result was declared in favor of Swem, Caldwell drew the whole sum, and when this result was reversed, and Seaton was declared elected, the amount was paid, to Haynes, not, however, without a promise to pay it back if Swem should ultimately obtain a decision in his favor. It will not do to say that Caldwell was not rendered incompetent, because the law would furnish him no remedy to recover the amount of the bet. If this be held, then all the jurors in a cause may have bets, however large, depending upon the result of the controversy, and still be competent. Who can say to what extent the desire of a party, who has made a bet, to have his judgment sustained, would influence him when called upon to determine from evidence, whether the fact accorded with or was opposed to his previously expressed opinion as to the result? Can it be said that a party who has made a bet, however small, as to a future event, has expressed no opinion as to the result? Can it be said that a person in such a situation is in a condition, impartially and without any bias, to weigh the evidence upon which depends the determination of the existence or non-existence of the event. Ordinarily one expects what he desires, and bets upon the accomplishment of what he expects. Usually the mere fact of making a bet indicates a bias. One who is entirely indifferent ■ respecting an event rarely makes a bet respecting it.
In Essex v. McPherson, 54 Illinois, 349, a verdict was set aside upon the ground that one of the jurors had previously made a bet of a neck tie that the result of the cause would be in favor of the prevailing party. The court said: “Eor a juror to set in the trial of a cause upon the result of which he has a wager depending, is a gross impropriety and offensive to the sense of justice. See Stafford v. The City of Oskaloosa, 57 Iowa, 748. A new trial should have been granted.
Eeveesed.