Showers v. Commonwealth

Opinion,

Mr. Justice Williams :

The record in this case shows that a venire issued for the summoning of forty-eight jurors for the Oyer and Terminer of Lebanon county.

This is the minimum number required by the act of 1834. In obedience to the writ the required number of names was regularly drawn from the wheel and the sheriff served notice upon all whom he could find and made return upon the venire accordingly. The record is certainly regular upon its face, and shows a properly organized court for the trial of the defendant. But it is urged that among the names drawn from the wheel two were names of persons who were then deceased, and one, the name of a person who had removed from the county, so that the names of but forty-five persons who were living and resident, were drawn and summoned as jurors. This was made the ground of a challenge to the array, which the court overruled. This action of the court is the subject of the several assignments of error in this court.

The officers who are charged by law with the duty of filling the jury wheel and drawing therefrom the names of jurors for the several courts, have no power over the lives or the residences of the citizens of the county. Either death or removal may happen to one whom the jury commissioners or judge may regard as a suitable man for a juror, and they may not know it, either event may happen after the name is in the wheel and neither the sheriff nor the jury commissioners have any knowledge about it. It is impossible that these officers should know exactly the situation of every man in the county at the moment when his name goes into the wheel, or when it is drawn out. All that can be demanded of them is that they shall discharge their duties with fidelity. The defendant has a right to insist that the machinery of the court shall be properly set in motion and supervised with impartiality and integrity. If the venire issues for a less number of jurors than the law directs, or if its execution is open to a charge of unfair and corrupt practices, the defendant is entitled to have the array dismissed upon his challenge; but he has not the right to insist that a venire upon which forty-eight names were drawn shall furnish forty-eight living resident jurors able to attend the sitting of the court. This has been repeatedly held by this court:” Foust v. The Commonwealth, 33 Pa. 338, Rolland v. The Commonwealth, 82 Pa. 306. In the latter case it was distinctly ruled that “it is not the right of a defendant to have forty-eight jurors in actual attendance in the Oyer and Terminer.”

In that case forty-eight names were drawn from the wheel, but the sheriff’s return showed that two of the number were not found, and that one was deceased. As in this case, of the forty-eight persons whose names were drawn, but forty-five were summoned. This was held not to be ground for challenge to the array. It is true that it appeared in that ease that the sheriff did not know of the removals aud death, when the names were taken from the wheel, but the fact was nevertheless clear from his return that but forty-five living, resident persons were drawn and summoned in obedience to the venire. The circumstance that the sheriff was ignorant of the death or removal of persons drawn, is significant only as showing his good faith, and the absence of any improper conduct on his part. If the failure to draw or summon the required number bad been due to any improper or corrupt practices on the part oí any of the officers charged with the performance of these duties, a challenge to the array would have been sustained; not because less than forty-eight jurors were in attendance, but because the absence of those not attending was due to an interference with.the due execution of the venire.

In Rolland v. Commonwealth, the fact that only forty-five living, resident jurors were drawn and summoned was due to circumstances over which the sheriff and jury commissioners had no control, and of which they had no knowledge. Their fairness and good faith were apparent, and were not assailed. In this case the same deficiency in the number of jurors was due to substantially the same circumstances. The evidence shows the fairness and good faith of the officers. The identity of one of those now shown to be dead, was fairly debatable and was fully considered by the officers. The removal of another seems to have been unknown at the time, and the death of the third, having occurred after his name was placed in the wheel, was thought to make it necessary for them to put his name in the panel. In all this there was an evident and honest purpose to discharge the duties resting on these officers. No corrupt interference with the execution of the venire is alleged, and certainly the evidence shows no reason for suspecting it. If the jurors in attendance were insufficient in number, the defendant had the right to special venires as often as might be necessary, and in this case such writs were actually issued until more than one hundred jurors were summoned before the box was filled. The challenge to the array was properly overruled, and. the

Judgment is affirmed.