O'Mara v. Commonwealth , 75 Pa. 424 ( 1874 )

The opinion of the court was delivered, May 11th 1874, by

Agnew, C. J.

It is unnecessary to discuss in this case more than a few of the twelve assignments of error. Of the three relating to the challenges of the jurors, that of H. N. Tingley for cause, raises the only serious question, and this we think is disposed of, against the prisoners, by the principles ruled in the case of Staup v. The Commonwealth, at the last term in Pittsburgh (24 P. F. Smith 458). It was there said that the opinion which should exclude a juror, must be one of a fixed and determined character, deliberately formed and still entertained; one that in an undue measure shuts out a different belief. This it was said is a prejudgment, and constitutes a bias too strong to make the juror a fair and impartial judge. It was held, therefore, that when the opinion of the juror has been formed upon the evidence given in a former trial, or where his opinion of the prisoner’s guilt has become a fixed belief, it would.be wrong to receive him. On the other hand, when his opinions or impressions are founded upon rumor or reports, or even newspaper statements, which the juror feels conscious he can dismiss; when he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, and freed from the influence of such opinions or impressions, he ought not to be excluded. The reasons, indeed absolute necessity, for settling upon this middle ground in the selection of jurors, were stated at large in that case, and the distinction was fully set forth between a prejudgment, and also an opinion formed upon the evidence, which necessarily exclude an impartial consideration of a cause, and those imperfect opinions and floating impressions derived from sources known to be unauthentic, and to be liable to be removed by the evidence in the cause itself. Taking all that the juror Hugh N. Tingley said in his examination, his opinion fell into the latter class. It was not a prejudgment, or an opinion made up from evidence known to be authentic and such as would be given in the trial; but it was one founded only on hearsay, and ready to give way to the truth as it would appear in the evidence. He said he had read accounts of this matter in the papers. Heard it talked about some. Formed an opinion he thought. That opinion would follow him into the jury-box, if he had no evidence against it. Would influence him if he had no other evidence. The remainder of the examination in chief is but a repetition of the same thought. In his cross-examination, he said he had not formed an opinion from what he had heard, that would influence him, unless the evidence sustained it. And in reply to a question of the judge, whether he could enter the jury-box and decide the guilt or innocense of the prisoners upon the evidence, and that alone, uninfluenced by any impression or opinion he had formed; he said he could, and that the opinion would not influence or bias his judgment. This case presents a test of the principles laid down in Staup v. The Commonwealth; and we must either ^recede, and go back to the practice of an age when ignorance of passing events constituted a characteristic of the times, and exclude every juror who has formed any opinion, even the slightest; or we must stand abreast with the present age, when every remarkable event of today is known all over the country to-morrow, and exclude those only whose opinions are so fixed as to be prejudgments, or have been formed upon the known evidence in the cause. It is needless to say the world moves and carries us with it, and if we lag behind we must commit the trial of the most important causes in life to those, so ignorant, their dark minds have never been smitten by the rays of intelligence. It may be well to remark while on this subject, the proper practice is.to examine jurors upon their voir dire as to the opinions they have formed. The tendency is to exaggerate their opinions, to escape serving in capital eases.

The fourth assignment of errorwas pressed strongly by the counsel, but we think in a misapprehension of the true tendency of the offer, which was to show what quantity of blood would probably flow from the body of a well developed and plethoric girl of thirty years of age, who had been killed suddenly by numerous incised and lacerated wounds. The purpose was not to permit the witness, as an expert, to give an opinion upon a hypothetical case based upon the supposed truth of his previous statement; but it was to state a fact known to him as an expert, which bore upon other facts proved. On the morning of the 27th of September 1873, the body of Mary O’Mara, the deceased, was found beside the railroad, near to the Montrose depot, several miles away from her home. No blood was found near the body or on the iron rails. But at her home, where she was known to be on the night before, much blood was found, and it was traced along the road toward the depot. The quantity of blood likely to flow from the body of a girl such as described in the offer, therefore, had some bearing upon the place where the death actually happened; and -whether it was likely it occurred near the depot, and by being run over by a train of cars.

The seventh assignment alleges error in admitting the testimony of Thomas Killea, of what Daniel O’Mara’s wife said to him at the Montrose depot, to wit: “ I saw Dan O’Mara’s wife when she came ; she said to Daniel if she had been at home this would not have happened; Dan made no reply to this.” It is objected that the wife’s declarations ought not to be heard against her husband ; and also that the declaration to him and his want of reply, tends to an unfavorable inference against him. But it was not an ex parte declaration of the wife. It was a statement to O’Mara himself, which being made to him, whether by his wife or another, is to be judged of by his own conduct and not by her declaration only. It was a fact or occurrence to which he himself was a party, and the declaration was a part of the res gestee, which is evidence only because he hin^elf was a partaker in it. If in fact his wife had been at home, it is but reasonable to think he would have said so in reply.

