The court may send written instructions to the. jury without notice to counsel when the court is not in session (Shapley v. White, 6 N.H. 172, School Dist. v. Bragdon, 23 N.H. 517, Bassett v. Salisbury Manf. Co.,28 N.H. 438, Allen v. Aldrich, 29 N.H. 63), and no reason is suggested why instructions in open court are more objectionable than those given in writing during a recess. We are aware that it is the general practice to send for counsel, when known to be within call, but there is no rule requiring it. Florence Sewing Machine Co. v. Grover Baker Sewing Machine Co., 110 Mass. 70, 81; Chapman v. Chi. N.W. R. Co., 26 Wis. 295. In this case those within reach would have been called in if their absence had been observed, and there is no reason to believe that the result was affected by their absence.
Were the instructions objectionable in substance ? The defendant suggests that the court, in effect, told the jury that they should weigh the opinions of the majority and see if they were right; that this remark was equivalent to telling them that the opinions of the majority were evidence: but we cannot adopt this view. The word weigh, taken in connection with the other parts of the charge, is used in the sense of consider, examine, and not in the sense of give weight. The meaning of this instruction was, that if any of the jurors found themselves differing from the majority, they should more closely scrutinize the evidence for the purpose of determining whether their own opinions were correct. It cannot be expected that a jury, hearing evidence, with no opportunities or facilities for writing it down, obliged to trust to their memories for it and to draw inferences and conclusions from it, should at first be unanimous. Unanimity can only be secured by a consideration by each juror of his own views along with those of his fellows. If the juror cannot doubt the correctness of his own opinions when he finds they differ from those of his fellows, a verdict could never be reached. The object of all trials is to discover the truth, and this requires deliberation and a proper consideration by each juror of the opinion of his associates on the panel. The instructions given by the court in this case contain an impartial exposition of the duties of jurors, and are unobjectionable. There is no evidence that the defendant was prejudiced or that injustice was done by the verdict. Com. v. Tuey, 8 Cush. 1; Allen v. Woodson, 50 Ga. 53; Pierce v. Rehfuss, 35 Mich. 58.
Judgment on the verdict.
CLARK, J., did not sit: the others concurred. *Page 477