Commonwealth v. Poisson

32 N.E. 906, 157 Mass. 510, 1893 Mass. LEXIS 352

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1893
• Status: Published

Opinion

Holmes, J.

1. Under Pub. Sts. c. 170, § 35, (Gen. Sts. c. 132, § 29, Rev. Sts. c. 95, § 27,) the examination of jurors as to interest or bias in the cause, etc., beyond the inquiries provided for expressly by the statute, was left to the discretion of the presiding judge. Commonwealth v. Burroughs, 145 Mass. 242, 244. Commonwealth v. Thrasher, 11 Gray, 55. Commonwealth v. Gee, 6 Cush. 174, 177. See Commonwealth v. Trefethen, ante, 180. It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the St. of 1887, c. 149, as having that effect. On the contrary, the power given by the St. of 1887 to the parties to make the examination provided for by the Public Statutes is, in terms, to make it “ under the direction of the court.” There is still a discretion, and, in our opinion, it is exercised wisely by not going beyond the usual questions, unless something appears which makes it proper to go further.

The questions which the defendant wanted to have asked went beyond those suggested by the statute, without any manifest reason. But for the dictum in Robinson v. Randall, 82 Ill. 521, 522, we should have said that affirmative answers to them had no tendency to show that the juror did not stand indifferent in the sense of the statute, or at most bore upon that issue, which is the only one, in a very remote way. If a juror should admit that he regarded as more or less discredited a witness who, so far as the evidence had gone at the moment of his testifying, appeared probably to be a liquor seller, the admission would go Only to the juror’s general opinions concerning circumstances which affect the value of evidence. It is to get the benefit of such opinions formed by men of the world that jurors are summoned. It seems to us that the existence of such a one as we have supposed would not prevent the juror from standing indifferent in this particular case. See Chandler v. Ruebelt, 83 Ind. 139, 143; Shields v. State, 95 Ind. 299.

2. The second exception seems to be confined to the refusal of the court to stop the district attorney in his argument after he had said to the jury, “ The grand jury ask you to find the defendant guilty.” If, as is suggested, although not stated by the bill of exceptions, this expression was used by way of argument, and not as a mere mode of stating that the defendant was indicted, it warranted interruption, and it deserved rebuke. But, so far as appears, the jury at the proper time were instructed to disregard such an argument, or were given some other instructions embracing that, and equally favorable to the defendant. The mere failure to stop the district attorney is not a ground for a new trial. It does not appear that he pressed the argument further after he was interrupted. See Commonwealth v. Worcester, 141 Mass. 58; Commonwealth v. Cunningham, 104 Mass. 545; Commonwealth v. Byce, 8 Gray, 461.

3. The unexpected conduct of the foreman in pointing out the one juryman who did not agree with the rest, and who wanted further instructions, might have had the effect to bring an improper pressure to bear upon him, but that would depend a good deal upon the individual thus pointed out. The presiding justice was the best judge whether it did any harm in this particular case. If he had given the defendant a new trial, his decision would not have been open to criticism, and we cannot say that he was wrong in refusing one. The juryman was not deterred from putting the question which he wanted answered. We must assume that the judge was satisfied that his constancy would not be affected unduly by the subsequent reading of the familiar passage from Commonwealth v. Tuey, 8 Cush. 1, 2. The case is very like Commonwealth v. Whalen, 16 Gray, 25, 26, 27.

Exceptions overruled.