Nutter v. Ricketts

Woodward, J.

— The first error assigned, is to the overruling a motion of defendant, to exclude the deposition of Loren Gr. Butler, for the reason that one of the attorneys of the plaintiff was present before the commissioner, at the time of taking the deposition, and influenced him and the witness, in a manner prejudicial to the rights of defendant ; and a bill of exceptions shows that on the hearing of this motion, one of plaintiff’s attorneys stated that he went to Chicago to see that the deposition was taken, and that the witness should attend, and should testify to all he knew; that he was with witness three or four days, and drank liquor with him while there, and “ endeavored to post him up in relation to the casethat when before the commissioner, he did not speak to the witness, nor prompt, nor suggest, any answer; and that he did not propose to witness to swear to anything that he did not know 10 be true ; and he denied any improper conduct towards the witness. The deposition was taken by commission and interrogatories.

We do not perceive, in this, a substantial ground for setting aside the deposition. The mere fact that plaintiff’s attorney was present at the taking, does not seem to be a sufficient reason. If it appeared that he prompted or suggested, or that he in any positive manner influenced the witness or the officer, it might be different. But we cannot suppose that his mere presence, had so strong an influence as to affect the testimony; and the previous matter resolves itself into acquaintance and intimacy, and would form an equal objection to all depositions where the attorney of a party and the witness, held the same social or convivial relations. Until something specific is shown, we must presume the witness capable of taking care of himself, and of speaking the truth equally with others. We do not think sufficient is shown to warrant the objection to the deposition. And another reason exists *95 for the same conclusion. The deposition is not among the papers of the case, and it does not appear that it contained material testimony affecting the case, so that the party making this motion, does not show that he has received detriment from it.

The next alleged error arises upon the refusal of certain instructions asked by the defendant. The first of these was: That plaintiff, in order to recover, must show that he owned the horses at the time of the levy, and must farther show that the defendant converted the horses, or the proceeds thereof, to his own use. To this instruction, the court has added this note: “Nefused, because a conversion of the horses or proceeds, so as to deprive the plaintiff of them, would be sufficient, if the jury are satisfied that he was the owner, and entitled to the possession.” The instruction thus requested, would seem to be plain, and the refusal of the court not very intelligible, without the aid of some other portions of the case. Thus the above first instruction, in its meaning and intent, is explained by the second, which requested the court to instruct that a sale made by the sheriff upon an attachment, and a return of the proceeds into the office of the clerk of the court, is not a conversion to his own use. Erom this it appears, that the gist of the first one was, that he must convert to Ms own use. This is the only construction that gives meaning to the explanation of the court, and this we must take to be the understanding of the court and the parties on the trial, and under this view there was no error.

The defendant also assigns as error, the refusal of the court to give the third instruction asked by him. To understand this, some farther facts are necessary to be stated. Testimony was introduced, tending to show that Nutter was in the employment of the owner, or owners, of a circus; that he bought the horse, Young Alick, from one Ilorton; that when he paid the first hundred dollars of the purchase money, he went to the clerk of the circus *96 and obtained it; and that when he paid the balance, one hundred and forty-five dollars some time after, he did it by giving Horton an order on the same clerk. The defendant claims that he bought the horse for, and was agent of, the circus company. The defendant now requested the court to instruct, “that if the jury believe that at the time of the sale of the spot-horse, (or Young Alick,) by Horton, Nutter went with Horton to the clerk of the circus, and obtained from the clei’k one hundred dollars, and handed it ovei to Horton, as part of the purchase money; and if the jury farther believe, that at Milwaukie, the said Horton got the balance, one hundred and forty-five dollars, on Nutter’s order through the same clerk, these are such circumstances as to warrant the jury in treating the sale as a sale to the owner, or owners, of the circus, and not as a sale to Nutter.” The court declined giving this instruction, and in so doing were correct, as we think. The giving it would have approached too nearly to an intimation of an opinion on the testimony —so near, at least, that the refusal of it cannot be regarded as an error. The court was correct in leaving this to the jury, with the residue of the evidence. Had the order on the clerk shown that the transaction was one belonging to the owners of the circus, it is probable the defendant would have caused it to be produced.

Error is also assigned upon the circumstance that the court permitted the jury, and Horton, the witness, to go out and see the horse in the courthouse yard. Horton was the person supposed to have sold the horse to Nutter, a year and a half before; and the question was, whether this was the same one. ¥e see no impropriety in the proceeding. It is not pretended that the witness and jury spoke together, nor that any improper circumstance occurred. There is no objection, in principle, to a jury seeing an object which is the subject of testimony. Py this means, they may obtain clearer views, and be able to form a better opinion. Small articles, the subject of testimony, are not unfrequently introduced to the in *97 spection of the jury, and no reason forbids tbe same course in relation to larger ones, other than the practicability and convenience of so doing. The practice lies in the discretion of the court.

Finally, the defendant assigns as error, the overruling his motion to set aside the verdict, and for a new trial. A portion of the grounds of this motion, consisted in the refusal of instructions which have been noticed above, and in the other alleged error which have been considered; other grounds assigned are, that the verdict is excessive ; and that it is contrary to the evidence, and against the weight of the evidence. The whole of the testimony not having been brought to this court, as was intended by the defendant, the objections arising from the finding of the jury, cannot be considered. This disposes of all the exceptions talcen, which can be reached, and we find no error herein. The judgment of the district court will be affirmed.

Judgment affirmed.