HARRY WILSON, Sometimes Known as A. C. WILSON, Appellant,
CHARLES O. WIGGINS, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. Larry Meloy, for Appellant.
Messrs. Minne & Sorenson and Mr. George T. Wilson, for Appellee.
[54 Ariz. 241] ROSS, C.J.
This is an action by Charles O. Wiggins against Harry Wilson for money had and received. It was tried with a jury and resulted in a verdict and judgment for plaintiff. The defendant appeals. The ground of his appeal is claimed error by the court in not granting his motion for a new trial. The verdict was signed by nine jurors. The other three did not sign. Judgment was rendered July 1, 1938. Thereafter defendant filed his motion to set the verdict and judgment aside and to grant him a new trial on the following grounds:
"I. Irregularity in the proceedings of the jury whereby the moving party, to-wit, the defendant was deprived of a fair trial.
"Irregularity in the proceedings of the selection of the jurors on voir dire examination as to their qualifications to act as trial jurors, whereby the moving party, to-wit, the defendant was deprived of a fair trial.
"II. Misconduct of the jury."
This language of the motion is rather indefinite as it fails to indicate what irregularity occurred in the selection of the jury. However, we learn the point wished to be made is that juror H. S. Gibbs on his voir dire gave false answers to questions as to his qualification to sit in the case as a juror.
The right to trial by jury is provided for by the Constitution, in section 23, article 2, and that means an impartial jury. The law gives each party to a civil action four peremptory challenges and an unlimited number for cause. Secs. 1924, 1925, Revised Code of 1928. The purpose is to secure a fair and [54 Ariz. 242] impartial jury. That the parties may intelligently exercise these rights of challenge, they are privileged to examine prospective jurors as to their qualifications, and their answers must necessarily be accepted as true unless the questioner knows, or has reason to believe, them to be false.
In this case, the affidavits supporting the motion for a new trial state the court asked the jurors as a panel if any of them knew the defendant Wilson, and that juror Gibbs remained silent and did not make any answer; that neither the defendant nor his attorney knew such juror, or that such juror knew them, and had no reason to believe the juror knew defendant until after the return of the verdict; that after the return of the verdict, the three dissentient jurors came to defendant and his attorney and told them that Gibbs had stated in the jury room, before a verdict was reached, that he knew defendant
"as a bootlegger and a gambler and he wouldn't believe his word on oath, or words to that effect."
The affidavits of four jurors were filed in support of the motion, and they fully corroborated the principal affidavits made ...