Kullberg v. O'Donnell

Field, C. J.

The presiding justice sent for the jury after the case had been committed to them, and they were brought into the court-room while the court was in session, and in open court the justice further instructed them “in the absence of counsel on both sides,” after which the jury returned a verdict for the defendant. The plaintiff’s counsel contends, as matter of law, that he is entitled to a new trial, because the jury were thus instructed in his absence. In Sargent v. Roberts, 1 Pick. 337 , 342, it was said: “No communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the *407 cause.” In Commonwealth v. Roby, 12 Pick. 496 , 518, it was said that the verdict was set aside in Sargent v. Roberts , “ on the ground that the practice then prevailing was improper, and that it was important that all instructions to the jury should be given in open court.” In Merrill v. Nary, 10 Allen, 416 , 417, it was said: “ The only regular and safe mode of conducting trials is, for the court to instruct the jury on all material points before they retire to deliberate upon their verdict, and, if they have occasion for further information, they should return into court and state the questions on which they wish for further advice, and receive in open court such directions as may seem to the judge material and necessary.” See Read v. Cambridge, 124 Mass. 567 . It is plain that the point decided is, that all instructions to the jury must be in open court. It is the duty of the parties or their counsel to be present in court while it is open, after the trial of an action has been begun until it is concluded, and the presiding justice cannot be prevented from giving further instructions to the jury because one or both of the parties or their counsel choose to absent themselves from the court while in session, and while the jury are deliberating upon the case. It may be a convenient practice to send for the counsel if they are near the court-house, in order that they may hear the instructions given and take exceptions if they see fit, but this is not required as matter of law, and the circumstances may be such as to render it impracticable.

Exceptions overruled.