
    Repath et al. v. Walker et al.
    New Trial —Misconduct of Judge and Jury. — Where the record on appeal shows by uncontradlcted affidavits that the jurjo during the time they were supposed to be deliberating, were seen on the streets, one of the jurors being intoxicated, and that the trial judge was intoxicated on the trial, and at the time of overruling a motion for new trial, based on the jury’s misconduct, the judgment will be reversed.
    
      Appeal from Hinsdale Comity Court.
    
    Messrs. J. W. Mills and Markham & Dillon, for appellants.
    Messrs. G. W. & L. I. Henry, for appellees.
   Richmond, C.

This cause was tried by a jury in the county court of Hinsdale county, on appeal from a justice of the peace, and verdict rendered for the sum of 8106.95 in favor of plaintiffs, Walker & Greenfield. Motion for a new trial by defendants, Henry and Eliza Repath, overruled, and judgment entered. Twenty-four errors are assigned, but we do not think it necessary, for the purposes of determining this appeal, to consider any of the questions of law presented by the assignment of errors. The record discloses the fact to be that the jury, during the time they- were deliberating or supposed to be deliberating upon their verdict, were seen on the streets of Lake City, and one of the jurors, it appears, was in a state of intoxication. It also appears from affidavits that the judge trying the cause was, during the disposition of the same, and at the time of ruling upon the motion for a new trial, intoxicated.

The burden of the appellants’ argument is directed to the conduct of the judge during the trial, and his condition at the time the cause was pending before him. Several affidavits appear in the record, establishing the assertions of intoxication of the judge, and one affidavit the intoxication of one of the jurors. Those affidavits are uncontradicted.

One of the great and essential characteristics, as well as privileges, of the law is that litigants shall have a fair and impartial trial; and while it has been determined by this court in Jones v. People, 6 Colo. 452, that a moderate use of liquor by a juror is not ground for the reversal of a judgment, it is clearly true that it can be assumed, from the language of the opinion in that case, that the intoxication of a juror while deliberating upon a verdict is sufficient to affect his deliberation or judgment; and such seems to be the conclusion of the court in the case of Wilson v. Abrahams, 1 Hill, 207, wherein the court uses this language: “I cannot think it sufficient'ground for setting aside the verdict, unless there is some reason to suppose that the juror drank to excess, or at the expense or on the invitation of one of the parties.” If the intoxication of a juror during the time he is deliberating upon his verdict be sufficient ground upon which to base a reversal of the judgment of a lower court, how much more so should the intoxication of a judge, during the disposition of a case, be ground for the conclusion that a fair and impartial trial was not accorded to the appellant in the court below.

The ground for a motion for a new trial was the misconduct of the jury, based upon the affidavit of the marshal of the town of Lake City, to the effect that the jury were permitted to separate and roam at large about the town, and that one of the jurors, while so walking the streets, was under the influence of intoxicating drink. Such an allegation, uncontradicted, was sufficient to justify the court below in setting aside the verdict and granting a new trial; but how can it be said that a judge is competent to pass upon questions of this nature when he himself, holding a court, is in a similar, if not worse, condition than it is alleged the juror was during the deliberation upon the verdict? As the purpose of every judicial inquiry is the ascertainment of truth and the dealing out of even-handed justice, such inquiry presupposes in a court a calm, thorough and strictly impartial investigation; and in order that such a result should follow, it occurs to us that sobriety on the part of the judge while determining the interests of litigants is essentially requisite. It would be better to submit questions in dispute to the arbitration of chance than to the decision of a tribunal which is not thoroughly upright and scrupulously fair as between litigants; and can it be said that an upright judge, a scrupulously fair man, one who appreciates the dignity of his office, can impartially determine the interests of litigants, and fairly administer the law, when in a state of intoxication? Such conduct on the part'of a judge is not only reprehensible, but is indeed criminal.

This cause, in our judgment, should be reversed on the ground solely of our belief that a fair and impartial trial was not had by the defendant below, owing to the misconduct of the juror as well as of the judge.

We concur: Pattison, C.; Reed, C.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment is reversed.

Reversed.  