Opinion
No. 3720.
Decided April 6, 1948.
Whether a message transmitted by the sheriff to a jury constituted such an interference with their deliberations as to render the trial unfair presents an issue of fact for the Trial Court.
TRESPASS for assault and battery. Trial by jury and verdict for the plaintiff. After the verdict was rendered, the defendant moved that it be set aside because of a message delivered to the foreman of the jury by the sheriff, ostensibly from the Trial Judge. According to the testimony of the sheriff, about 25 minutes to half an hour after the jury had retired, "they rapped at the door and the foreman said that we disagree . . . and I told the Judge that the jury said that they disagreed." Thereafter the sheriff told the foreman of the jury that he was instructed by the Judge to tell the jury that "there was a long night ahead and we have some soft cots, and to get to work. That was the end of the conversation." The defendant, in his motion, alleged that "said statements to the jury had the effect of substituting coercion for deliberation and judgment, and were made without legal sanction, against the law, and resulted in a verdict by the jury based on fear and coercion and unfairly prejudicial to the defendant." Upon this motion the Court made an order as follows: "Verdict set aside; new trial ordered." Thereafter the plaintiff filed a petition for reconsideration of the Court's order setting aside the verdict and granting a new trial, and requested the Court to call the jury before him for oral examination so that it might be established that their verdict was not based on fear and coercion. Accordingly the jury was recalled and all members thereof were interrogated by the Court. Thereafter the Court made the following order upon the plaintiff's petition for reconsideration: "Petitions . . . denied after consideration of the evidence received in the oral examination of the jury," and the plaintiff excepted.
Transferred by Goodnow, C.J.
Buckley Zopf, for the plaintiff, furnished no brief.
Jacob M. Shulins, for the defendant, furnished no brief.
This record presents no question of law for us to consider. The case is closely analogous to Brown v. Smith, 89 N.H. 133, where a deputy sheriff who had been a witness in a case, was placed in charge of the jury. We there said: "The motion to set aside the verdict presented typical questions of fact for the Presiding Justice to pass upon such as the Trial Court is constantly called upon to decide. . . . The decision of the Presiding Justice upon such issues will not be reviewed here, and is final if there is evidence to sustain it." Id., 134.
In the present case the question whether the message transmitted by the sheriff to the jury constituted such an interference with their deliberations as to render the trial unfair, was for the Trial Judge to decide, and we cannot say that his decision was error.
Exceptions overruled.
All concurred.