Page:Federal Reporter, 1st Series, Volume 10.djvu/286

 27e ���rBDEBAL BBPOBTEB. ���directing the oflacer to hand a volume of reports to the foreman, and request ing him to read a decision to the eflect that the judge can only communicate with the jury in open court: Com. v. Jenkins, Thach. Crim. Cas. 118. And so where a case, as to the importance of jurors haririonizing, was sent to the jury : /Sftoie V. Pike, 65 Me. 111 ; and where a part of the evidence was read by the court to the jury In the absence of the defendant and his counsel: Jacksoti v. Co7n. 19 Grat. 656, �PoLLiNG JuEY. In clvll cases the polling of a juiy is generally conceded to be at the discretion of the court: Proffat, Jury Trials; Byme v. Grossman, 65 Pa. St. 310. In Massachusetts it is held to be discretionary with the court in criminal as well as in civil cases to grant an application for polling: Com. V. JRoby, 12 Pick. 496; Com. v. Costley, 118 Mass. 1. The practice in New England is only to grant the application when there is some ground laid, and the assent of the jury individually to the appeul of the clerk, "and so you say all," is regarded as giving a sufFicient assurance of the assent of all the jurors: Fellow's Case, 5 Greenl. 333. In several jurisdictions, however, it is held that the defendant has a right to have the polling ordered: U. S. r. Pot- ier, 6 McLean, 182 ; People v. Perkins, 1 Wend. 91 ; Fox v. 8mith, 3 Cow. 23 ; Sargent v. State, 11 Ohio, 472 ; Wright v. State, 11 Ind. 569 ; State v. Austin, 6 Wis. 205; Nornayue v. People, 1 Breese, 111; State v. John, 8 Ired. 330; State V. Tming, 77 N. G. 498; State v. Allen, 1 McC. 525; Tilton v. State, 52 Ga. 478. �But where the jury have been called upon to Indicate their approval of the verdict as given by the foreman, and where they have given their assent, polling is an unnecessary cumulation of form. It should only, as principle, be required either (1) when there is no such distinctive appeal to the body of the jury as is the case when the clerk says, " and so you say all ;" or (2) when there is some doubt as to the reply of the jurymen; or (3) when polling is made requisite by statute: See U, S. v. Bridges, U. S. Cir. Ct. Ala. 1879, where it was held by Judge Bruce that there could be no polling on a sealed verdict; and see criticisms in 1 Crim. Law Mag. 7 ; 1 Southern Law J. (N. S.) 9 ; and 10 Cent. L. J. 1. �So far as concerns the last point there can be no question as to the propri- €ty of Judge Drummond's ruling. A sealed verdict cannot be proper^y ren- dered by being left with the clerk and opened by him in the absence of the jury. The verdict must be brought by the jury into court and opened in their pres- flnce. Z7. S. v. Potter, 6 McLean, 182; Wright v. State, 11 Ind. 569; Martin v.Morelock, 32 111. 485; Fisher v. Peojile, 23 111. 285; Stewart v. People, 23 Mich. 63. Feanois Whaeton. ��� �