Commonwealth v. MacLellan , 121 Mass. 31 ( 1876 )

Endicott, J.

The St. of 1863, c. 33, provides that “whenever any criminal case shall be on trial at the end of any term ” “such term maybe continued until such case is finished, and the jurors sitting in such case may be required by the presiding justice to serve until the same is concluded.”

We are of opinion that the words “ on trial ” in this statute are to be taken in their literal meaning, and that the case must be actually on trial before the court and jury at the end of the term. That is, if in any stage of the proceedings of a trial actually in progress at the time, between the empanelling of the jury and the rendition of a verdict, the end of the term is reached, and the trial cannot be concluded in the ordinary course of business during the term as established by law, in such case an adjournment may be had. The statute does not apply to cases in which at some previous time during the term trials have been begun, and suspended for other reasons, and which at the close of the term are not actually in progress of trial before the jury.

The case at bar does not come within this interpretation of the statute. The trial had been suspended two days before for other reasons. Another judge had come in, other business had intervened, and some of the jurors empanelled to try it had been engaged in the trial of other cases. The judge before whom alone the trial could prodbed was not present at the end of the term, and the case was not on trial at that time, within the meaning of the statute. Exceptions sustained.