
    Commonwealth vs. Parker H. Barry.
    The omission of the judge to reduce to writing his instructions in a criminal case and file them with the clerk before the jury retire to deliberate on their verdict is no ground for setting aside a verdict of guilty, if the defendant did not request him to do so and has sustained no injury by the omission.
    Indictment for keeping and maintaining a tenement in School Street in Boston, used for the illegal sale and illegal keeping for sale of intoxicating liquors.
    At the trial in the superior court, before Vose, J., instructions were given to the jury which were not excepted to. The judge did not reduce to writing the instructions so given to the jury before they retired to deliberate on their verdict, and did not file them in the case. The jury returned a verdict of guilty, and immediately thereafter the defendant’s counsel requested the court to show him the instructions given to the jury. The judge informed him that they were not in writing, but that he would vut them in writing and hand them to the counsel if he desired it, to which the counsel replied that he would not trouble the court so far. The defendant thereupon moved for a new trial, on account of the omission to reduce the instructions to writing and file them in the case. This motion was overruled, and the defendant alleged exceptions.
    
      E. K. Phillips, for the defendant.
    Reed, A. G., for the Commonwealth.
   Bigelow, C. J.

It is not contended that the instructions given to the jury in this case are not correctly and fully stated in the exceptions, or that they are in any respect defective or erroneous. The mere omission of the court to reduce them to writing and file them with the clerk before the jury retired to deliberate on their verdict, as required by St. 1863, c. 180, § 1, has worked no harm or prejudice to the defendant. He is not, therefore, aggrieved by the failure of the judge to comply with the strict letter of the statute, and has no ground whatever for exceptions. It is not the province of the defendant to assert or maintain a rule of law where the omission to observe it has been the cause of no injustice towards him.

Exceptions overruled.  