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Opinion of the Court.

appellant is entitled to a reversal. But clearly this is untenable. The statement of facts is plain, to the effect that the survey was inaccurate and obtained by fraud. The force of this is not obviated by the fact that Griffin, the surveyor, was not found to have been a party to the fraud. The wrong is the wrong of the patentee; and the fact, if it be a fact, that he did not secure the wrongful assistance of all the officers of the government connected with the survey, does not make his wrong any the less. It may be, as Chief Justice Long intimates, that Griffin, the surveyor, was innocent; that he was misled by the misrepresentations and fraudulent acts of others; but if it be, as found by this statement of facts, that the survey was erroneous, that it and the patent were obtained by fraud, and that the patentee was a party to such fraud, that is enough to sustain a decree setting aside the survey and the patent, and leaving the defendant to whatever rights may exist under the original confirmation.

Finally, it is insisted that the defendant was a bona fide purchaser; but the findings of fact do not warrant this conclusion. The president of the company, and a large stockholder, together with others interested, visited the property before the purchase. They were warned of the adverse claims. They examined the land and could easily perceive the situation of some of the points named in the description, and also the presence within the limits of the patent of this town of San Francisco. Indeed, it is distinctly stated in the findings that “the said defendant, through its said company, had notice, in fact, by the means aforesaid, of the adverse claim to said grant, and in addition thereto information sufficient to put it on inquiry as to the fraud alleged in the bill of complaint.”

Undoubtedly, upon the facts as found and stated by the court, the defendant was not entitled to hold as a bona fide purchaser.

These are all the matters complained of, and in them finding no error, the decree of the Supreme Court of the Territory is

Affirmed.

Syllabus.

CLYDE MATTOX v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE

DISTRICT OF KANSAS.

No. 1008. Submitted October 31, 1892. – Decided November 14, 1892.

When the trial court excludes affidavits offered in support of a motion for

a new trial, and due exception is taken, and that court, in passing upon the motion exercises no discretion in respect of the matters stated in the aftidavits, the question of the admissibility of the affidavits is preserved for the consideration of this court on a writ of error, notwithstanding the general rule that the allowance or refusal of a new trial rests in the sound discretion of the court to which the application is

addressed. In determining what may or may not be established by the testimony of

jurors to set aside a verdict, public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow it; but evidence of an overt act, open to the knowledge of all the

jury, may be so received. Perry v. Bailey, 12 Kansas, 539, approved and followed. On a motion for a new trial on the ground of bias on the part of one of the

jurors, the evidence of jurors as to the motives and influences which affected their deliberations is inadmissible either to impeach or support the verdict; but a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated on his mind; and he may also testify in denial or explanation of acts or declarations outside of the jury room,

where evidence of such acts has been given as ground for a new trial. Woodward v. Leavitt, 107 Mass. 453, approved and followed. The jury in this case, (an indictment for murder,) retired October 7, to

consider their verdict. On the morning of October 8, they had not agreed on their verdict. A newspaper article was then read to them, the tendency of which was injurious to the accused. They returned a verdict of guilty. Affidavits of jurors of this fact were offered in support of a motion for a new trial, and were rejected. Held, that this was

reversible error. Dying declarations are admissible on a trial for murder as to the fact of

the homicide and the person by whom it was committed, in favor of the

defendant. In this case, a few hours after the commission of the act, and while the

wounded man was perfectly conscious, the attending physician informed him that the chances were all against him, and that there was no show for him. He was then asked who did the shooting. He replied that he did

Statement of the Case.

not know. The evidence of this was received without objection. Defendant's counsel then asked whether in addition to saying that he did not know who shot him, he did not say further that he knew the accused and knew that it was not he. This was objected to on the ground of incompetency, and the objection sustained. Held, that this was error.

This was an indictment charging Clyde Mattox with the murder of one John Mullen, about December 12, 1889, in that part of the Indian Territory made part of the United States judicial district of Kansas by section two of the act of Congress of January 6, 1883, (22 Stat. 400, c. 13,) entitled “An act to provide for holding a term of the District Court of the United States at Wichita, Kansas, and for other purposes.”

