In any case, whether of misdemeanor or of felony, not punishable with death, the jury may be authorized by the court, after the case is finally committed to them, to separate upon signing and sealing up a form of verdict, and to deliver their verdict orally upon the next coming in of the court; and the oral verdict may be received and recorded if all possibility of improper influence in the interval is precluded by conclusive evidence that it accords with the result which they had agreed upon and reduced to writing before their separation; but not otherwise. Commonwealth v. Durfee, 100 Mass. 146. Commonwealth v. Dorus, 108 Mass. 488. Commonwealth v. Carrington, 116 Mass. 37. Commonwealth v. Costello, 128 Mass. 88. The written form has of itself no weight or effect as a verdict. Commonwealth v. Tobin, 125 Mass. 203, 205, 207. The question in this case therefore is, Does it conclusively appear by the sealed form-of verdict that the jury before separating found the defendant guilty of the same crime of which they afterwards declared him to be guilty by their oral verdict in open court ?
An assault with a dangerous weapon is not indeed one of the aggravated assaults enumerated in the act concerning offences against the person. Gen. Sts. e. 160. But in the act defining the jurisdiction of police courts it is recognized as in its nature a higher offence than an ordinary simple assault. Gen. Sts. c. 116, § 13. And under an indictment for an assault with a dangerous weapon there may be a conviction of an assault without such a weapon. Commonwealth v. Burke, 14 Gray, 100. Commonwealth v. Lang, 10 Gray, 11. In the case at bar, the form of verdict signed and sealed up by the jury before separating shows no more than that they found the defendant guilty of an assault, and does not show that they found him guilty of an assault with a dangerous weapon. The oral verdict convicting him of an assault with a knife was therefore improperly received, and must be Set aside.