The tenth, eleventh and twelfth errors were not properly assigned, but in favorem vitee we have permitted amendment. The tenth and eleventh raise the question whether a presumption in law of murder arises from an unlawful homicide, or whether it is one solely of fact to be determined by a jury. The answer of the court to the first point was that if the jury found an unlawful killing, it is presumed to be murder of some degree, unless the contrary appears in the evidence; though this presumption rises no higher than of murder in the second degree, until it is shown by the Commonwealth to be murder in the first degree. The second point called upon the court expressly to charge that the presumption was one of fact only. This the court declined. In these rulings the court followed Commonwealth v. Drum, 8 P. F. Smith 18, stating the common law of the crime of murder.

The crime of murder was not altered by the Act of 22d of April 1794, since incorporated into the amended criminal code. In White v. The Commonwealth, 6 Binney 179, C. J. Tilghman said, “Now this act does not define the crime of murder, but refers to it as a known offence; nor, so far as concerns murder in the first degree, does it alter the punishment, which always was death. All that it does is to define the different kinds of murder which shall be ranked in different classes, and be subject to different punishments.” Justice Blackstone in his Commentaries, vol. 4, p. 201, says, we may take it for a general rule that all homicide is malicious and of course amounts to murder, unless when justified, excused or alleviated. All these circumstances of justification, excuse or alleviation, he continues, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury; the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate guilt. For all homicide, he says, citing Foster 255, is presumed to be malicious, until the contrary appeareth upon evidence. The same rule is stated by Judge Addison in three cases: Honeyman’s, McFall’s, and Lewis’s, Add. Rep. 147, 257, 282. Primá facie, he says, every killing is murder, for malice is presumed, unless the prisoner show extenuating circumstances which take away,, the presumption of malice. This then is a common-law presumption, but when the legislature classified murders, arranging them in two degrees, the burthen fell upon the Common - monwealth to show that the homicide is murder in the first degree; the common-law presumption rising no higher than the second degree.

Under the twelfth assignment of error, exception is taken to the constitution of the Court of Oyer and Terminer. It is contended, when the new Constitution took effect, that the associate judges not learned in the law dropped out of this court. If this be true, not only have many causes been tried before illegally-constituted Courts of Oyer and Terminer, but the fatal error pervades the Courts of Quarter Sessions, Orphans’ Courts, and General Jail Delivery. The question is serious and perplexing, bringing to' light a palpable want of harmony in the parts of the new Constitution. That the office of associate judge not learned in the law, is continued in counties connected with others in forming judicial districts, and abolished only in the separate districts, is evident: vide section 5th, article 5th, and section 16th of the Schedule. But what places these associates now fill is a different and difficult question. If we must follow the ordinary rules of interpretation, when a subsequent statute alters a former act, we are necessarily led. to the conclusion that the convention meant in section 9th, of the fifth article of 'the new Constitution, to exclude all associates unlearned in the law, from- all the courts but the Common Pleas. That section is a substitute in part for the 5th section of the 5th article of the Constitution of 1790 and 1838, which reads as follows : “The judges of the Court of Common Pleas in each county, shall, by virtue of their offices, be justices of Oyer and Terminer and General Jail Delivery, for the trial of capital and other offenders therein. Any two of the said judges, the president being one, shall be a quorum; but they shall not hold a court of Oyer and Terminer or Jail Delivery in any county, when the judges of the Supreme Court, or any of them, shall be sitting in the same county.” The remainder of the section relates to another subject. The 9th section of the 5th article of the new Constitution reads thus : “ Judges of the Courts of Common Pleas, learned in the law, shall be judges of the Courts of Oyer and Termiuer, Quarter Sessions of the Peace, and General Jail Delivery, and of the Orphans’ Court, and within their respective districts, shall be justices of the peace as to criminal matters.” This section is in part a substitute also for the 7th section of the 5th article of the former Constitution, to which, however, no reference is now necessary. In combining the two sections just recited, we discover two important changes : an interpolation into the. 9th section of the 5th article of the new Constitution, of the words “ learned in the law and the omission of the clause “ Any two of the said judges, the president being one, shall be a quorum.” This interpolation and this omission are so clearly indicative of intentional change, they compel us to conclude that the convention meant to alter the constitution of the several courts named in the 9th section. But was it their intention to carry this alteration into all the judicial districts of the state? Here there is room for argument. That the convention made a difference in the districts, is on the face of the instrument, in some, the judges being those learned in the law only, and in others, the judges unlearned in the law being continued. Vide article 5th, section 5, of the Constitution and section 16th of the Schedule. The language of the 9th section is simply affirmative, without words of exclusion. We therefore must gather the true sense of the convention from various considerations, among them evident defectiveness in the execution of their work.

