Commonwealth v. Ronemus , 205 Pa. 420 ( 1903 )

Opinion by

Mb. Justice Mitchell,

This is a petition for a certiorari to the court of oyer and terminer of Carbon county to remove the record and proceedings under an indictment in that court for murder against the petitioners, and for an order to change the venue under the Act of March 18, 1875, P. L. 30. The authority of this court independently of that act has been settled by the cases of Com. v. Balph, 111 Pa. 365, Com. v. Delamater, 145 Pa. 210, Com. v. Smith, 185 Pa. 553, and Petition of Quay, 189 Pa. 517. The petitioners, following the practice indicated in Com. v. Smith, supra, first filed their petition in the oyer and terminer of Carbon county, with the result after a hearing and consideration by the full court that the president judge entered of record an order for a change of venue supporting it by an elaborate opinion on the facts and the law. One of the associate judges expressed his dissent at the time and two weeks later both the associates joined in an opinion expressing their dissent, and entered an order denying the change of venue.

On this state of facts, set forth in the petition, this court granted a rule to show cause why a certiorari should not be allowed, on which the record has been returned and is now before us.

Objection is made not only in respect to the irregularity of the judgment entered by the two associate judges after the formal order of record by the president, but also in respect to the authority of the associate judges to sit at all after the constitutional termination of their office by the erection of Carbon county into a separate judicial district. We do not, however, find it necessary to consider any of these questions. The action of this court upon certiorari in such cases while not strictly the exercise of original jurisdiction, is nevertheless one of general supervision in the interest of justice, and is to be governed by our judgment on the facts, so that as said in Com. v. Balph, supra, “ where it is made clear to us that a man cannot have such a (fair) trial, either from an excited and inflamed condition of the public mind in the county where the indictment was found, .... or from any other sufficient cause, we shall issue our certiorari, remove the record into this court and send it down to another county for trial.”

The facts in the present case are not substantially disputed. They are gathered from a very large number of affidavits and counter affidavits filed in the court below in support and against the motion for a change of venue, which were elaborately considered and clearly set forth by the president judge in his opinion granting the change. In condensed form his findings are:

1. That the mining of anthracite coal is one of the most important industries of Carbon county, and the persons engaged in or dependent on such mining represent a large percentage of the total population.

2. A labor union, known as the United Mine "Workers of America includes in its membership a very large percentage of all the persons employed in and about the mines.

3. In May, 1902, a general strike was declared by the said labor union, which included the firemen, engineers and pump runners.

4. To protect their property from destruction from the accumulation of water, etc., the mine owners and operators employed persons to keep up the fires under the boilers and run the pumps. The petitioners were so employed, not being members of the union, but Patrick Sharp, the person for whose murder they are indicted, was a member of said union.

5. There are in Carbon county other labor unions, of men working in other crafts, who were in sympathy with the miners’ union and supported the striking miners by contributing money.

6. The members of all these unions, their neighbors, relatives and friends, were greatly excited and prejudiced against the petitioners on account of their working at a time when a general strike had been declared.

7. This general excitement and prejudice had been displayed and promoted by inflammatory articles in the local newspapers and by sermons and addresses by some ministers, who forgetting their mission as composers of strife, had disgraced their pulpits by denunciation of those who continued, to work.

8. During the strike riots and violence were frequent, men who continued at work were threatened, abused, hung in effigy and their families terrorized, such conduct extending even to the school children. So great did the lawlessness and disorder become that the sheriff of the county was unable to maintain the peace and on his application the governor had sent troops to preserve order.

9. The disorder was so great that it invaded the court room and on two occasions specified the proceedings were interrupted and the judge insulted by sympathizers with the union and the strikers.

10. The learned judge concludes: “ This case is sui generis. Ordinarily when a murder is committed, there is a popular indignation by reason of the cruelty of the deed — commiseration for the deceased, or some incident affecting the deceased or the slayer. In the present case there was a popular vindictiveness on the part of the miners, .... not so much because Patrick Sharp was killed, but because he was killed by “deputies ; ” because a union man was killed by nonunion men.”

Against this convincing array of facts there is not presented a single denial or even question. The commonwealth submitted answers “ all exactly alike ” from certain citizens and electors setting forth that they have knowledge of the sentiments of jurors and the public generally “ and denying that any such causes for a change of venue exist; but alleging, that in their opinion there is no undue excitement against said defendants in said county, so as to prevent their obtaining a fair and impartial trial in said county, and there does not exist in said county a prejudice against said defendants such as would prevent their obtaining a fair and impartial trial in said county.”

The action of the associate judges is upon the same basis. Their opinion makes no question of the facts, but states that “ the petition and the facts alleged therein were fully presented and thoroughly discussed by the counsel for the prisoners and patiently and carefully heard and considered by each member of this court. The president judge has filed an opinion granting the prayer of the petition ; but we, his associates, cannot and do not concur with him for the reason that notwithstanding all the allegations of defendants we are by no means convinced that there exists in this county, such undue excitement against the prisoners or so greát a prejudice against them or any combination against them instigated by influential persons,by reason of which they cannot obtain a fair and impartial trial in said county.”

The opinions of magistrates qualified by acquaintance with the popular feeling of their vicinity and formed deliberately under such circumstances are entitled to respectful consideration. In this case they are neutralized by the opinion of the president judge, formed under the same circumstances and with the advantages of legal training and experience in observing the subtle influences that affect the administration of justice. But while both opinions have received due attention yet the question before this court is not one of opinion but of facts and on the undisputed facts the case admits of but one conclusion. That at the time of the indictment and of the filing of this petition a fair and impartial trial could be had in Carbon county cannot be maintained for a moment. The language of the president judge is again worth quoting, “This is not the ordinary case of homicide. It was committed while the greatest strike in the history of the labor world was progressing. A partial reign of terror existed in the coal region. Labor was arrayed against capital. These defendants were not members of the miners’ union and were called ‘ scabs ’ and ‘ deputies ’ by the strikers, and were working at the time when the miners were out on strike. The masses of the people had arrayed themselves on the one side or the other by the great contest which was being waged. Intense excitement prevailed all through the coal region.”

This condition is not altogether ended. The strike is over, whether settled permanently or not is yet uncertain. The excitement may have quieted down, but the antagonisms which produced it are those of conflicting interests, are of long standing and are permanent in their nature. The passions only slumber and may break out again at any moment. It is asking too much of credulity to believe that men who did not hesitate at arson and riot and terrorism over women and children will stop now and do their part for a fair and impartial trial in a case where only a few months ago they were clamorous to hang the accused without trial, and carried feeling so far as to insult the court in its public administration of justice. The accused have a right not to be subjected to so small and perilous a chance.

The rule for certiorari is made absolute, the order of the associate judges of the oyer and terminer refusing a change of venue is vacated, a change of venue granted, and the record is ordered to be certified to the court of oyer and terminer of Montgomery county with instructions to proceed as if the indictment had been originally found in said county. Said proceedings and trial to be at the expense of the county of Carbon.