Commonwealth v. Windish , 176 Pa. 167 ( 1896 )

Opinion by

Mb,. Justice Williams,

There are four assignments of error upon this record. The first is to the refusal of the court below to quash the indictment. The reasons on which the motion to quash rested related to defects in the form of the writ of venire. If this motion had been promptly made, the defects- pointed out in the writ might have led to the quashing of the array of grand jurors ; but it was not so made. It was not made until the second term, and not until the defendant had obtained a continuance of his case upon application. The defects complained of were in the form of tbe writ, and one of these was amended by the court before the trial. As amended, the venire authorized the summoning of a grand jury, and that body had power to inquire into the commission of the offense charged in the indictment. The second and third assignments complain that the court overruled the defendant’s challenge for cause to the jurors Kneas and Ryan. The challenge of Kneas as appears by the bill of exceptions rested on the fact that he was described in the venire as a laborer and that he testified that he was a farmer. The challenge of Ryan was made on the ground that his occupation as given in the writ was that of a porter, while in fact it was that of a potter.

It was not alleged that these were not the persons drawn and summoned as grand jurors, nor that other persons bearing the same names and following the occupations named in the venire were to be found in the districts from which these jurors were drawn. The objection in both cases rested on the mistake in the occupation of the jurors as stated in the writ. We think it sufficiently appeared that the persons called were the persons whose names had been drawn from the wheel, and this was the important question on which the challenge depended. The last assignment is directed to the refusal of the court to withdraw a juror because the district attorney, as is alleged, had said in his opening address that he had “no doubt what the opinions of those jurors were who were challenged because of their opinion.” We have had occasion to say on several occasions within the last few years that there is no way provided for excepting to the remarks of counsel. The addresses to the jury like all else relating to a trial are under the supervision of the trial judge. If counsel indulge in a line of remark that is unfair toward the prisoner or that is calculated unduly, or in an improper manner, to excite the prejudice of the jury against him, it is the duty of the defendant or his counsel to call the attention of the court to it and ask the protection to which he is justly entitled.. The court will then in the exercise of a sound judicial discretion consider the subject and determine whether the line of remark shall continue, be modified, or discontinued altogether, and whether any explanation or correction of what has already been said shall be made. Under all ordinary circumstances, this is the course to pursue; and the judgment of the trial judge must, as in other cases of the exercise of discretionary powers, be regarded as fixed. An abuse of discretion may in a proper case be made the subject of an appeal to this court. The record does not indicate that the attention of the learned trial judge was drawn to the opening address of the district attorney while it was being delivered, or in any other manner than by this motion to withdraw a juror made at some time before verdict. Tins case is, therefore, clearly distinguishable from the case of Holden v. The Penna. Railroad, 169 Pa. 1, as in that case the application was promptly made, refused, and a bill of exceptions to such refusal sealed by the trial judge, thus bringing the objectionable remarks upon the record. This was not done in this case. The remarks objected to form no part of the record and they can be considered only in the manner already indicated. The motion was, therefore, properly refused. The evidence seemed to satisfy the jury and the learned judge of the guilt of the defendant. He was fairly tried. The errors assigned are overruled and the judgment is affirmed.