Commonwealth v. Costello

• Citation: 128 Mass. 88
• Parties: Commonwealth v. Morris Costello
• Decision Date: 07 January 1880
• Court: United States State Supreme Judicial Court of Massachusetts

128 Mass. 88

Commonwealth v. Morris Costello

Supreme Court of Massachusetts

January 7, 1880

Argued November 24, 1879

Suffolk. Indictment on the Gen. Sts. c. 163, § 11, for rescuing a prisoner from the lawful custody of a police officer. After a verdict of guilty in the Superior Court, the defendant moved to set aside the verdict for the following reasons: "1. Because the proceedings in regard to the rendition of the verdict and separation of the jury were irregular and illegal. 2. Because no proper and correct verdict was rendered by the jury. 3. Because, after the case was given to the jury, and before any verdict was rendered, they had separated without the knowledge or consent of the defendant."

The motion was overruled by Dewey, J., who allowed a bill of exceptions, stating the facts that appeared upon the hearing of the motion, as follows:

The jury retired to consider their verdict during the afternoon session of the court, and, at the time of the adjournment of the court for the day, they had not agreed. About eight o'clock that evening they agreed upon a verdict, and so informed the officer having charge of them, and thereupon they separated for the night. At the time they retired to consider the case, the judge directed them that, if they had not agreed at the time of the adjournment of the court that day, but agreed after the adjournment, the foreman should sign a statement of their verdict as agreed, seal up the same, and return their verdict in the morning. The verdict as stated in the writing returned to the court, was signed and sealed up as directed before the jury separated.

At the opening of the court the next morning, all the members of the jury and the defendant being present, the defendant, upon learning the above facts, and before the jury had returned their verdict, objected to the reception and recording of the verdict, because of the separation of the jury, without his knowledge or consent, after the case was given to them, and before rendering their verdict in court. The clerk was directed by the court to take the verdict, which was taken in the following manner: The written verdict was handed by the foreman to the clerk, and read, and the clerk inquired of the jury if they had agreed upon their verdict, to which the foreman answered they had, and that they found the defendant guilty; whereupon the clerk stated the verdict, that the jury found the defendant guilty, and asked the jury if they all so said, to which they assented.

Exceptions overruled.

T Riley, for the defendant.

G Marston, Attorney General, for the Commonwealth.

OPINION

Gray C. J.

The offence of which the defendant has been convicted, being punishable by imprisonment in the state prison, is a felony. Gen. Sts. c. 163, § 11; c. 168, § 1. But in this Commonwealth, by long established usage, it is not essential, in the case of any offence under the degree of a capital crime, that the jury should be kept together from the time the case is opened to them until their final discharge. It is every day's practice, in cases of felonies not punishable with death, as well as of misdemeanors, to allow the jurors to separate at the intermissions of the...