Tucker

The defendant has been convicted of extortion, and appeals from the judgment and order denying his motion for a new trial. A demurrer was filed attacking the sufficiency of the indictment. This demurrer was properly overruled.

Among the grounds relied upon for a new trial, it is claimed that one of the jurors was intoxicated during the progress of the trial. Upon the showing made by the affidavits introduced at the hearing of the motion, the court was entirely justified in holding against defendant’s contention upon this matter. Upon the hearing of the motion defendant’s counsel proposed to establish the fact of the juror’s intoxication by oral evidence before the court, claiming that he was unable to procure the affidavits of witnesses. The court ruled that he should make this showing by affidavit, and not by oral evidence. It is not necessary for this court to pass upon the legality of a procedure allowing oral evidence to be presented upon the hearing of a motion similar to the one at bar. The usual and ordinary course is to proceed by affidavits, but, conceding such practice not legally exclusive, then the whole question becomes one of those matters resting in the discretion…