360 Mass. 848

September 30, 1971

There was a verdict for the defendant in this action of tort based on injuries received by McKenna, a police sergeant, in a motor vehicle collision. McKenna's attorney filed a motion for a new trial on various grounds including alleged misunderstanding or disregard by the jury of the judge's instructions and jury prejudice against McKenna. The motion was supported by an affidavit of McKenna's counsel concerning a conversation after the verdict with a woman juror in which she revealed (a) jury prejudice against McKenna because he was a police officer, and (b) that she, and perhaps other jurors, had received information, not introduced at trial, about his financial resources. The trial judge, although he stated that he believed the affidavit, denied the motion. There was no error. So far as the motion was based on matter in the judge's charge to which no exception was saved at trial, the motion was without merit. The motion, with respect to alleged general prejudice of jurors against police officers and McKenna, was addressed to the judge's discretion. That discretion was not abused. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 61. Pearlin v. Farrell, 356 Mass. 741. There was no "palpable miscarriage of justice" comparable to that considered in Sharpe, petitioner, 322 Mass. 441, 445. Our authorities establish that affidavits of jurors, or concerning their noncorrupt conduct, motives, and prejudices (as revealed in their deliberations), if received at all, should be viewed with caution. Murdock v. Sumner, 22 Pick. 156, 157. Shears v. Metropolitan Transit Authy. 324 Mass. 358, 361-362. See Wigmore, Evidence (McNaughton rev.) Sections 2349, 2353, 2354; esp. pp. 685, 706-707.

Exceptions overruled.


360 Mass. 848

October 1, 1971

The defendant appeals under G. L. c. 278, Sections 33A-33H, from conviction on an indictment charging him with making a battering ram with the intent that it be used to commit the crime of trespass. G. L. c. 266, Section 49. We upheld the indictment on a prior appeal by the Commonwealth. Commonwealth v. Krasner, 358 Mass. 727. (1) We decline to reconsider that decision. (2) There was no error in the judge's ruling that a juror was not disqualified by virtue of her marriage to a police officer. G. L. c. 234, Section 28. See Commonwealth v. French, 357 Mass. 356, 400-401. Cf. Commonwealth v. Stewart, 359 Mass. 671, 677. (3) There was no error in the denial of the defendant's motion for a directed verdict. Trespass to a particular office could be a crime under G. L. c. 266, Section 120, even though the defendant was given lawful access to other parts of the building, and there was evidence from which the jury could infer that the defendant intended that the battering ram made by him be used to

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commit the crime of trespass either by unlawful entry or by unlawfully remaining. Commonwealth v. Richardson, 313 Mass. 632, 637, 640. Commonwealth v. Krasner, 358 Mass. 727, 731, n. 6. (4) The judge read to the jury sixteen instructions requested by the defendant. Some of those instructions were ambiguous and confusing; arguably some were incomprehensible or inconsistent with each other. The defendant moved for a new trial on the ground that the verdict was contrary to the instructions so given, and now claims that those instructions became the law of the case, citing Tompkins v. Quaker Oats Co. 239 Mass. 147, 150, Lapp Insulator Co. v. Boston & Maine R.R. 330 Mass. 205, 211, and Note, 40 Col. L. Rev. 268, 274. The instructions, taken as a whole, were not so confusing as to deny the defendant a fair trial. There was evidence from which, in the language of the instructions, the jury could infer that the defendant specifically intended the battering ram "to be used to break into the president's office," as it was in fact used, that "he also had the intent that it be used to commit the offense of remaining unlawfully," and that "he intended the instrument to be used to commit the offense of unlawfully remaining in a building."

Judgment affirmed.