The defendant’s first objection is, not that the jury were allowed to separate after agreeing upon their verdict, etc., but that the permission to do so was communicated to them through the officer in charge of them, instead of their being so told by the presiding justice in open court. It is well settled that instructions to the jury upon the substance of the case must be given only in open court. Kullberg v. O'Donnell, 158 Mass. 405. Read v. Cambridge, 124 Mass. 567. It is also well settled that in criminal cases, not capital, as well as in civil cases, the jury may be allowed to seal up their verdict and separate, when they agree during an adjournment of the court, and may come in and affirm the verdict at the next opening of the court. Commonwealth v. Costello, 128 Mass. 88. By common practice, this permission has been given to juries after adjournment through the officer in charge, as was done in Chapman v. Coffin, 14 Gray, 454, and Commonwealth v. Carrington, 116 Mass. 37. In the latter case the point was taken that the court could not give such permission through the officer. We see no objection to this practice.
The next objection is that there was error in permitting the second separation of the jury, and that the verdict could not properly be received thereafter. But there was no' error in the course pursued by the presiding justice. Since by accident the *524foreman had left the verdict at home, it was desirable, if not necessary, to get it. This might be important to preserve even the defendant’s rights. The mere separation of the jury is not fatal to the rendering of a verdict. In the present case, obviously, the defendant was not prejudiced. Commonwealth v. McCauley, 156 Mass. 49. Chemical Electric Light & Power Co. v. Howard, 150 Mass. 495. Commonwealth v. Gagle, 147 Mass. 576. Commonwealth v. Desmond, 141 Mass. 200. Nichols v. Nichols, 136 Mass. 256. Verdict to stand.