Nichols v. Nichols , 1884 Mass. LEXIS 76 ( 1884 )

C. Allen, J.

The release of the inchoate right of dower in the mortgage was a good consideration for the promissory note. Sykes v. Chadwick, 18 Wall. 141. Holmes v. Winchester, 133 Mass. 140. The other rulings requested were rightly refused.

On the motion for a new trial, the presiding judge found as a fact, that the officer acted in entire good faith, and that the defendant was in no way prejudiced by his acts. Motions for a new trial are addressed to the discretion of the presiding judge. Boston v. Robbins, 116 Mass. 313. Woodward v. Leavitt, 107 Mass. 453,460. His determination upon the matters of fact is not open to revision by us, nor is his decision overruling the motion, unless, as matter of law, he was required, upon the facts found, to set aside the verdict. Brady v. American Print Works, 119 Mass. 98, and cases cited. No other question is presented to us by the report in this case. In Commonwealth v. Roby, 12 Pick, 496, which was an indictment for murder, the decision related only to cider, the use of which by the jury was held not to be a cause for granting a new trial; and it was stated, as the result of the authorities then brought to the attention of the court, that, where ardent spirits have been used by the jury, it is proper to set aside the verdict. Since that decision, the question has often arisen in other jurisdictions, and the preponderance of modern judicial opinion seems to be that taking spirits in moderate quantities as a beverage is not necessarily regarded as a legal cause for a new trial, unless it is shown that it operated injuriously. Many cases upon this subject are referred to by counsel, and others are collected in Whart. Crim. Pl. & Pr. §§ 731, 841. However this may be, we do not think the rules of law imperatively require us to hold that it is a legal cause for setting aside the verdict, .where a juror, who is seized with a sudden temporary indisposition, without the intervention or knowledge of either party to the suit, obtains and uses, merely for the relief of his disease or pain, a small quantity of spirits, and where it appears that he is not thereby disqualified for the due performance of his duty as a juror.

The question of the effect of the introduction of the physician into the jury-room, for the purpose of giving medical aid and relief to the juror, who appears to have stood in pressing need thereof, is not free from difficulty. It is, however, obvious that a merely temporary attack of sickness, though it may for the time being incapacitate the juror, is not a necessary ground for the discharge of the jury. It is proper, when the circumstances will admit, to await the result, and see if within a reasonable time he so far recovers as to enable the trial to proceed, or a verdict to be returned. If such sickness is brought to the attention of the court while the jury are deliberating on their verdict, and medical attendance appears to be necessary, the better way ordinarily would seem to be for the court to select a suitable physician, and to caution him in advance not to enter into any conversation with any of the jury upon the case, or upon any matter except such as may be directly connected with the needed relief for the disorder. The court must have the power, in its discretion, to allow suitable and necessary medicines and medical attendance to be furnished to the jury, and, indeed, it is its plain duty to see to it that such are furnished in case of urgent need. In the present case, the judge was not accessible at the time, but nothing appears to have been done differently from what might well have been ordered by him. The officer and the physician were both competent as witnesses to testify to the extent of their communications with the jury. There is no reason to suppose that either of them said anything to any juror which in any way bore upon the case under consideration; or that the course of substantial justice was to any extent perverted or disturbed by what occurred. This was a matter which it was especially for the presiding justice to investigate. We cannot say, as matter of law, that a new trial must necessarily be granted. It is not as if there had been a voluntary and gratuitous intrusion upon the deliberations of the jury, for the purpose of taking part therein or of listening thereto, with a submission on the part of the jury to such intrusion, so that their deliberations were voluntarily conducted by them in the presence of an unauthorized person, as was the ease in People v. Knapp, 42 Mich. 267, 269. In the various emergencies which are liable to occur in the course of a protracted trial, irregularities must occur sometimes. While the court will always seek to guard against them, and especially to keep the jury as far as possible from all influences which can cast a suspicion upon the integrity of their verdict, it nevertheless ought not to be swift to grant a new trial on account of irregularities not attended with any intentional wrong, and where it is made satisfactorily to appear that the party complaining has not and could not have sustained any injury from them. People v. Ransom, 7 Wend. 417, 424. 1 Bish. Crim. Proc. § 1277, and cases there cited.

Judgment on the verdict.