Commonwealth v. Brownell

W. Allen, J. It was proper for the counsel for the defendant to impress upon the jury their duty to acquit the defendant if his guilt was not proved by the evidence in the case, and to remind them that, whenever they should have a proper occasion to give a reason for acquitting the defendant, it would be sufficient to say that his guilt was not proved. The counsel had a right to present this thought in a logical or in a rhetorical form ; he was at liberty to dramatize it in imaginary dialogue, and to illustrate and enforce it by imaginary occasions. The counsel in his argument suggested an occasion on which the jury might be asked the reason why they acquitted the defendant, and the answer which they would give. The language put into the mouth of the jurors is entirely proper and unobjectionable; the impropriety, if any, must have been in the supposed occasion of uttering it. The supposed occasion was the inquiry by friends and neighbors of the jury why they acquitted the defendant, and the supposed impropriety must have consisted, either in the implied suggestion that the jury might have in mind the opinions of their friends and neighbors, or in the suggestion that the jury might at some future time state to their friends and neighbors the grounds of their verdict. Any attempt to influence a verdict by outside opinion and sentiment is improper, but an appeal to the jury not to be influenced by such opinions and sentiments is proper; and such appeal involves a recognition of the fact that the thought of such opinions may be in the mind of the jury. It is not an assertion of a fact, but the recognition of a possibility. There was no other suggestion of outside influences in the case at bar than was involved in warning the jury against them. We see no impropriety in the other suggestion involved, — that, if the defendant was acquitted for want of proof, the jury were at liberty to say, in answer to questions of their friends and neighbors, that the proof was not sufficient. Ho question of disclosing the secrets of the jury-room, or of calling a juror to account for his verdict, is involved. The suggestion is, that the juror may voluntarily and on his own account make a statement of the true grounds on which he rendered his verdict. It was made to influence the jury to render their verdict upon the evidence, without regard to the opinions of others. Whether the [324] exigencies of the defence called for such an appeal, and in what form it can be most effectively made, the court cannot know ; that' must be left to the discretion of counsel, within the limits of decorum and propriety, If a juror and his neighbor have, in common, information not in evidence, which satisfies them that the defendant is guilty, or if the jury know that the defendant is held to be guilty in common repute among their neighbors, it is still their duty to acquit him if the evidence does not prove him guilty. In such a case, the jurors could not but have in mind that outside knowledge and opinion, and it might be difficult for them to resist the influence of it, and to render a verdict solely upon the evidence. The reflection that they were not obliged to be forever silent, but could at some time explain that their verdict was rendered on the evidence before them, and not upon outside facts and opinions, might aid them in arriving at a true verdict, and would be proper for them to make; and we think that it is a consideration which counsel have a right to present to them. It was not for the defendant to show that the argument was particularly pertinent or applicable to his case. That is not matter of inquiry. It is not addressed to a known, but to a possible influence. The liability of the influence to exist, not its actual existence, makes the appeal proper. As the defendant had a right to make the argument in the form in which his counsel put it, and as the considerations he desired to present were proper to be presented to the jury, the defendant was aggrieved by not being allowed to pursue his argument, and by the practical ruling of the court that the consideration was not proper to be regarded by the jury. We do not find any other error in the rulings of the court. Exceptions sustained.