Commonwealth v. Costello

128 Mass. 88, 1880 Mass. LEXIS 10

• Court: Massachusetts Supreme Judicial Court
• Decided: January 7, 1880
• Status: Published

Opinion

Gray, C. J.

The offence of which the defendant has been convicted, being punishable by imprisonment in the state prison, is a felony. Gen. Sts. e. 163, § 11; e. 168, § 1. But in this Commonwealth, by long established usage, it is not essential, in the case of any offence under the degree of a capital crime, that the jury should be kept together from the time the case is opened to them until their final discharge. It is every day’s practice, in cases of felonies not punishable with death, as well as of misdemeanors, to allow the jurors to separate at the intermissions of the court pending the trial. And in both classes of cases juries have been authorized by the court, without express assent of the defendant, after the case has been finally committed to them, to separate upon signing and sealing up a form of verdict, and to deliver their verdict orally upon the next coming in of the court.

In Commonwealth v. Durfee, 100 Mass. 146, a case of adultery, (which was a felony, Gen. Sts. c. 165, § 3,) this was assumed to be the law; and the exceptions were sustained solely because the paper signed and sealed up by the jury before they separated was not read in court, and it did not therefore appear that their oral verdict accorded with the result upon which they had agreed before their separation. In Commonwealth v. Carrington, 116 Mass. 37, although the conviction was of a misdemeanor only, the decision proceeded upon the broad ground that in any criminal case not capital the jury might 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 an oral verdict in open court in accordance with the result so stated and sealed up; and the cases of McCreary v. Commonwealth, 29 Penn. St. 323, and State v. Engle, 13 Ohio, 490, cited in the opinion, were cases of felony. See also Commonwealth v. Tobin, 125 Mass. 203, 206; Anon. 63 Maine, 590.

If the court could not lawfully allow the jury to separate without the consent of the defendant, it is at least doubtful whether such consent could cure the difficulty. The King v. Woolf, 1 Chit. 401, 420; S. C. nom. The King v. Kinnear, 2 B. & Ald. 462, 464. Peiffer v. Commonwealth, 15 Penn. St. 468, 470.

In the case at bar, after the jury had returned into court, and the written form of verdict had been handed by the foreman to the clerk and read, the jury being asked by the clerk if they had agreed upon their verdict, the foreman answered, not only that they had, but also that they found the defendant guilty, and thereupon the verdict was affirmed in the usual form. This oral delivery of the verdict by the foreman as the organ of the jury in open court distinguishes the case from that of Commonwealth v. Tobin, 125 Mass. 203. Exceptions overruled.