#### Pleasants vs. Heard.

A 'general verdict of guilty, in an action of trespass for assault and battery, is good upon issues to the pleas of not guüty and son .assault demesne.

The decision of the court below, refusing- to grant a new trial, upon the grounds that the verdict is contrary to evidence and the damages excessive, will not be disturbed, where there is no total want of evidence to sustain any material allegation in the ■declaration, and the amount of damages, upon all the facts of the case, does not shock one’s sense of justice.

The affidavit of a juror, after verdict rendered, is inadmissible to impeach and set aside the verdict rendered by him, upon his solemn oath, upon the ground that he, with the other jurors, had acted illegally and improperly in the mode adopted by them in agreeing upon the amount of damages nor can the admissions and statements of a juror be received for such purpose.

*404 Appeal from the Oi/rcudt Oowt of Ora/wford County,.

Hon. Beaufoet H. Neely, Circuit Judge, presiding-

CueeaN, for tbe appellant.

Puns & CUMMINS, for tbe appellee,

contended’ that tbe jury might well have resorted to tbe mode here adopted of ascertaining tbe amount of tbe plaintiff’s damages, or to any other mode they might think proper, by way of compromising conflicting' opinions, in a case, like this, sounding in damages. That neither tbe affidavit of a juror, nor bis statements to others, is admissible in evidence to prove facts impeaching bis own verdict. Dana vs. Tuckem, U. S. 487/ Meade vs. Smith, 16 Gorm. Sep. 846/ Bennett vs. BaTc&r, 1 Ewmph. 399 / Willing vs. 'Swasey, 1 Browne 123 / Olamle vs. Bead,, 2 South. 486 / Vadse vs. Delrnae, 1 T. S. 11/ Owm et dl. vs. Wa/rbwrton, 4 Bos. c& Sul. 326/ Lessee of Sl/uggage vs. Swan, 4 Bi/im. 150/ Price Ex. vs. Wa/rrm,l Em. <& Mumf. 385. That tbe verdict is responsive to tbe issues Dyer vs.. Batch, 1 Arle. 339 / Wilson vs. BusJmell, 1 Arle. 465-

Wr. Chief Justice English

delivered tbe opinion of tbe Court.

"William B. Heard brought an action of trespass, in tbe Crawford Circuit Court, against Joseph C. Pleasants, for an assault and battery upon bis person. Hie defendant pleaded not guilty, and son assault demesne. Issues were made up to these pleas, and submitted to a jury, who returned a verdict of guilty, assessing, tbe plaintiff’s damages at sis hundred and twenty dollars. A motion for a new trial was made by tbe defendant, overruled, a bill of exceptions’ taken setting out tbe facts, and an appeal to-this court.

Tbe first and second grounds urged in tbe motion for a new' trial, present tbe question whether tbe general verdict of guilty was responsive to tbe issues submitted to tbe jury.

*405Hie issues were to tbe pleas of not guilty, and son assault demesne. Tbe jury returned tbeir verdict as follows: "‘"We, tbe jury,-find tbe within named defendant,-Joseph C. Pleasants, guilty in manner and form as charged in tbe within declaration,, and we do assess tbe plaintiff’s damage to six hundred and twenty dollars. ”

A general verdict is held to be good on two issues, where tbe finding necessarily shows that tbe subject matter of both issues-was determined. Wilson vs. Bushnell, 1 Ark. R. 471; Dyer vs. Hatch, ib. 346; Woolford et. al vs. Isbel, 1 Bibb 247.

Tbe plea of son assault demesne, is a special plea of justification. It confesses tbe battery alleged, but avoids and justifies it on tbe grounds of self-defence. Tbe verdict, that the defendant' is guilty in manner and form as alleged in tbe declaration, necessarily negatives the justification set up by such plea..

