Commonwealth v. Carrington

116 Mass. 37, 1874 Mass. LEXIS 13

• Court: Massachusetts Supreme Judicial Court
• Decided: October 23, 1874
• Status: Published

Opinion

Gray, C. J.

This bill of exceptions presents the question whether in a criminal case, not capital, the jury may be authorized by the court, without the consent of the defendant, to separate after agreeing upon, signing and sealing up a paper in the form of a verdict, and afterwards return a verdict in open court in accordance with the result so stated and sealed up.

The tendency of modern decisions has been to relax the strictness of the ancient practice which required jurors to be kept together from the time they were empanelled until they returned their verdict or were finally discharged by the court.

In civil cases, the jury are never kept together at the intermissions of the sittings of the court pending the trial; and it is well settled that, after the case is finally committed to them, they may be allowed by the court to separate, if they first agree upon and seal up their verdict, and afterwards affirm it in open court; and that if their verdict, when opened, does not cover all the issues upon which they are to pass, the case may be recommitted to them and a verdict subsequently rendered will be good. Winslow v. Draper, 8 Pick. 170. Pritchard v. Hennessey, 1 Gray, 294. Chapman v. Coffin, 14 Gray, 454. But if, upon returning into court, one of the jurors dissents from the verdict to which all had agreed out of court, it cannot be recorded. Lawrence v. Stearns, 11 Pick. 501.

In capital cases, indeed, the uniform practice in this Commonwealth has been to keep the jury together from the time the case is opened to them until their final discharge.

But the practice is equally well settled, and in accordance with the decisions elsewhere, that pending a trial for a misdemeanor the jury may be permitted by the court, without the consent or knowledge of the defendant, to separate and go to their homes at night, without vitiating their verdict. The King v. Woolf 1 Chit. 401; S. C. nom. The King v. Kinnear, 2 B. & Ald. 462. McCreary v. Commonwealth, 29 Penn. St. 323.

If the jury in a case of misdemeanor are allowed, without the consent of the defendant, to separate after the case is finally committed to them by the court, and before the verdict is returned, the verdict cannot be recorded, unless it clearly appears that the verdict was not influenced by anything that took place during the separation. It was accordingly held that where the jury were allowed by the judge to disperse upon stating to the officer they had agreed on and sealed up a verdict, and upon coming into court rendered an oral verdict, without any sealed verdict being produced or opened or its contents made known to the defendant or his counsel, the verdict was invalid. Commonwealth v. Durfee, 100 Mass. 146. Commonwealth v. Dorus, 108 Mass. 488.

But when all possibility of improper influences is excluded by conclusive evidence that the jury arrived at and reduced to writing before their separation the same result which they afterwards announced in open court, the verdict may be received and recorded. State v. Engle, 13 Ohio, 490. State v. Weber, 22 Misso. 321. Reins v. People, 30 Ill. 256.

In the case at bar, the form of the written verdict is absurd, and, considered as a verdict, (if written verdicts were ever allowable in criminal cases,) could not be sustained. But the word “ guilty ” and the signature of the foreman, both written by him, taken in connection with the directions of the court under which the paper was written and sealed up, which was afterwards returned and opened in court, proved beyond a doubt that the jury, before they separated, arrived at the same result, which they afterwards orally announced in due form when inquired of by the clerk in open court. The judge might therefore lawfully direct a verdict of guilty to be recorded. Exceptions overruled.