The distribution of the work into th.3 hands of so many committees upon different and independent topics, leading to want of harmony in arrangement; and the segregation of the provisions of certain leading sections of the old Constitution, to carry them into new and distant relations, whereby some were lost sight of, probably were the causes of incongruity and of omissions; as in taking down an old structure to rebuild it upon a new and larger scale, some of the parts were laid aside and unintentionally forgotten. Such omissions were found in distributing the clauses of the judicial amendment of 1850. For example, the clause providing for commissioning all the judges, and that also relating to the beginning of the terms of the supreme judges. These remarks are simply to show that the absence of a provision, as to what courts the associate judges unlearned in the law should fill in the districts in which the office is continued, was an unintentional omission, arising probably from the habit of considering them as judges of all the courts.

Let us now view the effects and consequences of a literal interpretation of the 9th section, excluding the associates unlearned in the law from all the courts therein named. One is to confine the services of these judges to the Courts of Common Pleas, where they are needed less. Another is to dispense with their services in those courts where they are needed more. The greatest use for the associates is found in their local knowledge, and presence in the counties where the president is not a resident, enabling them to attend to matters of bail, security, appointments of viewers, appraisers, guardians, committees and other matters required to be done in the Quarter Sessions and Orphans’ Courts. When the president judge resides in the district, as all judges learned in the law must, who have separate districts, consisting of single counties, the necessity for associates unlearned in the law does not exist. But the necessity,for these associates remains in all districts composed of two or more counties, and in them the office is continued. In continuing the office, it cannot be supposed the convention intended to lessen its utility, that being the only reason for continuing the office itself. It would rather seem that the 9th section were framed in view of the provision forjudges learned in the law, including the provision for additional judges by the legislature, in all the separate districts and the great cities of the Commonwealth, while the places to be filled by the associates unlearned in the law were overlooked, upon the supposition that they would continue as theretofore, in all the counties where the office itself continued. It would be to impute folly to the convention to continue the office, and yet cut it off from its greatest usefulness. In this connection the absence of words of exclusion is important. The phraseology of the 9th section is peculiar, and affirmative merely. “ Judges of the Court of Common Pleas learned in the law, shall be judges of the Courts of Oyer and Terminer,” &c. The definite article is wanting, making the sentence simply a general affirmative, and “judges” is not coupled with any expression implying exclusiveness.

Another circumstance having a bearing, though a minor one, is the omission to make any change in the commissions of the associate judges not learned in the law. If the convention had intended to exclude these associates from all the courts except the Common Pleas, it seems natural that intention would have found a place somewhere, either in prescribing for their commissions, or in the sections relating to their office. But it is said without qualification in the 5th section of the 5th article, that the several associates in office shall serve for their unexpired terms; and in the 16th section of the schedule, that associate judges not learned in the law elected after the adoption of this constitution, shall be commissioned to hold their offices for the term of five years, from the first day of January next after their election. It may be remarked in passing that this clause is misplaced, its true place belonging to the 5th article. Its .position in the schedule leads to the impression that it was an after-thought.' Thus the absence of words of exclusion, and the merely affirmative phraseology of the 9th section, the perpetuation of the office in districts consisting of more than one county, from one or more of which the judge learned in the law is absent, and the necessity for the services of the associates in those counties, taken into connection with manifest omissions in other respects, unite in leading us to believe that the omission of any clause as to the courts to be filled by the associates, is a mere oversight, and that the convention did not intend to exclude them from the several courts in those districts where their offices are continued.

In The Farmers’ and Mechanics’ Bank v. Smith, 3 S. & R. 69, Chief Justice Tilghman laid down the rule that conventions intended to regulate the conduct of nations, are not to be construed as articles of agreement at common law. But where multitudes are affected by the construction of an instrument, great regard should be paid to spirit and intention ; a rule approved, expanded and applied to' the Constitution itself, by Chief Justice Gibson in Monongahela Nav. Co. v. Coons, 6 W. & S. 114. Following this rule, and ut res magis valeat qxiam-pereat, we have reached the conclusion that the 9th section of the 5th article of the new Constitution, was not intended to exclude the associate judges unlearned in the law, from the several courts named in that section, in those districts where these associates remain. Any other interpretation would be disastrous.

The other assignments of error need no special notice. Finding no error in the record, the judgment and sentence of the court below are affirmed, and it is ordered that the record be remitted for execution.