Com. v. White

• Decision Date: 05 May 1888
• Citation: 147 Mass. 76,16 N.E. 707
• Parties: COMMONWEALTH v. WHITE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 76

16 N.E. 707

COMMONWEALTH v. WHITE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 5, 1888

COUNSEL

Edward Avery, for defendant.

OPINION

The motion for a new trial is addressed to the discretion of the judge who hears the motion, but the discretion thus vested in him is not to be exercised in an arbitrary manner, regardless of the rules of law or the weight of evidence. Woodward v. Leavitt, 107 Mass. 460. If the evidence shows that there was any misconduct on the part of the jurors, or that they may have been influenced by extraneous matters, or had formed or expressed an opinion against the defendant before he had been heard in his defense, or may have been affected by any statements made to them pending the trial, or before they were impaneled, the law requires the judge to treat the verdict as the result of a mistrial and set it aside. Com. v. Roby, 12 Pick. 519. Does not the evidence show an irregularity which may have affected the impartiality of their conduct. State v. Andrews, 29 Conn. 102; McDaniels v. McDaniels, 40 Vt. 363; Tomlinson v Derby, 41 Conn. 273; People v. Turner, 39 Cal 370; Blalock v. Phillips, 38 Ga. 221. The ruling of the court excluding the conversations between the jurors is broad enough to exclude what occurred in the saloon, as testified to by Ross, as that was a conversation between jurors outside of the court-house. Woodward v Leavitt, 107 Mass. 453; Johnson v. Witt, 138 Mass. 79; Heffron v. Gallupe, 55 Me. 566, KENT, J.; Deacon v. Shreve, 22 N.J.Law, 176; Wright v. Telegraph Co., 20 Iowa, 198; Rowe v. Canney, 139 Mass. 42; Chadbourn v. Franklin, 5 Gray, 312; Cook v. Castner, 9 Cush. 278. See, also, U.S. v. Reid, 12 How. 361. The defendant claims that in any view of the authorities the evidence of French and Ross was admissible.

A.J. Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

The rulings of the court were correct, and judgment should be entered upon the verdict. It is an elementary rule of practice that motions for new trials are addressed to the discretion of the presiding justice. And to rulings made by the presiding justice upon matters within his discretion, exceptions will not be entertained, excepting where it is conclusively shown that manifest injustice has been done, and that the rights of the parties have been undeniably prejudiced. Johnson v. Witt, 138 Mass. 79; Clapp v. Clapp, 137 Mass. 183; Com. v. Desmond, 141 Mass. 200, 5 N.E. 856; Woodward v. Leavitt, 107 Mass. 458; Mathis v. State, 18 Ga. 343; State v. Brunetto, 13 La.Ann. 45; Kirk v. Grant, 10 Atl.Rep. 230; Ely v. Parsons, Id. 499; Hil. New Trials, 198. The report in this case, made at the request of the defendant, discloses no injustice done to or prejudice of the rights of the defendant. The evidence which was offered and admitted de bene in support of the motion for the new trial, is--even if it were competent--not only insufficient in itself, but in conflict with itself. The testimony offered as to what took place in the saloon was contradicted, and the presiding justice may so have found, and, acting within his discretion, refused the motion for a new trial. The ruling of the presiding justice that the testimony of jurors of conversations between them during the trial, whether in the court-room or out of the court-room, was inadmissible to impeach their verdict, is correct. 1 Grah. & W. New Trials, 61 et seq. See words of SHAW, C.J., in Cook v. Castner, 9 Cush. 278. A few of the many decisions to the same point are cited. Grinnell v. Phillips, 1 Mass. 530, contra, but overruled; Com. v. Drew, 4 Mass. 399; Bridge v. Eggleston, 14 Mass. 245, 248; Dorr v. Fenno, 12 Pick. 525; Hannum v. Belchertown, 19 Pick. 313; Murdock v. Sumner, 22 Pick. 156; Folsom v. Manchester, 11 Cush. 334; Railroad Corp. v. Dana, 1 Gray, 84, 96, 105; Chadbourn v. Franklin, 5 Gray, 312; Bridgewater v. Plymouth, 97 Mass. 382; Woodward v. Leavitt, 107 Mass. 458 et seq. Johnson v. Witt, 138 Mass. 79; Rowe v. Canney, 139 Mass. 41; Cowles v. Merchants, 140 Mass. 377, 5 N.E. 288; Com. v. Keenan, 140 Mass. 481, 5 N.E. 477; Warren v. Water Co., 143 Mass. 165, 9 N.E. 527; Chandler v. Thompson, 30 F. 38-45; Fredericks v. Judah, 15 P. 305; Bridger v. Railroad Co., 3 S.E.Rep. 860; Vaise v. Delaval, 1 Term.R. 11; Owen v. Warburton, 1 Bos. & P. (N.R.) 326; Rex v. Wooler, 6 Maule & S. 366, 2 Starkie, 111; Raphael v. Bank, 17 C.B. 161-175; Straker v. Graham, 4 Mees. & W. 721; Rex v. Simons, Sayer, 35; 1 Greenl.Ev. § 252; Hil. New Trials, 240; O'Barr v. Alexander, 37 Ga. 195; Allison v. People, 45 Ill. 37; Knowlton v. McMahon, 13 Minn. 386, (Gil. 358;) Hall v. Robison, 25 Iowa, 91; Bishop v. State, 9 Ga. 121; Bladen v. Cockey, 1 Har. & McH. 230; People v. Carnal, 1 Park.Crim.R. 256; U.S. v. Reid, 12 How. 367; Hall's Case, 6 Leigh, 615; Leighton v. Sargent, 11 Fost. (N.H.) 119; Luster v. State, 11 Humph. 169; Ward v. State, 8 Blackf. 101; People v. Baker, 1 Cal. 403; Haight v. Turner, 21 Conn. 593; People v. Columbia, 1 Wend. 297; Suttrel v. Dry, 1 Murph. 94; Dana v. Tucker, 4 Johns. 487; State v. Andrews, 29 Conn. 100; State v. Freeman, 5 Conn. 348; Meade v. Smith, 16 Conn. 346-356; Creek v. State, 24 Ind. 151-155; Greeley v. Mansur, 64 Me. 211; State v. Pike, 65 Me. 111-116; Bingham v. Foster, 37 Iowa, 339; State v. Royal, 90 N.C. 755; Brennan v. State, 33 Tex. 266; Taylor v. State, 52 Miss. 84; Gilleland v. State, 44 Tex. 356. The ruling excluding a juror's affidavit applies to his oral testimony. Straker v. Graham, 4 Mees. & W. 721; Burgess v. Langley, 6 Scott N.R. 518. In the few cases in which affidavits of jurors have been noticed by the court, the affidavits were received to explain, or correct and enforce a verdict, but not to impeach it. 1 Grah. & W. New Trials, 118; Jackson v. Williamson, 2 Term R. 281; Rex v. Simons, Sayer, 35. The following cases cited are decisive of what would be deemed sufficient to show prejudice upon the part of a juror: State v. Greer, 22 W.Va. 800; Berry v. DeWitt, 23 Blatchf 544; State v. Marks, 15 Nev. 33; Com. v. Flanagan, 7 Watts & S. 415; Ridenour v. Clarinda, 65 Iowa, 465, 21 N.W. 779. The same reasons hold good for alleged misconduct of jurors out of the court-room. Caswell v. Pitcher, 10 Atl.Rep. 453; Cowles v. Merchants, 140 Mass. 377, 5 N.E. 288; Rowe v. Canney, 139 Mass. 41. Shea v. Lawrence, 1 Allen, 168; Chadbourn v. Franklin, 5 Gray, 312; State v. Cucuel, 31 N.J.Law, 249; McIlvaine v. Wilkins, 12 N.H. 474; Pettibone v. Phelps, 13 Conn. 445; Epps v. State, 19 Ga. 102; Burtine v. State, 18 Ga. 534; Stewart v. Small, 5 Mo 525; Davis v. Taylor, 2 Chit. 268; Parkes' Case, 2 Rolle, 85; Rowe v. State, 11 Humph. 491; Collier v. State, 20 Ark. 36; Robbins v. Windover, 2 Tyler, 11; Barbour v. Archer, 3 Bibb. 8; Willing v. Swasey, 1 Browne, (Pa.) 123; March v. State, 44 Tex. 64-69; Heffron v. Gallupe, 55 Me. 563; Hil. New Trials, 208.

