Commonwealth v. Poisson

• Decision Date: 03 January 1893
• Parties: COMMONWEALTH v. POISSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 510

32 N.E. 906

COMMONWEALTH v. POISSON.

Supreme Judicial Court of Massachusetts, Bristol.

January 3, 1893

Before the jury was sworn, and after they had been called, defendant requested the court to put to them the following questions: (1) "Have you any prejudice or bias against the sale of liquor that would prevent you from giving the same weight to the testimony of a person engaged in the sale of liquor, or who has been engaged in such business that you would give to any other witness, so far as the occupation or trade of a witness would affect his credibility?" (2) "Have you any bias or prejudice against a person accused of the unlawful sale of liquor, and against whom some evidence has been offered tending to prove the offense, that would prevent you from giving to the testimony of the accused the same weight that you would give to any other person accused of an offense, and against whom some evidence had been offered?" The court declined to put these questions, but did ask if they had expressed or formed an opinion as to the guilt or innocence of the accused, or were sensible of any bias or prejudice for or against him, and defendant excepted.

In his closing argument to the jury, the district attorney said "The grand jury ask you to find that this man [referring to defendant] kept a disorderly house, and kept liquors there for sale on February 10th." Thereupon defendant's counsel requested the court not to permit that line of argument, and to instruct the jury at the proper time that they were not to consider that the grand jury asked them to find the defendant guilty, as stated by the district attorney. The court refused to stop the district attorney in his argument, and defendant excepted.

After the jury had had the case under consideration for several hours, they came into court for further instructions. The presiding justice asked the foreman if the jury desired further instructions. The foreman then arose in his place and said: "This man here [pointing with his finger to a juryman near him] would like to have further instructions." The juryman then asked a question of the presiding justice, to which a response was made, defining what in law would constitute a "disorderly house."

COUNSEL

C.N. Harris, Second Asst. Atty. Gen., for the Commonwealth.

Cummings & Higginson, for defendant.

OPINION

HOLMES J.

Under Pub.St. c. 170, § 35, Gen.St. c. 132, § 29, and Rev.St. c. 95, § 27, the examination of jurors as to interest or bias in the cause, etc., beyond the inquiries provided for expressly by the statute, was left to the discretion of the presiding judge. Com. v. Burroughs, 145 Mass. 242, 244, 13 N.E. 884; Com. v. Thrasher, 11 Gray, 55; Com. v. Gee, 6 Cush. 174, 177. See Com. v. Trefethen, (Mass.) 31 N.E. 961. It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the act of 1887, c. 149, as having that effect. On the contrary, the power given to the parties to make the examination provided for by the Public Statutes is, in terms, to make it "under the direction of the court." There is still a discretion, and in our opinion it is exercised wisely by not going beyond the usual questions, unless something appears which makes it proper to go further.

The questions which the defendant wanted to have asked went beyond those suggested by the statute, without any manifest reason. But for the dictum in Robinson v. Randall, 82 Ill. 521, 522, we should have said that affirmative answers to them had no tendency to show that the juror did not stand "indifferent," in the sense of the statute, or, at most, bore upon that issue, which is the only one, in a very remote way. If a juror should admit that he...