
    Commonwealth vs. John C. Best.
    Essex.
    May 19, 1902.
    June 3, 1902.
    Present: Holmes, C. J., Knowlton, Morton, Lathrop, & Loring, JJ.
    
      Practice, Criminal, New trial, Exceptions.
    The refusal of the judges who presided at a murder trial to grant a new trial, asked for on the ground that one of the jurors was deaf, the judges stating that they are satisfied that the juror heard substantially all the evidence, is not the subject of an exception and should not be brought before this court.
    Indictment for the murder of one George E. Bailey, returned January 25,1901.
    The decision of the court overruling the exceptions in this case is reported in 180 Mass. 492.
    
      N. E. A. Clarke, (J. R. Sisk with him,) for the defendant.
    
      W. S. Peters, District Attorney, for the Commonwealth.
   Holmes, C. J.

After the exceptions in this case were disposed of, a motion for a new trial was made on the ground that one of the jurors was deaf. Evidence was put in upon the subject before the judges who had taken part in the trial, a portion of the evidence being an examination of the juror himself. The motion was denied, the judges stating that they were satisfied that the juror heard substantially all the evidence. The argument addressed to us is a pure argument of fact as to what the proper finding would have been, a question with which we have nothing to do and upon which the judges considered not merely the testimony reported but what they saw at the trial, as it was proper that they should. Assuming every proposition of law that could be urged in favor of the defendant, there is no ground for an exception.

After the first motion had been overruled, another motion was made that the hearing be reopened and the defendant allowed to introduce further evidence, cumulative in character, being the testimony of a doctor who had been consulted by the juror a little more than three months before the trial. The judges refused this motion on the ground that the doctor’s statement did not change their opinion. The defendant’s counsel again attempted to save an exception. Apart from what else might be said, the same answer may be made to this as to the other exception. It is perfectly plain that the defendant had no ground for bringing his case here a second time.

Exceptions overruled.  