Commonwealth v. Slattery , 147 Mass. 423 ( 1888 )

W. Allen, J.

The court rightly refused to give the instructions requested. The injured party could not condone the máme by excusing or forgiving the criminal.

In civil cases, and in criminal cases not capital, the court can permit a jury, after they have agreed upon their verdict, to separate before rendering the verdict in court. In civil cases, the verdict being in writing, is made before the jury separate, and afterwards affirmed by them in court; in criminal cases, the verdict must be rendered orally in court, but it must appear to be the verdict which the jury had agreed upon before they separated. The usual practice is to instruct the jury to bring in a sealed verdict, which is opened and read by the clerk in open court, after which, in civil cases, the written verdict is filed and affirmed by the jui-y, and in criminal cases an oral verdict is taken in the usual form. The purpose of the written statement in criminal cases is to make it plain that the verdict rendered is the one which the jury had agreed to render before they separated, and the purpose of directing it to be sealed up and delivered unopened to the court is to identify the writing. Commonwealth v. Carrington, 116 Mass. 37. Commonwealth v. Tobin, 125 Mass. 203. Commonwealth v. Costello, 128 Mass. 88. Commonwealth v. Walsh, 132 Mass. 8.

In the case at bar, the jury were instructed to reduce their verdict to writing, and to sign it by their foreman, and to bring it with the indictment in a sealed envelope into court the next morning. Instead of bringing into court a verdict on a separate piece of paper enclosed with the indictment in a sealed envelope, they brought in the indictment with the verdict written upon it in an unsealed envelope. The instruction to seal up the envelope was not a condition upon which the jury were authorized to separate, but a direction as to the manner of preserving the papers and the evidence of their doings, a literal compliance with which was not necessary to give the court jurisdiction to receive the verdict. The question was not whether the jury had in every particular precisely followed the instructions given to them, but whether the paper handed by them to the court sufficiently identified itself as the paper signed by the foreman before the jury separated. The writing upon the indictment handed in by the jury in an unsealed envelope would identify itself as surely as a writing upon a separate piece of paper in a sealed envelope. The writing was presented by the jury to the court as the verdict agreed upon and signed before the jury separated, and the fact that it was written upon the indictment was sufficient to identify it. We need not consider whether it would have been sufficient had the writing been separate from the indictment, nor whether, if unsufficient, it could have been aided by verbal statements of the jurors.

Exceptions overruled.