Com. v. Meserve

• Decision Date: 25 February 1892
• Citation: 156 Mass. 61,30 N.E. 166
• Parties: COMMONWEALTH v. MESERVE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 61

30 N.E. 166

COMMONWEALTH v. MESERVE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1892

COUNSEL

Chas. N. Harris, for the Commonwealth.

Edward Avery and Geo. R. Swasey, for defendant.

OPINION

FIELD, C.J.

It is not denied that the testimony of a juror to what he said in the deliberations of the jury-room is inadmissible as evidence on a motion for a new trial, or that one juror cannot be permitted to testify to what was said by another juror during such deliberations; but it is argued that evidence of statements to other persons, made by a juror subsequent to the verdict, of what he said in the jury-room during the deliberations of the jury, is admissible. But if his testimony as to what was said cannot be received, his declarations of what was said cannot be. Warren v. Water Co., 143 Mass. 155, 9 N.E. 527; Woodward v. Leavitt, 107 Mass. 460. It is argued that evidence of what the juror Herbert said in the jury-room was received without objection, and therefore is to be considered. The foreman of the jury and another juror were called as witnesses by the defendant, and were asked whether there had been any evidence introduced at the trial to show that the defendant "kept one of the worst places at Crescent beach, and cheated everybody all round," and their answer was, in substance, that there had been no such evidence, "except the statement of the juror Herbert," by which was meant his statement in the jury-room. What that statement was does not expressly appear. The presiding justice had previously refused to permit these witnesses to testify to the statement made by Herbert in the jury-room. The exception made by these witnesses of the statement made by Herbert in the jury-room when answering a question concerning the evidence introduced at the trial cannot properly be regarded as evidence of what that statement was; and, if it could, such evidence is excluded on grounds of public policy, and it would have been the duty of the presiding justice to have struck it out, or to have refused to consider it, even if it had been admitted without objection. These are the only exceptions which the counsel for the defendant have argued.

Exceptions overruled.