Commonwealth v. Tobin

• Decision Date: 18 July 1878
• Citation: 125 Mass. 203
• Parties: Commonwealth v. Cornelius Tobin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 203

Commonwealth v. Cornelius Tobin

Supreme Court of Massachusetts

July 18, 1878

Suffolk. Indictment for manslaughter. After verdict of guilty in the Superior Court, the defendant, on the same day, 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 Gardner, 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 morning session of the court, and at the time of the adjournment of the court in the afternoon they had not agreed. The judge adjourned the court, and, when on his way from the bench to the lobby and within two minutes after the formal adjournment of the court, instructed the officer in charge of the jury without the knowledge or consent of the defendant or his counsel, that if the jury agreed before the coming in of the court, on the following morning, he might permit them to seal up their verdict, separate, and return with their verdict into court at the opening thereof in the morning. The jury thereafter, and about six o'clock that evening, agreed upon a verdict of guilty, which the foreman wrote into a printed blank, signed and sealed up with the other papers in the case, in the presence of all the jury. The foreman then informed the officer that the jury had agreed. The officer asked if they had sealed up their verdict, to which the foreman answered, "Yes." The officer then said "You may separate, and return into court tomorrow morning at halfpast nine o'clock." The jury separated, the foreman taking the sealed verdict with him.

At the opening of the court the next morning, all the members of the jury, the defendant and one of his counsel were present in court. The clerk was directed by the court to take the verdict. The clerk called the defendant by name. The clerk then said, "Gentlemen of the jury, have you agreed upon your verdict?" The foreman answered, "We have," and handed, by the officer, a sealed envelope to the clerk. The clerk broke the seal, and took therefrom and read to the jury the paper which is copied in the margin ^[*] and which was all printed, except the word "guilty" and the signature, which were written by the foreman. The clerk then said: "Gentlemen of the jury, hearken to your verdict as the court has recorded it. You, upon your oaths, do say that the prisoner at the bar is guilty. So you say, Mr. Foreman, and so, gentlemen, you all say."

The above is all that was said. The foreman, after he had sealed the verdict as above stated, kept the same in his possession until he delivered it to the clerk, when the verdict was returned, and he testified that it had not been opened. The defendant and his counsel knew that the jury had separated after the adjournment of the court; but, as to all the other above facts, they were ignorant.

The case was argued at the bar, and was afterward submitted on additional briefs to all the judges.

Exceptions sustained.

T Riley & C. T. Russell, Jr., for the defendant.

W. C. Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.

OPINION

Gray, C. J.

By the law of England, in cases of felony, the only verdict allowed was a public verdict pronounced by the foreman in open court, and in the presence of the prisoner. In prosecutions for misdemeanors, and in civil cases, although the jury were permitted to separate upon giving a privy verdict orally to the judge out of court, yet such verdict was of no force unless afterwards affirmed by an oral verdict given publicly in court, and the only effectual and legal verdict was the public verdict. 3 Bl. Com. 377. 4 Bl. Com. 360. 1 Chit. Crim. Law, 635, 636.

In this country, by way of substitute for a privy verdict, and to attain the same end of allowing the jury to separate after they have come to an agreement, a practice has been adopted in civil actions, and in cases of misdemeanors, at least, if not of all but capital crimes, of directing the jury, if they should agree during the adjournment of the court, to sign and seal up their finding, and come in and affirm it at the next opening of the court; but the verdict which determines the rights of the parties, and is admitted of record, and upon which judgment is rendered, is the verdict received from the lips of the foreman in open court. When the jury have been permitted to separate after agreeing upon and sealing up a verdict, there is this difference between civil and criminal cases: In a civil action, if the written verdict does not pass upon the whole case, or the jury refuse to affirm it, the court may send them out again, and a fuller or different verdict afterwards returned will be good. But in a criminal case, the oral verdict pronounced by the foreman in open court cannot be received, unless it is shown to accord substantially with the form sealed up by the jury before their separation. Lawrence v. Stearns, 11 Pick. 501. Pritchard v. Hennessey, 1 Gray 294. Commonwealth v. Townsend, 5 Allen 216. Commonwealth v. Durfee, 100 Mass. 146. Commonwealth v. Carrington, 116 Mass. 37. Dornick v. Reichenback, 10 S. & R. 84. Lord v. State, 16 N.H. 325.

By the settled practice in this Commonwealth, the course of proceeding upon the return of the jury into court in a criminal case is as follows: The clerk asks the jury if they have agreed upon their verdict. If the foreman answers that they have, the clerk then asks whether they find the defendant guilty or not guilty. The foreman answers "Guilty," or "Not guilty." The clerk then makes on the back of the indictment a minute of the verdict so returned, and, having done this, says to the jury, "Gentlemen of the jury, hearken to your verdict as the court has recorded it. You, upon your...