Commonwealth v. Carrington

• Decision Date: 23 October 1874
• Citation: 116 Mass. 37
• Parties: Commonwealth v. Edward R. Carrington
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 37

Commonwealth v. Edward R. Carrington

Supreme Court of Massachusetts

October 23, 1874

Hampden. Complaint for larceny of a guinea hen. Trial in the Superior Court, on appeal, before Dewey, J., who allowed a bill of exceptions in substance as follows:

The jury not having agreed at the time of adjournment of the morning session, the presiding judge directed the officer that if the jury should agree on a verdict before the afternoon session, they should seal up the same and bring it in at the afternoon session, and directed the officer to tell the jury to return a verdict of guilty or not guilty according as they might agree, and to have it signed by the foreman and sealed up; that then they might separate and return their verdict when they came into court in the afternoon.

The officer thereafter wrote, for the direction of the jury, all that is on the face of the following paper returned by the jury, except the word "guilty" at the conclusion and the signature, "E. B. Haskell, Foreman," which word and signature were written by the foreman "Verdict. In case of Commonwealth vs. , the jury find defendant guilty or not guilty, as the case may be. Guilty. Signed, E. B. Haskell, Foreman." After the jury had agreed and this paper had been signed and sealed up with the complaint, the jury separated. On their return into court in the afternoon, the defendant being present and all the jurors, the clerk, by order of the presiding judge, inquired of the jurors if they had agreed on a verdict in this case, and the foreman replied they had, and handed the envelope to the clerk, who opened the same and read to the jury the paper returned as their verdict, and inquired of them if their verdict in said case was that the defendant was guilty, to which they assented.

The presiding judge ordered said paper to be filed as a verdict, and the clerk to record a verdict of guilty as found by the jury in said case. The defendant objected to the reception of and recording of said paper as a verdict, or of any verdict whatever. The court, overruling said objections, directed the reception and reading of said paper and record thereof and entry of the verdict as above stated. The defendant then moved to set aside the verdict for the following reasons: "1. Because no proper verdict was rendered by the jury. 2. Because, before any verdict was rendered, the jury had separated without the consent of the defendant. 3. Because, after the jury had retired, the officer wrote for their direction the paper returned by the jury as their verdict, and gave it to them with directions that they should return a verdict of guilty or not guilty, as they might agree, and to leave it signed by the foreman and sealed up." This motion was overruled, and the defendant alleged exceptions.

Exceptions overruled.

A. L. Soule & E. H. Lathrop, for the defendant. 1. The jury should have received instructions as to the method of returning their verdict from the court only, unless the defendant assented to instructions through the officer. The court cannot delegate such authority to a third person to be exercised out of its presence.

2. The jury should not have been allowed to separate without the consent of the defendant.

3. The paper returned by the jury was filed as the verdict, and must be the verdict of record; and the inquiry by the clerk, "If their verdict in said case was that the defendant was guilty," was improper. An oral verdict, after the jury had separated, could not be received.

4. The verdict does not find that the defendant was guilty. The verdict without the interrogatory by the clerk and the response thereto would not be intelligible: and was not open to explanation or interpretation by the jury after they had separated.

C. R. Train, Attorney General, for the Commonwealth.

Gray, C. J. Morton & Endicott, JJ., absent.

OPINION

Gray, C. J.

This bill of exceptions presents the question whether in a criminal case, not capital, the jury may be authorized by the court, without the consent of the defendant, to separate after agreeing upon, signing and sealing up a paper in the form of a verdict, and afterwards return a verdict in open court in accordance with the result so stated and...