Commonwealth v. McCauley

156 Mass. 49 | Mass. | 1892

Field, C. J.

For aught that appears, the separation of the juror from his fellows may have been for a few minutes only, and the circumstances may have been such as almost of themselves to preclude the possibility that the defendant had been prejudiced by it. The presiding justice found, on inquiry of the juror and of the officer who went in search of the juror, that the defendant had not been prejudiced by the separation. It is true that neither was specially sworn to make true answers to such questions as the justice might put to them, but the defendant, through his counsel, at the hearing of the motion for a new trial, offered no evidence of any prejudice, and did not request the court to have the juror and the officer sworn and re-examined. In the absence of such a request, we think that the court had a right to consider the statements of the officer and of the juror. The facts stated in the exceptions are not, as matter of law, inconsistent with the finding of the presiding justice. Commonwealth v. Desmond, 141 Mass. 200. Chemical Electric Light Power Co. v. Howard, 150 Mass. 495. Exceptions overruled.