Tbe third and fourth grounds urged in tbe motion for a new trial, are, that the verdict is contrary to tbe evidence; and that tbe damages assessed are excessive and unreasonable,

Tbe testimony upon tbe tidal, as set out in tbe bill«of exceptions,is, in substance, as follows:

Penm/wit, tbe first witness for the 'plaintiff, testified that bo-bad been in company with the plaintiff, on tbe bank of tbe Arkansas river, and they were walking across the-street (of Yan Bu-rén,) when they were met by tbe defendant, who spoke to tbe plaintiff, saying be wished to see Mm. Plaintiff and defendant walked off to one side, and witness continued on bis way. The parties conversed together a short time, when witness beard a noise, which attracted bis attention, and, on looking around, be saw tbe defendant striking at plaintiff with bis fist;- plaintiff, in tbe mean time, was retreating in tbe direction of tbe place where tbe witness was standing, and defendant, pursuing him. About tbe time plaintiff reached tbe opposite side of the street, near where witness was standing, be fell, but whether be stumbled, or was knocked down by the defendant, witness was unable to say. Defendant jumped on plaintiff as soon as he fell, *406and was in the act of beating Mm, when several persons inter-ferred, and separated them. Plaintiff was a small man, in bad health at the time, and very weak — 'defendant, a large, robust and athletic person. Plaintiff seemed to be badly hurt, and bled profusely from a wound inflicted above one of his eyes. Witness did not see the commencement of the difficulty, because he was not looking at the parties when the fight commenced.

This statement is corroborated by several other witnesses.

Dr. Brown testified that he was called upon to dress the plaintiff’s wound — the wound above one of his eyes, was a small one; but it occasioned the eye and the side of the face t#o swell very much. Both eyes became inflamed in consequence of the injury, and the plaintiff suffered a great deal. The bill of witness against plaintiff did not exceed $20.

One witness for the plaintiff testified to declarations of defendant made previous to the difficulty, in wMch he complained that the plaintiff had treated Min badly about the purchase of some lots.

Two witnesses were introduced, by the defendant. They do not contradict the statements made by the plaintiff’s witnesses, but they testify that, before defendant struck the plaintiff, they saw the plaintiff draw back Ms clenched fist, as though he were going to strike the defendant.

All the witnesses concur in the fact, that plaintiff retreated, from the time defendant first struck at him; that defendant pursued him; and that plaintiff appeared to be pretty badly hurt.

Upon the testimony introduced by the parties, without instructions from the court, the jury, in the exercise of their peculiar province of passing upon the weight of the evidence, found the defendant guilty of a trespass upon the person of the plaintiff, and assessed the damages at six hundred and twenty dollars. There is no total want of evidence to sustain any material allegation in the declaration, and there is nothing in the verdict, as to the amount of damages, upon all the facts of the case, that shocks our sense of justice.

*407Tbe decision, of tbe court below therefore, refusing to grant a new trial, upon tbe grounds above stated, will not be disturbed.

Tbe fifth, last, and most important cause, assigned in tbe motion for a new trial, is, that tbe jury, in assessing tbe damages, acted illegally and improperly, in this: that they agreed that each juror should set down in figures, tbe amount of damages be should be in favor of assessing, and that tbe aggregate of all tbe sums should be divided by twelve, and tbe quotient fixed upon as tbe damages; and that, in pursuance of sueh previous agreement, tbe jurors proceeded each to set down tbe amount be was in favor of assessing, and, after- all tbe jurors had thus set down tbe several amounts, they were added up, and tbe product divided by twelve, which gave tbe sum of $620, which was accordingly taken and inserted in tbe verdict of the jury.

In support of this feature of tbe motion for a new trial, several affidavits were made' and filed, which are in substance as follows:

William Wall&er, Esq., one of tbe defendant’s counsel, made an affidavit to tbe effect, that, immediately after tbe verdict was rendered by tbe jury, he was advised by bis colleague, Mr. Green, that Green B. Strawn, one of tbe jmors,- informed him that tbe damages had been assessed or fixed upon by the jury, in tbe manner set forth above. That affiant then visited tbe jury room, and found a copy of tbe acts of the General Assembly, upon tbe back of which be found a column of figures in pencil, which was added up, showing tbe amount of all tbe sums to be $7,450, which was divided by twelve, making tbe product $620; and that af-fiant exhibited said pencil marks to Hardin Eainey, one of tbe jurors, and, on enquiry of him, whether the damages assessed in the case had been fixed upon as above stated, he answered in tbe affirmative, and said that tbe calculation in pencil, on the back of said acts, was tbe one made by tbe jury. •

