Allison v. Commonwealth

Mr. Justice Paxson

delivered the opinion of the court, November 14th 1881.

The first six assignments allege that the court below erred in overruling the prisoner’s challenges for cause to the jurors who are respectively named in said assignments.

As all of these challenges rest upon the same principle, it will be sufficient to discuss one of them. I have selected that of the juror John Phillips, which is believed to embody all of the objections made to either of the others.

The juror had stated on his voir dire that he had formed an opinion ; that he believed the prisoner guilty. The prisoner’s counsel then asked him this question: “ That was your deliberate conviction from what you read?” Answer. Yes, sir, that was from what I read.” The juror then proceeded to say that it would require evidence to remove that conviction from his mind, and that to this extent his judgment as a juror would be affected.

Prima facie this would disqualify the juror. A “ deliberate conviction” is the equivalent of a “fixed opinion,” which, according to the modern authorities, is the test: Staup v. Commonwealth, 24 P. F. Smith 458; O’Hara v. Commonwealth, 25 Id. 424; Ortwein v. Commonwealth, 26 Id. 414. It is to be observed, however, that the foregoing statement of the juror was in response to leading questions. The words were suggested by the prisoner’s counsel. It is true he adopted them, hut it is only fair to the juror and to the court below to turn to the cross-examination to see what he really meant when he answered the questions referred to in the affirmative. We there find the following: “ Q. Have yon any deliberate, fixed opinion about this case ? A. Nothing more than from what I read. Q. Have you anything moi’e than an impression ? A. No, sir. Q. You liaye no such impression as would not yield to the evidence in the case ? A. No, Sir. Q. Could youthen act as an impartial juror between the Commonwealth and the defendant? A. It would be owing to the testimony. Q. Your verdict would be according to the testimony? A. Yes, sir.” It will thus be seen that his cross-examination dispels the idea of his having a fixed deliberate opinion, and explains and qualifies his previous statement. If it had appeared upon his cross-examination that the juror intended upon his examination in chief to say that he had a fixed opinion, he would have been incompetent. He would have put himself outside of the jury-box so far as the trial of this case is concerned. Where it clearly appears that a juror has formed a fixed opinion as to the prisoner’s guilt, lie should not be permitted to say that he can act impartially. He may honestly think so, but the prisoner should not to be subjected to such a risk. Jurors arc but men, and are not perhaps above the average citizen either in intelligence or mental self-control, and may be affected by a previously formed fixed opinion without intending or even knowing it. Eesides, few jurors are willing to acknowledge publicly that they cannot act impartially. The law wisely delivers the accused from such a peril.

Of the remaining jurors it is sufficient to say, briefly, that Frank Fleming expressed no fixed opinion ; Jacob Lutz said he had not a fixed opinion; Jacob Wilhelm said he had formed a conclusion or deliberate judgment, but the words were suggested by a leading question, and he explains, upon cross examination, that it was nothing more than an “ impression upon his mind ” made by reading the accounts of the transaction in the newspapers; John Patterson said he had come to a conclusion, but that it was a mere floating impression formed from wbat he bad read; while Joseph Atkinson, the remaining juror, both upon his examination in chief and cross-examination, denied having formed a fixed opinion. Each of the jurors stated that the opinion formed was not of such a character as would influence his mind as a juror, and that he could and would give the prisoner an impartial trial. That the impressions formed would require some evidence to remove is not material. Impressions formed upon the mind necessarily remain until something occurs to remove them. This is a law of our nature, and cannot be changed by human agency. As was said in Ortwein v. Commonwealth, supra, “ That evidence would be required to change their first impressions has but little weight. Such must always be the fact even in case of slight impressions or loose opinions. An impression once formed necessarily exists until something else changes it.”

It was urged, however, that inasmuch as the opinions of the jurors were in part formed by reading the testimony taken before the coroner’s jury, the case comes within Staup v. Commonwealth, supra, where it was held that opinions formed from reading the evidence upon a former trial are more to be regarded than those which are merely based upon rumor, or upon newspaper accounts. But in Ortwein v. Commonwealth, a distinction was taken between a previous trial and a healing before the coroner. A juror, who has attended a previous trial, or who has read the evidence delivered thereat, is in possession of the whole case, both what the Commonwealth alleges and what the prisoner offers by way of defence. An opinion formed from such knowledge excludes the idea of impartiality, and it would be perilous to a prisoner to allow such a juror to be sworn in the case. This is not true, to an equal degree, with preliminary examinations. They are in no sense a trial, but rather an inquiry into probable cause. As a general rule such examinations are conducted iu a loose manner, but a small part of the Commonwealth’s testimony given, and none on the part of the person accused. It would be going very far to extend the principle of Staup v. Commonwealth to any preliminary examination whatever. The judge who tries the cause has no knowledge of such examination, or of what evidence was offered thereat, nor can he know if it will even resemble that which is about to be offered upon the trial. It would be a fruitless proceeding for the court below to go into an examination of the character of the evidence offered before a coroner or committing magistrate, to test the competency of a juror.

The true rule, deducible from the authorities, in regard to the competency of jurors, is as follows:

1. Where the juror entertains a fixed or deliberate opinion, no matter how formed, of the prisoner’s guilt, he is incompetent ; and his belief that he can try the prisoner impartially will not remove the disqualification.

2. Where the juror has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent, even if the opinion thus formed does not come up to the standard of a fixed opinion.

3. A mere opinion or impression, which is not fixed, and which is not based upon the evidence of a former trial, does not disqualify, provided the juror can act impartially, and render a verdict upon the evidence and upon that alone, uninfluenced by such previously formed opinion or impression.

Close questions in regard to the competency of jurors may bo frequently avoided by standing the juror aside. In such cases he is not called again until the panel is exhausted, which, in many instances, docs not occur.

The publication of the evidence given at preliminary examinations in important criminal cases often seriously embarrasses the administration o f justice. While such publications are eagerly sought for and read, they never benefit the community, and are often productive of much harm in various ways. It is a matter worthy the consideration of the legislative department of the government whether the publication of the evidence in criminal cases should not be altogether prohibited by law.

The seventh assignment is without merit. There was no necessity of striking out the testimony of Thomas Lukehart. There is nothing in the case to show that when Robert Allison made the declaration to the witness he did not expect to die. Lie was mortally wounded. Ilis physicians had informed him there was no hope, and that he must prepare for death. He said he knew it, and told all with whom he conversed upon the subject that he would die from his injuries. There is nothing to contradict this; and the remark by the deceased to the witness, when his will was being prepared, that if he got well the will would amount nothing, does not of itself, in the face of the evidence, disclose any expectation of his recovery. The remark was perhaps natural, but altogether unimportant. What has been said under this head covers also the eighth and ninth assignments.

The tenth, and last, assignment alleges error in not striking out all the oral evidence of the dying declarations of the deceased, upon the ground that the written paper offered in evidence as dying declarations excluded such oral evidence. We see no error in this. The evidence referred to was properly received, and the paper- in question cannot have the effect claimed for it. If objected to it would not have been admissible. It was but a statement of what the deceased said as to the cause of his death, reduced to writing by a person who heard it. The paper was not signed by the deceased, nor does it appear to have been read to him, or that he assented to its correctness. It might have been used by the person who wrote it to refresh his memory. Beyond this it had no value.

We find no error in this record.

The judgment is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.

Merour, Justice, dissents, “as the jurors held opinions so strongly fixed as to disqualify them under Staup v. Commonwealth.”