Commonwealth v. Desmond
| Decision Date | 25 February 1886 |
| Citation | 141 Mass. 200,5 N.E. 856 |
| Parties | COMMONWEALTH v. DESMOND. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.B. Gale and J.W. McDonald, for defendant.
E.J. Sherman, Atty. Gen., for the Commonwealth.
The question is whether there was such misconduct on the part of the juror as to require the verdict to be set aside. To have this effect, it must appear that the misconduct was such as might have prejudiced the defendant. The finding of the judge that the defendant was not prejudiced by the act of the juror is conclusive, unless the facts reported are inconsistent with it, and show that it was erroneous in law. The act was done after the jury had agreed upon and sealed up their verdict, and separated, by leave of the court. The juror might still refuse to assent to the verdict when it should be returned into the court, and the defendant's argument is that it cannot be known that the information which the juror acquired by his visit to the premises did not prevent him from refusing to confirm the verdict, and therefore it cannot be found that it did so prejudice the defendant. A sufficient answer is that it does not appear that the act of the juror had any reference to the verdict. The jury had finished their deliberations, and agreed upon their verdict, which was afterwards returned into court and affirmed. There is no presumption or evidence that the juror questioned the correctness of the verdict which he had agreed to, or doubted whether he should assent to it, or sought information to settle his mind in regard to it. He did not change his mind, and there is nothing to show that he thought of changing it. From the facts stated, his visit to the premises described at the trial appears to have been to gratify curiosity in regard to a matter about which he had acted, and not to get information in regard to a matter upon which he was to act. The facts do not show that the finding of the court was wrong. See Com. v. Roby, 12 Pick. 496; Nichols v. Nichols, 136 Mass. 258; Johnson v. Witt, 138 Mass. 79; Cowles v. Merchant, 140 Mass. 377; S.C., ante, 288.
Judgment on the verdict.
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