The affidavit of Green B. /Strcmn, one of the jurors, states, that, in assessing tbe damages, the jury agreed that each juror should state the. amount he was in favor of assessing, that tbe several amounts should be added up, and the product divided by the *408number of jurors, and that tbe quotient should be taken as tbe damages to be assessed in favor of tbe plaintiff; and that, in pursuance of said agreement, each juror stated tbe amount be was in favor of, wbicb was set down, and tbe whole added up, which amounted to the sum of $7,450, which, being divided by twelve, produced the sum of $620, which was taken and inserted in the verdict as the damages assessed by the jury. That the figures in pencil, made on a copy of the acts of the General Assembly, shown to affiant by ¥m. Walker, Esq., were the same made by Pickett or Wilcox, one of the jury, in setting down the several .sums, adding them up, and dividing the product as above stated. ”

It is stated, in the bill of exceptions, that a like affidavit was made by Eainey, another of the jurors, but no such affidavit appears in the transcript.

On the hearing of the motion for new trial, it seems that the ■copy of the acts, above referred to, was produced in court, and the figures admitted to have been made by Pickett, one of the jurors. They are copied in the bill of exceptions. The twelve •sums put down in a column, are 200, 2000, 500,1000,1000,1000, 500, 500, 50,150, 500, 150 — added up 7,450, and the product divided by twelve, making 620, with 10 remainder.

On the motion for a new trial, the affidavit of the juror Stra/wn, was produced with the view to impeach and set aside the verdict rendered by him, upon bis solemn oath, on the ground that he, with the other jurors, had acted illegally and improperly in the mode adopted by them of agreeing upon the amount of damages. Oaxr the affidavit of a juror bo received and considered for such purpose. ?

In the case of Stanton vs. The State, (13 Ark. R. 319,) which was an indictment for murder, a motion for a new trial was made by the prisoner, on the ground that one of tbe jury, while in the charge of the officer, and deliberating upon their verdict, absented himself from the jury room — which was sustained by the .affidavit of one of the jurors; that another juror, named, absen*409■ted himself from tbe room, provided for tbe jury at tbe hotel, without being in custody of the officer, who had charge of the jury; that the officer, being notified of his absence, went in search of him, but came back without him; that the juror continued absent for about two hours, and did not return to the room until near daylight. To rebut this, the attorney for the State filed the affidavit of the juror, whose conduct had been •thus impeached, explaining the cause -of his leaving the jury .room, and stating that, during his absence, he did not see or con. verse with any one. Mr. Chief Justice WatKXNS in delivering the opinion of this ¡court, in that ¡case,' said: It appears that the attorney for the State excepted to the opinion of the court, in allowing the first affidavit to be filed on behalf of the prisoner, and certainly the mode here resorted to -of impeaching the verdict by the affidavit of -one of the jurors who concurred in rendering the verdict, is subject to many serious objections. But -apart from that, and waiving any enquiry whether the affidavit on its face is sufficient to raise a presumption that the absent juror was exposed to improper influences, any such presumption is fully rebutted, and the absence explained by the .affidavit of the juror himself. ”

This opinion would seem to clisapprobate the receiving of the affidavit of a juror to impeach the verdict which he had con-icurred in rendering, but to admit of affidavits of jurors to uphold the verdict. In the case of Cornelius vs. The State, (7 Eng. 810,) the affidavits filed to impeach the verdict, were not made 'by members of the jury, but by other -persons, and in that case, .also, the affidavits of jurors were allowed to uphold the verdict.

In the case of Owen et al. vs. Warburton, (4 Bosanquet & Puller’s Rep. 326,) it appeared, from an affidavit made by one of the jurors, that the jury disagreeing as to whether their verdict should be for the plaintiff or defendant, decided the matter by lot; and on this affidavit, a motion was made to set aside the verdict. Lord MaNSKdeld said, “ "We have conversed with the other judges upon this subject, and we are all of opinion that the *410affidavit of a juryman cannot be received. It is singular, indeed,, tbat almost the only evidence, of which the case admits, should be shut out; but considering the arts which might be used, if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood-tobe the law, that a juryman might set aside a verdict by such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to. bring over his companions to his opinion, might propose a decision by lot, with the view afterwards to-set aside the verdict by his own affidavit, if the decision should, be against him.”

