187 Mass. 496 | Mass. | 1905
The questions in this bill of exceptions arose upon a motion for a new trial, the important grounds of which were that a juror sitting in the case had been convicted of a scandalous crime and was not of good moral character. On these grounds the verdict was set aside. The plaintiff excepted to the refusal of the presiding judge to make four rulings requested, of which the first two were, in substance, that upon the motions filed and the affidavits in support thereof and the evidence the defendant was not entitled to a new trial. The third became immaterial, because the judge found in favor of the plaintiff upon the part of the motion to which it related. The fourth was that the defendant was not entitled to a new trial because the affidavits were filed too late. This exception was not argued.
1. The affidavits sufficiently averred that the disqualification of the juror was “ unknown to the defendant or its attorney before the juror was called, sworn or served,” and they warranted a finding that neither the defendant nor its attorney were in fault in not making an objection to him before the verdict. In appealing to the discretion of the court, it was not necessary to aver or prove that they made inquiry or investigation in regard to the juror before the trial. The facts that he had worked as a laborer upon the streets and in the yard for this defendant which employs many hundreds of men, and that a witness in the case was at one time the foreman under whom he worked, do not show neglect on the part of the defendant or its attorneys in failing to know his character.
2. It was proper, under Rule ^1 of the Superior Court, for the judge to hear the motions on affidavits, with or without additional oral testimony. Borley v. Allison, 181 Mass. 246, 250. Spaulding v. Knight, 118 Mass. 528.
3. Convictions of crime properly could be shown by docket entries if the records had not been extended. Commonwealth v. Meehan, 170 Mass. 362, 363, 364. See DeMontague v. Bacharach, ante, 128, 133. Moreover these docket entries were received
4. The records showed eight cases against the juror in the criminal sessions of the Superior Court for Suffolk County, covering several years, in most of which he had been convicted and sentenced to imprisonment. They also showed twenty-eight criminal prosecutions against him in the Municipal Court for the City of Boston, covering altogether a period of more than twenty-three years, in all of which he had been convicted, and in many of which he had been sentenced to imprisonment. The latest sentence to imprisonment was imposed less than thirteen months before this trial. The judge hardly could do otherwise than find that he was not of good moral character and was not qualified to serve as a juror.
Upon the facts of this case the defendant was not entitled as matter of law to have the verdict set aside; but the judge well might allow the motion, in the exercise of his discretion. Commonwealth v. Wong Chung, 186 Mass. 231. It was a case appealing with peculiar force to the discretion of the court, and the judge properly might find that the failure to have a panel of twelve qualified jurors, and the participation of this disqualified person in the decision of the case, were an injustice to the defendant which called for a new trial. His decision upon a question of this kind is not subject to revision in this court. Shea v. Lawrence, 1 Allen, 167. Behan v. Williams, 123 Mass. 366. Commonwealth v. White, 147 Mass. 76; S. C. 148 Mass. 429. Perry v. Shedd, 159 Mass. 200. Freeman v. Boston, 178 Mass. 403.
Exceptions overruled.