Commonwealth v. Burroughs , 145 Mass. 242 ( 1887 )

Devens, J.

The Pub. Sts. c. 170, § 35, provide that the court shall, on motion of either party in a suit, examine on oath each person who is called as a juror therein on certain subjects, and adds, “ the party objecting to the juror may introduce any other competent evidence in support of the objection.” The inquiries thus provided for were, in the cases at bar, made by the presiding judge. The defendants then moved that certain other questions should be submitted to the jurors, as they stated, with a view to a challenge for cause in relation to their bias, which questions the judge declined to put. It would be sufficient in these cases to say that replies to the questions themselves, however answered, would not have afforded any reason to reject the jurors. It would have been necessary to supplement them by evidence that the league or association of which the jurors might admit themselves to be members had, through some of its agents, initiated, or was then conducting, the prosecution of the individual defendants. The defendants neither offered, nor did they by their motions, or by any suggestion, propose to offer such evidence.

We are not, however, disposed to rest the matter upon so narrow a ground.

While the statute permits, after the statutory questions have been propounded, the party to a suit to introduce any other competent evidence, it was not intended to give him the right to submit the juror to an inquiry in the nature of a cross-examination, in order to ascertain if he could not thereby elicit something tending to show bias or prejudice on the part of the juror. The other competent evidence which he may of right introduce is that obtained from other sources than from an examination of this character. Undoubtedly the presiding judge, if he deems it desirable in determining whether a juror stands as impartial, may himself examine or permit an examination of the juror beyond the inquiries provided for expressly by the statute; but beyond these statutory provision's the whole matter of such examination is left to his sound judgment and judicial discretion.

The trials in the cases at bar occurred before the passage of the St. of 1887, c. 149.^* It. is unnecessary to consider how this statute will hereafter affect similar examinations.

Exceptions overruled.

* This statute, which took effect on October 1, 1887, enacts that “the examination of jurors provided for by” the Pub. Sts. c. 170, § 35, “ may be made by the parties or their attorneys under the direction of the court.”