Christian v. Tucker

Christian v. Tucker. Evidence — not pertinent to the issue. If evidence not pertinent to the issue is given to the jury, the court may upon motion withdraw it. Instructions — not applicable to the evidence. Instructions, which cannot he applied to the evidence, should not he given to the jury. Appeal from District Court, Arapahoe County. At the trial Thomas Maxwell testified that the plaintiff worked for defendant, at $45 per month, from November 10, 1865, to January 8, 1866. William Thompson testified to the same facts, whereupon plaintiff rested. The defendant then called John Wanless, who testified as follows: “I know the defendant Christian; his wagon-master was arrested about the time testified to by the other witnesses; Tucker, the plaintiff, was arrested in December ; he was arrested on the report of the wagon-master of Christian; wagon-master said two men in the train had started the report about the Indians ; wagon-master told me who they were, but I do -not think he told their names ; he admitted he knew the report about Indians was false; I do not know who started the report.” The defendant asked said witness : “ Do you know any thing further with regard to Tucker’s connection with this report that caused the arrest?” The plaintiff objected to this question; the court sustained the objection ; to- which ruling of the court the defendant excepted. Plaintiff moved to strike out tke evidence of Wanless, wkick motion was sustained. Tke defendant asked tke court to give to tke jury tke following instructions: “ 1st. If tke jury believe from all tke evidence tkat tke plaintiff in tkis case, wkile in tke employment of Ckristian, conducted kimself in suck an improper manner in tke disckarge of kis duties tkat Ckristian sustained damages on account thereof, these damages are a valid and good set-off against tke demand of Tucker. 2d. A greater degree of caution and prudence was necessary on tke part of Tucker in tke discharge of kis duties in suck times and places as appear in tke evidence in tkis case, than in ordinary times and places.” And tke instructions were not given. Messrs. Miller & Markham, for appellant. Mr. Gr. W. Purkins, for appellee. [MAJORITY — Hallett, C. J.] Hallett, C. J. Tke appellee sued tke appellant before a justice of tke peace, to recover tke value of services by him rendered in driving a team for tke appellant, and obtained a judgment for |87. Tke appellant appealed to tke district court, in wkick another trial was had, resulting in a judgment in favor of tke appellee for tke same sum. We kave reviewed the proceedings of tke district court in tkis cause, and we find no error therein. Tke evidence of Wanless was not pertinent to tke issue, and tke cqurt very properly withdrew it from tke consideration of tke jury. Tke question proposed to Wanless assumed tke existence of a fact not shown by tke testimony previously introduced, and, if tkis were not so, we fail to discover any connection between tke subject-matter of tke inquiry and tke issue, wkick was being tried. Tke instructions asked by tke appellant could not kave been applied to tke evidence given to tke jury, and tke court rightly rejected them. Tke judgment of tke district court is affirmed, with costs. Affirmed.