Lord IVCaNSjteld observed,, in the same case, that the authorities on the subject, were contradictory, and that it was proper to settle the question, and it was settled as above.

In Kentucky, it seems to be well settled that the affidavits of jurors, to prove such misconduct of the jury as will invalidate their verdict, or to question the purity of their motives, or to explain either the law or the facts which influenced them, with.the view to impeach their verdict, are not admissible. But, that suclx affidavits are admissible in' cases of mistake, &c., which do not subject the jury to any imputation of impure motives or palpable impropriety of conduct, See Taylor vs. Giger, 1 Hardin Rep. 536; Heath vs. Conway, 1 Bibb 398; Doran vs. Shaw, 3 Monroe 411; Steels's heirs vs. Logan, 3 A. K. Marshall 394; Johnson vs Davenport, 3 J. J. Marshall 390; Cain vs. Cain et al., 1 B. Monroe 213.

In Dana vs. Tucker, (4 Johnson Rep. 487,) affidavits of two of the jurors were read to impeach the verdict on ground similar to that which is urged against the validity of the verdict in this case,, and the court held such affidavits not to be admissible-

In Clum vs. Smith, (5 Hill's Rep. 560,) it was decided that affidavits of jurors could not be received to impeach the verdict for mistake or even in respect to the merits,.nor to prove irregularities or misconduct, either on their-own part, or that of their fellows.

*411In Connecticut, it seems that it has been adopted, as a universal rule, that where it is sought to to set' aside a verdict for the mistake or misconduct of the jurors, those jurors are mot competent witnesses to prove such mistake or misconduct. The State vs. Freeman, 5 Conn. R. 348; Meade vs. Smith, 16 ib. 356.

See, also, Willing vs. Swasey, 1 Browne (Pen. Rep.) 123; Price's ex. vs. Warren ad., 1 Hen. & Munf. 385; Shobe vs. Bell, 1 Randolph Rep. 59; which have a bearing upon the cjuestion before us.

See, also, on the same subject, the following authorities : Barlow vs. State, 2 Blackf. 114; Cluggage vs. Swan, 4 Binn. 150; Sehank vs. Stephenson, 1 Penn. Rep. 587; and numerous other cases collected in the 2 vol. United States Digest, under the title Jurors.

Though there are some conflicting cases, we think it may safely be decided, upon authority, and for many good reasons, that the affidavit of the juror Strcmn, was not admissible, in this case, to impeach the verdict rendered by him, for the cause stated in the affidavit. But we .are not to be understood as .deciding, that the .affidavit of a juror may, in no case and for no cause, be received to impeach a verdict rendered by him. We mean only to de-aide the case now before us.

Mr. Walher, in his affidavit, does not profess to have any personal knowledge of the manner in which the jury agreed upon the .amount of damages assessed by them; but simply states the admissions made by the .juror Strcmn, to his associate counsel, Mr. Green, and the admissions made by the jxxrox, Rainey, to him, after the verdict was rendered.

Every reason of public policy, which would render it improper to permit a juror to impeach his own verdict, for the misconduct of himself, or his fellows, by affidavit, would apply, with increased force, to admissions or declarations made by him out of doors, after rendering the verdict. To allow such admissions or declarations to be proven by others, for the purpose of invalidating verdicts, It seems 'to us would open a wide *412door, and temptation to tbe commission of frauds. The authorities are also against it. Burgess vs. Langley, 5 Manning & Granger, 721 (44 Eng. Com. Law Rep. 377;) Clum vs. Smith, 5 Hill's Rep. 560; Cain vs. Cain et al., 1 B. Monroe 213; Aylett vs. Jewel, 2 Blackst. Rep. 1299.

Disregarding the affidavit of the juror Strawn, and the admissions made by him, and the juror Bwiney, after the verdict, to» Walker and Green, and there is no legal evidence before us as to the manner in- which the jury arrived at an agreement upon the amount of damages assessed by them. It therefore becomes unnecessary for us to decide whether a verdict agreed upon in the manner stated in- the affidavits in question, should be set aside or-not. The authorities on this subject are in conflict.

The decision of the court below, refusing a new trial, is sustained, and the judgment affirmed.