DEVENS J.

A motion for a new trial on grounds similar to those alleged in the case at bar is ordinarily addressed solely to the discretion of the judge who presided at the trial. Unless he shall have refused to exercise that discretion in favor of the moving party, under circumstances the proved existence of which required for some legal reason that he should do so, or unless he has refused to receive and consider evidence by which that discretion should be guided or controlled, his decision cannot be elsewhere reviewed. Woodward v Leavitt, 107 Mass. 458; Clapp v. Clapp, 137 Mass. 183; Johnson v. Witt, 138 Mass. 79; Com. v. Desmond, 141 Mass. 200, 5 N.E. 856. In the case at bar, the defendant offered testimony as to statements made in the hearing of some of the jurors before they were impaneled of other statements made in their hearing after they were impaneled, and of a conversation between one or more of them and a third person pending the trial. This testimony was received by the presiding judge. The defendant further offered the testimony of a juror of expressions of opinion by a certain juror to another, during the trial, and of urgency by him and the foreman, by threats, to control and improperly influence the judgment of their fellow juror. These expressions were uttered elsewhere than in the jury-room, although after the jury was impaneled, and while the trial was pending. The presiding judge ruled that the testimony of jurors of conversations between them, during the trial, whether in the court-room or out, was inadmissible to impeach their verdict, and excluded their evidence on this subject. He further held that the defendant was not, as matter of law, entitled to a new trial, and in the exercise of his discretion declined to grant it. In regard to what was alleged to have been said in the presence of the jurors before and after they were impaneled, the evidence was conflicting, and the evidence of one of the jurors who testified to them was by no means free from suspicion. His professions of a desire to do his duty are not quite consistent with his delay in making known the attempted influence to which he had himself been subjected, or that which he had sought to impose upon others. It may well have been that the presiding judge was not satisfied, upon the facts, that the occurrences testified to had taken place. In such case it would certainly have been his duty to reject the motion. But assuming in favor of defendant's contention,--that he must have been and was satisfied that improper remarks had been made to the jury,--there was no legal reason which rendered it his duty to grant a new trial. Remarks made in the presence or hearing of jurors as to cases on trial cannot always be prevented. Jurors are presumed to be, and are, with those exceptions that must always exist, men of intelligence, of good moral character, and fully...