Commonwealth v. Durfee

On the trial of an indictment for adultery, evidence of the criminal act may be corroborated by evidence of previous acts of familiarity between the defendant and his paramour, such as walking and sitting together many times alone. On the trial of an indictment, if the jury, after the case has been committed to them an ■ they have retired, are allowed, during an adjournment of the court, to disperse, by direc tian of the judge, upon stating to the officer that they have agreed on and sealed up a verdict, and upon coming into court after such dispersion render a verdict orally without the sealed verdict being opened and read in court, their verdict so rendered is invalid.

Indictment for adultery with Esther Haskins., Trial in the superior court, before Brigham, J., who allowed a bill of exceptions of which the following are the material parts: Samuel B. Bumpas, a witness for the Commonwealth, after testifying tó seeing the performance of the criminal act at a particular place on his farm, was allowed, against the defendant’s objection, to testify further as follows : “ I have seen the parties walking and sitting together many times at various places on my farm when no other person was with them. I have seen them sitting together under the trees. I have seen them go in the direction of this place. I should think they were not relations.” There was no statement in the bill of exceptions of the time to which the testimony quoted had relation; whether before or after the criminal act testified to, or both before and after it. “ The jury retired at about eight o’clock on the evening of the day of the trial, and by direction of the presiding judge were allowed to disperse, by the officer having them in charge, upon the following morning at about one o’clock, when they had given notice to said officer that they had agreed upon and sealed up their verdict. At nine o’clock on the same morning they came into court and rendered an oral verdict of guilty. The contents of any paper sealed by them were not made known to the defendant or his counsel; and no sealed verdict was produced or opened. Neither the defendant nor his counsel had notice of the direction of the judge that the jury should be allowed to disperse upon agreeing and sealing up their verdict, or consented to such dispersion; and before they rendered their verdict the defendant’s counsel objected to the taking and recording of it, on the ground and only on the ground that they had separated without his consent and contrary to law.”