Defendant pleaded not guilty, was put upon bis trial, October 5, 1891, and on the eighth of that month was found guilty as charged, the jury having retired on the seventh to consider of their verdict. Motions for a new trial and in arrest of judgment were severally made and overruled, and Mattox sentenced to death. This writ of error was thereupon sued out.

The evidence tended to show that Mullen was shot in the evening between eight and nine o'clock, and that he died about one or two o'clock in the afternoon of the next day; that three shots were fired and three wounds inflicted; that neither of the wounds was necessarily fatal, but that the deceased died of pneumonia produced by one of them described as“ in the upper lobe of the right lung, entering about two or three inches above the right nipple, passing through the upper lobe of the right lung, fracturing one end of the fourth rib, passing through and lodging beneath the skin on the right side beneath the shoulder blade.” The attending physician, who was called a little after nine o'clock and remained with the wounded man until about one o'clock in the morning, and visited him again between eight and nine o'clock, testified that Mrs. Hatch, the mother of Clyde Mattox, was present at that visit; that he regarded Mullen's recovery as hopeless; that Mullen, being “perfectly conscious” and “in a normal condition as regards his mind,” asked his opinion, and the doctor said to him: “The chances are all against you; I do not think

Statement of the Case.

there is any show for you at all.” The physician further testified, without objection, that, after he bad informed Mullen as to his physical condition, he asked him as to who shot him, and he replied, “ he didn't have any knowledge of who shot him. I interrogated him about three times in regard to that

who did the shooting — and he didn't know.” Counsel for defendant, after a colloquy with the court, propounded the following question: "Did or did not John Mullen, in your presence and at that time, say in reply to a question of Mrs. Hatch, 'I know your son, Clyde Mattox, and he did not shoot me; I saw the parties who shot me and Clyde was not one of them.” This question was objected to as incompetent, the objection sustained, and defendant excepted. Counsel also propounded to Mrs. Hatch this question : “ Did or did not John Mullen say to you on the morning you visited him, and after Dr. Graham had told him that all the chances for life were against him, 'I know Clyde Mattox, your son, and he was not one of the parties who shot me?” This was objected to on the ground of incompetency, the objection sustained, and defendant excepted.

In support of his motion for new trial the defendant offered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted, “and while they were deliberating of their verdict,” “ in the presence and hearing of the jurors or a part of them, speaking of the case, said : ‘After you fellows get through with this case it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him.' And at another time, in the presence and hearing of said jury or a part of them, referring to the defendant, Clyde Mattox said: “This is the third fellow he has killed.'” The affidavit of another juror to the same effect in respect of the remark of the bailiff as to Thompson was also offered, and in addition, the affidavits of eight of the jurors, including the three just mentioned, “that after said cause had been submitted to the jury, and while the jury were deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the city of

Statement of the Case.

Wichita, Kansas, known as The Wichita Daily Eagle, of the date of Thursday morning, October 8, 1891, was introduced into the jury room ; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under consideration by said jury, was read to the jury in their presence and hearing ; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows:

* * The Mattox case The jury retired at noon yesterday and is still out.

“The destiny of Clyde Mattox is now in the hands of the twelve citizens of Kansas composing the jury in this case. If he is not found guilty of murder he will be a lucky man, for the evidence against him was very strong, or at least appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before they would return a verdict. The hour passed and nine more of them with it, and still a verdict was not reached by 10.30 last night, when the jury adjourned and went to their rooms at the Carey. Col. Johnson, of Oklahoma City, defended him, and made an excellent speech in his behalf to the jury. Mr. Ady also made a fine speech and one that was full of argument and replete with the details of the crime committed as gathered from the statements of witnesses. The lawyers who were present and the court officers also agree that it was one of the best and most logical speeches Mr. Ady ever made in this court. It was so strong that the friends of Mattox gave up all hope of any result but conviction. Judge Riner's instructions to the jury were very clear and impartial, and required nearly half an hour for him to read them. When the jury filed out, Mattox seemed to be the most unconcerned man in the room. His mother was very pale and her face indicated that she had but very little hope. She is certainly deserving of a good deal of credit for she has stuck by her son, as only a mother can, through all his trials and difficulties, and this is not the first one by any

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