Read v. City of Cambridge

• Decision Date: 28 June 1878
• Citation: 124 Mass. 567
• Parties: J. S. Read v. City of Cambridge
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 567

J. S. Read v. City of Cambridge

Supreme Court of Massachusetts

June 28, 1878

Middlesex. Petition under the St. of 1872, c. 299, § 8 to the county commissioners for a jury to assess the damages caused to the petitioner by the taking of land by the respondent. After the sheriff's jury, before which the trial was had, had retired to their room and were deliberating upon their verdict, they rang the bell to call the sheriff, who had them in charge, and who was the presiding officer at the trial. The sheriff went to the door of the jury room, and, as the door was being opened, the written question, "Have the counsel the right to argue on what is not in evidence?" was handed to the sheriff by the foreman, and the answer, "No," was given by the sheriff, orally, to the foreman at the door. The sheriff took an early opportunity, after the jury had been dismissed and before the verdict was returned to the Superior Court, to submit this question and answer to the counsel of both parties, who declared that the sheriff's instruction was correct. The jury returned a verdict for the petitioner; and the sheriff certified the foregoing facts, with the verdict to the Superior Court.

In that court, a motion to set aside the verdict, because of this proceeding of the sheriff, was overruled, and the verdict accepted. The respondent appealed to this court.

Verdict set aside.

J. W. Hammond, for the respondent.

C. T. Russell & C. T. Russell, Jr., for the petitioner.

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

OPINION

Gray C. J.

The action of the sheriff after the jury had retired to deliberate upon their verdict was irregular, and in violation of the settled law of the Commonwealth, and requires the verdict to be set aside.

In Sargent v. Roberts, 1 Pick. 337, after a trial of three days before a justice of this court, the jury had been out six hours, when the foreman wrote to the judge at chambers, informing him that they could not agree, and that they waited for his directions; the judge returned an answer in writing, saying that he was unwilling, after so much time had been consumed in the cause, to permit the jury to separate, and giving such instructions as would enable them to reconsider the cause in a more systematic manner, and directing them to bring his letter into court with them in order that it might be filed with the papers in the case; the jury returned a verdict for the defendants, and the plaintiff moved for a new trial, because of this communication from the judge to the jury. The full court, after mature consideration, and observing that the judge had acted in accordance with a practice which had long prevailed to some extent, and that it was impossible to complain of the substance of the communication, and the only question was whether any communication at all was proper, unanimously held that the plaintiff was entitled to a new trial.

The reasons were thus stated by Chief Justice Parker: "No communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause." "When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in writing, is improper. It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it; the only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object." "It is better that everybody should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy." 1 Pick. 342.

It was thus adjudged that, even in the highest court of the state, a communication from the judge to the jury, which was in writing and filed, so that there could be no question of its terms, and which was unobjectionable in substance, was yet, being made out of court and in the absence of the parties and their counsel, improper and illegal, and required a new trial to be granted on the motion of the party against whom the verdict was returned.

The rule thus established was recognized by Chief Justice Shaw in Commonwealth v. Roby, 12 Pick. 496, 518 and by Chief Justice Bigelow in Merrill v. Nary, 10 Allen 416, 417; it has never been qualified by legislation, (although the whole statute law of the Commonwealth has been since twice revised,) and has governed the practice of our courts for more than half a century; and it has been approved in many other states. ...