People v. Mahoney

Pateeson, J. The defendant was charged with the murder of one John H. Lannon on or about the nineteenth day of February, 1838, and the jury found him guilty of manslaughter.

After the jury had retired to deliberate upon their verdict, they requested through the deputy sheriff that a certain coat, alleged to have been worn by the deceased at the time of the killing, should be sent into the jury-room for their inspection. The transcript certified by the judge states that the coat “was the one which had [531]been produced and examined in open court during the examination of the witnesses Carpenter and Lannon, and at said time exhibited to the jury. .After the retirement of the jury the officer in charge of the jury informed the trial judge that the jurors had expressed a desire to see the coat. The court informed counsel, in the presence of the defendant, that the jurors had requested that the coat be sent into the jury-room for their inspection. Thereupon defendant’s counsel stated that the coat had not been formally offered in evidence. In response to that suggestion the court said that if the coat was not in evidence, the jurors would have to get along without the coat. Counsel for defendant thereupon, after a moment’s reflection, and in presence of the defendant in open court, consented that the coat might be submitted to the jury. Thereupon the package containing the coat and other clothes, said to have been worn by deceased at the time of the homicide, was produced in open court, in view of counsel and defendant, and the contents examined, and the officer, without any objection whatever, was allowed to take the coat into the jury-room. At the same time defendant’s counsel objected to the officer’s taking the blood-stained collar, said to have been worn by the deceased, and the court directed said officer not to take such collar, and it was not taken to the jury-room.” The articles sent to the jury had been examined before the jury, and identified as the clothing worn by deceased at the time of his death. As stated by counsel for the defendant, when the proposition was made to send them to the jury, while they were deliberating upon their verdict, the articles “had not been formally offered in evidence.” But the clothing had been exhibited to the jury, and referred to by the witnesses on the stand. The consent of counsel for defendant, in the presence of the defendant, that the articles might be sent to the' jury, was a waiver of all [532]