Commonwealth v. Durfee

100 Mass. 146

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Chapman, C. J.

1. Evidence of an act of adultery may be corroborated by evidence of prior acts of familiarity between the parties. Commonwealth v. Merriam, 14 Pick. 518. The defendant’s exceptions do not show that the acts of familiarity proved in this case were subsequent to the alleged act of adultery.

2. But the verdict was not regularly rendered. Even in civil cases it is required that, if the jury separate after being sent out, the fact that they agreed before they separated shall be evidenced by a verdict sealed up and brought into court. Less strictness ought not to be tolerated in a criminal case than is is required in a civil case. In this case, the jury separated, and when they came into court the next morning they did not present a sealed verdict, but rendered an oral verdict just as they would have done if they had not separated. It is true that the written verdict which is returned in a civil case is placed on file as the verdict of the jury, while in a criminal case a general verdict is oral. But the permission which is given to the jury to separate in a criminal case is always on condition that before their separation they shall reduce their verdict to writing, signed by their foreman and sealed up. Such appears to have been the direction in this case. We know of no authority or practice allowing them to separate without doing this, except when they are discharged because they cannot agree; or for receiving their verdict after such separation, without having the sealed verdict opened and read in court" nor do we see any reason for relaxing the rule. Exceptions sustained.