Commonwealth v. Bradney , 126 Pa. 199 ( 1889 )

Opinion,

Mr. Justice Clark:

As this indictment charges a nuisance, it was competent for the commonwealth on the trial to take an exception to any decision or ruling of the court and have a bill thereof sealed according to the practice in civil cases: Act of May 19,1874, P. L. 219. The proceeding to quash is properly considered as a part of the trial: Commonwealth v. Jackson, 1 Gr. 262. But as there was no exception taken or bill sealed upon the competency of the witnesses examined on the hearing of the motion to quash, no question of that character can arise. The testimony so taken is before us for what it is -worth, upon the exception to the order quashing the indictment, and the only matter for our consideration is, the sufficiency of the evidence to justify that order.'

It cannot now be doubted that an indictment may be quashed for matters not apparent upon the face of the record: Bish. Cr. Law, 763. There is an apparent conflict in the cases, but the power of the court in this state has been recognized in frequent instances and to such an extent as to establish the rule beyond question. In support of this we may cite Jillard v. Commonwealth, 26 Pa. 169; Brown v. Commonwealth, 73 Pa. 321; Commonwealth v. Bartilson, 85 Pa. 482; and Commonwealth v. Greene, a case in the Eastern District, not yet reported. It is also true that a motion to quash a bill has been treated as a proceeding addressed to the discretion of the court, a discretion regulated by judicial rule; and, according to the more common practice, perhaps the decision is not open to revision in the higher courts, but in Pennsylvania and in some others of the states the practice is otherwise.: Commonwealth v. Church, 1 Pa. 105; McCullough v. Commonwealth, 67 Pa. 30; Commonwealth v. Keenan, 67 Pa. 203; Hutchison v. Commonwealth, 82 Pa. 472.

It appears that whilst the bill was under consideration of the grand jury, Mr. Brown, the district attorney, told Mr. Summerson, one of the grand jurors, residing in the township in which the road was located, that the court had directed him to withdraw and to take no part in the deliberations of the grand jury in this case; that Mr. Summerson thereupon withdrew and the bill of indictment was afterwards considered in his absence and was returned a true bill. Whilst the district attorney appears to have acted in good faith, he admits that he was mistaken in supposing that the court had given any such instructions. It appears also that the district attorney remained in the room with the grand jury, not only whilst the witnesses were examined on this bill, but during their deliberations upon it and whilst the vote was being taken upon the question whether or not the bill should be returned a true bill. The defendants’ contention is that this action of the district attorney was good ground for quashing the indictment, and the learned judge of the court below, being of this opinion, sustained the motion to quash and entered a decree to .that effect.

The district attorney is the attendant of the grand jury; it is his duty as well as his privilege to lay before them matters upon which they are to pass, to aid them in their examination of witnesses, and to give them such general instruction as they may require. But it is his duty during the discussion of the particular case, and whilst the jurors are deliberating upon it, to remain silent. It is for the jury alone to consider the evidence and to apply it to the case in hand; any attempt on the part of the district attorney to influence their action or to give effect to the evidence adduced, is in the highest degree improper and impertinent. Indeed, it is the better practice, and the jurors have an undoubted right to require, that he should retire from the room during their deliberations upon the evidence and when the vote is taken whether or not an indictment shall be found or a presentment made. In the absence, however, of any participation in the deliberations of the jury or effort on his part to influence their finding, we do not think that the mere presence of the commonwealth’s officer in the jury room would he good ground for quashing a hill; no ease has been called to our attention which carries the rule to this extent.

It is certainly true that the exclusion of Summerson from the jury was an unwarranted act of the district attorney. Summerson was a competent juror, and having been sworn was entitled to sit. The district attorney seems to have been misled by a suggestion of Farwell, the prosecutor, who, coming out of the court room, said to Brown that Summerson should withdraw from the grand jury before the consideration of, or a vote upon this bill. The district attorney, supposing that the court had so ordered, told Mr. Summerson to retire, which he did. Although this appears to have been done in good faith, as far as the district attorney was concerned, it was done rashly, without proper consideration and wholly without authority. But we are relieved from deciding what was the legal effect of the withdrawal of this juror; for, when the bill was returned, the matter was called to the attention of the court, and ifc was at once inferred back to the grand jury, and then, in the absence of the district attorney, upon a re-examination of the witnesses, and in the presence and hearing of Mr. Summerson and of the entire jury, the vote was retaken and the bill was again returned a true bill. In the absence of all evidence of any corrupt or improper influence exerted upon the jury, either upon the examination or the re-examination of the case, certainly this was sufficient.

It seems that Summerson resided in the township in which this road was situate, and that he had a draft which belonged to the other side. * The district attorney says that Summerson was “ caucusing in the corner ” with it, and that he told the jury, they had no right to use that draft, or to try the cause; that they had a right to find a true bill or to ignore it, but the proper place to hear the defence was at the trial in court. Now this statement of the district attorney was clearly right, and it was one which it was his privilege to make. We find nothing in the testimony to indicate that the district attorney exercised any undue or improper influence upon the jury, which could have affected them on their deliberations during the re-examination of the ease, and their finding was therefore in all respects regular and valid.

The order and judgment of the Quarter Sessions, quashing the bill of indictment, is reversed, and the record remitted for further proceedings according to law.