Com. v. Seeley

• Decision Date: 24 November 1896
• Citation: 45 N.E. 91,167 Mass. 163
• Parties: COMMONWEALTH v. SEELEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 163

45 N.E. 91

COMMONWEALTH v. SEELEY et al.

Supreme Judicial Court of Massachusetts, Berkshire.

November 24, 1896

COUNSEL

C.L. Gardner, Dist. Atty., for the Commonwealth.

H.C Joyner, for defendants.

OPINION

MORTON J.

In Com. v. Bickum, 153 Mass. 386, 26 N.E. 1003, it was held that two complaints against the same defendant, charging him with two distinct offenses, cannot be tried together against his objection. This case presents a different question, namely, whether the court could, in its discretion direct that the two defendants, who had been indicted separately, each for adultery with the other, at the same time and place, should be tried together without their consent. The power of the court to regulate the conduct of causes before it, with a view to the proper dispatch of business, and the interest of parties and others, is undoubted, and is not, we think, abridged because, in a case like the present, the grand jury, for some reason, has seen fit to indict the defendants separately, unless its exercise will interfere with substantive rights belonging to one or both of the defendants.

It is objected that, by trying the two cases together, the commonwealth would have four challenges out of one panel whereas, if the two cases were tried separately, it would have only two out of one panel. But the defendants also would have four challenges out of one panel (Com. v. Walsh, 124 Mass. 32, 38); and if they were not able to argue upon the challenge, or if one challenged where the other would prefer not to, they would be subjected to no greater disadvantage than they would have been liable to be subjected to if they had been jointly indicted, and had been refused separate trials. It is settled that in such a case the mere fact that a joint trial may prejudice the defendants somewhat in the exercise of their rights of challenge is not a sufficient reason for directing separate trials. Com. v. James, 99 Mass. 438; U.S. v. Marchant, 12 Wheat. 480; Reg. v. Blackburn, 6 Cox, Cr.Cas. 333. It does not appear whether the commonwealth or the defendants challenged any jurors, and, if so, how many, or whether, if the defendants challenged any jurors, there was any disagreement between them in respect to the challenges.

It is also objected that the defendants, having been indicted separately, had a right to expect that they would be tried separately, and to prepare their cases accordingly; that, in a joint trial, evidence admissible against one, but not against the other, might cause harm to the party against whom it was inadmissible; that the manner in which one defense was conducted might prejudice the other party's defense; and that in other respects the consolidation of the two cases might interfere with a full and fair trial on the part of one defendant or the other. These are considerations which properly might have influenced the court to refuse to order the two cases to be tried together, but do not, we think show that its direction that they should be so tried was wrong. Where, for instance, parties have been jointly indicted, it has been held that the fact that there was evidence which was competent against one or more, but not against others, did not require that the trials should be separated. Com. v. Bingham, 158 Mass. 169, 33 N.E. 341; Com. v. Miller, 150 Mass. 69, 22 N.E. 434. In civil actions the court may direct cases depending on substantially the same facts to be consolidated, notwithstanding that there...