Commonwealth v. Thrasher , 77 Mass. 57 ( 1858 )

Merrioic, J.

1. The objection that Solomon A. Howe was improperly sworn and allowed to sit as a juror on the trial of the defendant cannot be sustained. Nothing resulting from his examination was sufficient to show that he was incompetent, or in any respect disqualified to act in that capacity. He disclosed, in reply to the interrogatories proposed to him, that he knew there was such a case as this, and had heard persons talking with each other about it; but he declared that he paid little attention to their conversation, had not heard facts enough to form any opinion, and was sensible of no bias of mind whii ,h would lead him one way or the other to any conclusion in relation to it. Taking all this together, it fully appears that he hrd formed no opinion concerning the accusation against the defendant, was under the influence of no bias or prejudice in favor of or against either party, and he stood in a position in which he could justly and conscientiously discharge his duty as a juror. He was therefore properly permitted and required to serve in that office upon the trial.

2. It is, under the circumstances stated in the bill of exceptions, no sufficient cause for disturbing the verdict, that the district attorney was permitted to put to the witness Sampson the particular interrogatory which was objected to by the defendant. It does not appear that it elicited a reply which h id relation to any period of time in respect to which the production of evidence in support of the prosecution was incompetent; and it is not suggested that there was in fact anything disclosed in it, of which he had a right to complain. The limits of the examination of a witness, in matters of form, and the manner in which it shall be conducted, must always rest, to a considerable extent, in the discretion of the judge before whom the trial takes place; and upon a revision of his ruling in these par* tioulars, it ought to be affirmed, unless it is made to appear that it involved a positive violation of the rules of evidence, or that it may have materially affected the rights of a party against whose objection it was made.

3. Exception was taken at the trial to the instructions given to the jury. But no error in those instructions has been pointed out; and the defendant’s counsel, in his argument upon the questions of law reserved, has only contended that, assuming that those instructions were correct, the verdict of the jury was certainly against the evidence laid before them. If this were so, it would afford good cause for setting aside the verdict, upon a motion to that effect; but would fail altogether to show that there was any error in the instructions of the court upon the matters of law involved in the issue. There was evidence before the jury of several sales made by the defendant at different times; and this evidence consisted in part of proof that the liquor named by the purchaser was actually paid for, and in part of proof that the liquor was delivered at places other than a private dwelling-house. And it was obviously this distinction to which the question of the court and the answer of the foreman of the jury referred. There was nothing in the answer to show that the jury had not passed upon the whole question submitted to them, and found that the defendant had made such number of sales as would, within the provisions of the statute, constitute him a common seller. St. 1855, c. 215, § 17.

Exceptions overruled.