158 Mass. 405 (1893), Kullberg v. O'donnell

Citation:158 Mass. 405, 33 N.E. 528
Opinion Judge:FIELD, C.J.
Attorney:John W. Low, for plaintiff. Thomas Riley, for defendant.
Case Date:March 04, 1893
Court:Supreme Judicial Court of Massachusetts

Page 405

158 Mass. 405 (1893)

33 N.E. 528




Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1893

[33 N.E. 528] The additional instructions given to the jury in the absence of the parties and their counsel were as follows: "I intended to call your attention, before you retired, to the importance of your coming to a verdict in this case. As you learned from the remarks of counsel, this case has been tried before. It is important, both for the plaintiff and for the defendant, that the jury should come to a verdict. The trial of a case is attended with a great deal of expense to both parties, and to the county. This is the mode provided by law for the trial of cases. There is no reason to believe that there will ever be a jury who will be better able to deal with the questions involved in this case than you are, and you ought to come to a verdict, if you can conscientiously do so; and, in considering the questions involved, you are to approach them with a disposition to agree. You ought to give proper weight to all the evidence. While it is a verdict of each, as well as the verdict of the twelve, you ought, if you can conscientiously, come to a verdict. You ought not to say, unless you are compelled to, that you cannot come to a verdict. I shall have to ask you to consider the case further, and hope you will be able to arrive at a verdict."



Page 406

W. Low, for plaintiff.

Thomas Riley, for defendant.



The presiding justice sent for the jury after the case had been committed to them, and they were brought into the court room while the court was in session, and in open court the justice further instructed them, "in the absence of counsel on both sides," after which the jury returned a verdict for the defendant. The plaintiff's counsel contends, as matter of law, that he is entitled to a new trial because the jury was thus instructed in his absence. In Sargent v. Roberts, 1 Pick. 337, it was said: "No communication whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court, and, when practicable, in presence of the counsel in the

Page 407

cause." In Com. v. Roby, 12 Pick. 496, 518, it was said that the verdict was set aside in Sargent v. Roberts "on the ground that the practice then...

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