Page:Federal Reporter, 1st Series, Volume 10.djvu/283

 DOILE V. UNITED STATES. 2T1. �this paper was read in court.no objection was made by the plaintifE in error or his counsel to the openiug of the sealed envelope, nor to the reading of the verdict, but the counsel moved the court to have the jury polled, -which motion the court overruled and refused to allow the jury to be polled. This action of the court in thus re- ceiving this paper writing as the verdict of the jury and refusing to rllow.the jury to be polled is also assigned for error. �It is unnecessary to consider the various other errors assigned, as not much reliance was placed upon them by the counsel, and as, I think, they are untenable. There can be no doubt that the commu- nication of the judge to the jury was irregular and objectionable. The i instructions of the judge ought always to be in open court, in the presence of all the jurors and of the defendant. It is true that in cases of protracted deliberation by the jury it is sometimes difiicult and inconvenient to observe this rule ; and yet it is important that it should be followed, not that where it may be violated the fact would necessarily oblige an appellate court to reverse a conviction, but because there is always so much danger in giving these private instructions not open to the observation of counsel or of the parties. If there is nothing in instructions thus privately given prejudicial to the defendant, then an appellate court would not, perhapa, reverse. It is probable that the judge in this case may have inferred that the communication addressed to him was sent by the foreman, or at the instance of all the jury; and there was nothing objectionable in the law as.Jaid down by the judge; and, indeed, the judge had already given substantially the same instructions to the jury in open court. It was, no doubt, inadverfcently done, and nothing wrong was in- tended on his part, as is manifest from the memorandum he added to his answer, requesting that it might be preserved for the purpose of being subject to examiuation and criticism if the law warranted it. I doubt whether I should reverse this case merely in consequence of this irregularity of the judge, because I think it is not clear that it necessarily worked any prejudice to the plaiutifF in error. �On the second point, numerous authorities have been cited by the counsel for the plaintiff in error to show that the right exists on the part of a defendant in a criminal case always to poil the jury, whether the verdict be rendered in open court, or by being sealed under the direction of the court or with the consent of the parties. There ■can be no doubt that in most of the states, including Illinois, it is decided that it is the absolute right of a defendant in a criminal case, both upon an open verdict refadered in court and a sealed ver- ��� �