Page:Federal Reporter, 1st Series, Volume 10.djvu/285

 DOYLE V. UNITED STATES. 273 �been rendered ; and it ia insisted that to try him again 'will be to put him twice in jeopardy, contrary to the provisions of the constitution. That motion I shall overrule. He conseuted to roeeive a sealed ver- dict; that verdict was received, not under circumstances to make it such a verdict as to warrant an appellate court in sustaining a con- viction upon it, but it cannot be regarded as placing the plaintifi in error twice in jeopardy because he bas to be tried again. There was not the regularity upon which he had a right to insist in this verdict; but the government, I think, bas the right to claim that he shall be tried again; and the only effect of the reversai of the action of the district court will be that a new jury must corne to try the indictment, and, as the counsel agree that the trial may be in this court, it will be 80 ordered. Section 3, act March 3, 1879. �NOTE. �Ireegttlab (Communications feom Court. That all communications with the jury should be in open court, in presence of counsel, is well settled : Sargent v. Roberts, 1 Pick. 337 ; Corn, v, Ricketson, 5 Metc. (Mass.) 412 ; Hall v. State, 8 Ind. 439 ; O'Connor v. Guthrie, 11 lowa, 80 ; Hoherg v. State, 3 Minn. 262; Crawford v. State, 12 Ga. 142; State v. Frishy, 19 La. Ann. 143; State V. Aleosander, 66 Mo. 148; Witt v. State, 5 Cold. (Tenn.) 11; Taylor v. State. 42 Tex. 504; JETolton v. State, 2 Fia. 476; State v. Ladd, 40 La. Ann. 271. �To receive a communication from the court they should be brought into court as a body: Fisher v. People, 23 111. 283. See, as to practice, Hulse v. State, 35 Ohio St. 421 ; Buntin v. State, 68 Ind. 38. The presumption is that communications made by the court to the jury, in contravention of these rules, are important, until the contrary is proved, though, if manifestly trivial, they will be regarded as giving no ground for revision ; but if prima faaie mate- rial, it must be shown, in order to meet exceptions taken to their delivery, that they were actually and necessarily inoperative, as when they consist merely in a reference to a charge already made in the presence of counsel on both sides in open court. See Bedman v. Gulnae, 5 Cal. 148. Even a designation of particular statutes is a communication which, if made privately, may vitiate a verdict : State v. Patterson, 45 Vt. 308 ; see Proffat, Jury Trial, § 348. And 80 of a reference by the judge to a prior charge by him to the grand jury : Holton V. State, 2 Fia. 476. And of the reading by the jury of an imperfect report of the judge's charge to themselves : Farrer v. State, 2 Ohio St. 54. �But the Inadvertent discovery by the jury, among the papers left in the court-room when they were deliberating, of the judge's notes, will not set aside a verdict when it appears that either the notes were not read, or, if read, they could have had no legitiraate effect on the jury : Chapman v. Railroad, 26 Wis. 295. And mere trivial communications cannot be regarded as having any efEect: Sali v. State, 8 Ind. 439. This has been held to be the case where the judge returned an application for further instructions v.'ithout reply, v.lO,no.2— 18 ��� �