Commonwealth v. Tripp , 157 Mass. 514 ( 1893 )

Barker, J.

It often occurs in trials that counsel have occasion to communicate, in the presence of the court and jury, with third persons, in order to obtain information to be used in framing questions to a witness under examination. If such communications are so made as to give to the jurors information which may affect their verdict, that course is improper. But the correction and the remedy are to be applied by the presiding justice, in his sound discretion, and the opposing party has no right to insist that the witness shall not be further examined upon that branch of his testimony. It does not follow from the statements of the bill of exceptions that in the present case the jury in fact heard the conversation between the district attorney and the person of whom the inquiry was made. The presiding justice had an opportunity to judge of his own knowledge whether or not the jury in fact heard, and he may have overruled the defendant’s objection because satisfied that the jury did not hear. But in any case he was not required to exclude the subsequent testimony of the witness, or to strike it out upon request. The proper remedy was an instruction to disregard what had happened, if it had come to their attention, and to consider only the actual evidence in the case; or a discharge of the jury, if, in the opinion of the presiding justice, what had happened was of such a nature that they must be influenced by it. The defendant did not ask for a discharge of the jury, and as no exception was taken in connection with the charge, it is to be presumed that all proper instructions were given.

Exceptions overruled.