Commonwealth v. Whalen , 82 Mass. 25 ( 1860 )

Hoar, J.

The defendant, who is the wife of Patrick Whalen, is indicted by a somewhat novel mode of designation ; but as she has made no objection to it, we have no occasion to consider its propriety.

The exceptions taken by her, which were similar to those taken on the trial of the indictment against her husband, have been settled by the decision in Commonwealth v. Whalen, ante, 23.

The first exception peculiar to this case is, that she could not be found guilty of selling intoxicating liquor, upon proof of a delivery by her, in pursuance of a contract of sale made by her husband. But a delivery is an essential part of a sale; and if, as the instruction of the court assumed, the jury were satisfied that she acted as the agent of her husband in what she knew to be an illegal sale, by making the delivery of the thing sold in his absence, this constituted a sufficient participation in the misdemeanor to render her responsible for it under the statute. St. 1855, c. 215, § 17. Commonwealth v. Murphy, 2 Gray, 510.

The remarks made by the presiding judge to the jury were unobjectionable. It was certainly proper for the court to instruct the jury that they were not at liberty to disregard any provision of law applicable to the case before them. Nor is it a questionable proposition that it is important to defendants and to the community that public prosecutions should be terminated. Interest reipublicæ ut sit finis litium. The defendant would not -contend that any juror should find a verdict against his own convictions; and where twelve men are to agree, upon a verdict if they can, the fact that one of them does not agree with the rest, and that the others differ from him, is a fact which he can hardly fail to consider, if unanimity is to be obtained by conferring together, and not by the separate assertion of the original opinion of each, without reference to the views of the rest. Commonwealth v. Tuey, 8 Cush. 1.

But the objection which has been pressed upon our attention in the argument is not chiefly an objection to the doctrines stated by the presiding judge at the trial, as abstract propositions. The defendant contends that she was deprived of a fair trial, by an independent jury, because, under the circumstances which occurred at the trial, the conversation between the court and the jury must have had an undue influence upon one of the panel. If this appeared to be so, it would have been a good ground for a motion for a new trial. But we do not think that we can reasonably come to any such conclusion. If the same remarks had been made in the original charge to the jury, they would have been not only lawful, but highly appropriate. And although we think it was not expedient for the jury to make any communication to the court as to the opinion of a particular juror, or to intimate how they were divided in opinion, yet we do not see that, in this case, the statements were not made with the consent of all the jurors, or that there was any such misconduct of the jury as required the case to be taken from them without a verdict. No motion or application was made to the court to discharge the jury, or to give any further direction to them than was given. The rulings and instructions to which exceptions were taken were correct in matter of law, and we cannot perceive that injustice has been done to the defendant.

Exceptions overruled.