Commonwealth v. Cleary

Opinion by

Mr. Chief Justice Paxson,

The first specification alleges that the court below erred in dismissing W. Monroe, when called as a juror. When the juror was asked the usual question, whether he had formed or expressed an opinion as to the guilt or innocence of the defendant, his reply was, “ well, yes, I signed that petition,” whereupon the learned judge below, without any further questions being asked the juror, directed another juror to be called. To understand this question properly, it is necessary to state that the prisoner had been tried at a previous term of the court, and convicted of murder in the first degree. Upon appeal to this court, the judgment had been reversed, and the cause sent down for a retrial. In the meantime, a petition, of which the following is a copy, had been circulated through the county of Clinton, and signed by the juror with many others. The petition is as follows:

“To the Honorable, the Judges of the Court of Oyer and Terminer of the County of Clinton:

“ The petition of the undersigned, citizens of the commonwealth of Pennsylvania, residents of the said county, respectfully shows:

“ That we are informed as to the general line of the testimony produced, and the facts established, in the former trial of Charles Cleary, for the homicide of Philip Paul. And further, that the counsel for the prisoner are willing, if the court will accept it, to enter the plea of murder of the second degree, without further trial. That your petitioners are of the opinion that the requirements of justice will be fully satisfied by the entry of said plea, and the imposition of sentence in pursuance thereof. That the general sentiment of the people in the portion of the county in which we live is opposed to incurring the expense of another trial, and imposing its burden on the taxpayers of the county, while substantial justice may be reached in the manner proposed. We, therefore, pray the court to receive the plea of murder of the second degree, tendered by the prisoner.”

I have quoted this petition in full, to enable us the more emphatically to condemn this unusual and improper interference with the administration of the law. It is not the less objectionable because its main object appears to have been to relieve the taxpayers from the expense of another trial. Notwithstanding the prisoner had been previously convicted of murder in the first degree, and the judgment had been reversed, not upon the merits, but for an error of the judge below in his charge to the jury, the petitioners express the opinion that the requirements of justice will be fully satisfied by tbe acceptance of a plea of guilty of murder in the second degree, and so advise the court. They profess to have been fully informed as to the general line of testimony produced, and the facts established at the former trial. It was a deliberative expression of opinion on the part of the petitioners as to the merits of the case, reduced to writing, and signed by this juror. We do not think the juror, under the circumstances, should have been allowed to say that he could try the case impartially. Every man who signed that paper disqualified himself from serving as a juror in that case, and the learned judge below was entirely right in dismissing the juror in the summary manner he did. It would have been clear error to have allowed him to take his seat in the jury box.

The second specification alleges that the court erred in refusing a change of venue, applied for by the appellant after the panel of jurors was exhausted. This application was made under the act of March 18, 1875, P. L. 30, the 4th paragraph of the first section of which provides: “ When upon a second trial of any felonious homicide the evidence on the former trial thereof shall have been published within the county in which the same is being tried, and the regular panel of jurors shall be exhausted without obtaining a jury,” the venue may be changed on application of the defendant or defendants, etc.

The petition for the change of venue sets forth the former •conviction; that the proceedings, including the evidence, were published in three of the daily papers in the county of Clinton ; that a venire of sixty jurors had been summoned; that in the effort to procure an impartial jury, the panel was exhausted when only eight jurors had been called into the box, etc.

The second section of the act of 1875 provides: “ All applications for changes of venue shall be made to the court in which the indictment shall be pending, in such manner as the said court shall direct, and before the jury shall be sworn therein; and if the said court shall be satisfied of the propriety of such change of venue, and that the causes assigned therefor are true, and are within the provisions of the first section of this act, it shall be ordered that the venue thereof shall be changed to some adjoining or convenient county where the causes alleged for a change do not exist.”

In Com. v. Allen, 135 Pa. 483, it was held that a motion for a change of venue in a criminal ease, under the act of 1875, is addressed to the sound discretion of the trial judge, and, when no abuse of discretion appears, a refusal to grant such an application will not be reviewed and reversed by the Supreme Court. It was said in the opinion of the court: “ The motion to change the venue was in the sound discretion of the court below. The application was made upon the ground that a fair trial of the defendant could not be had in Potter county. The act of March 18, 1875, P. L. 30, provides that in criminal prosecutions the venue may be changed, for the causes enumerated in the act, when it ‘ is made to appear to the satisfaction of the court’ that the grounds upon which such application is made are well founded. In this case we are bound to presume that it did not appear to the satisfaction of the court that the defendant could not have a fair trial in Potter county. For anything the record discloses, the discretion of the learned judge was properly exercised. In any event, there was no such abuse of discretion as would justify our interference. It would seriously disturb the administration of the criminal law, if, by merely filing an affidavit, a defendant could have a change of venue as a matter of right.” •

We see nothing in the action of the court below to indicate an abuse of discretion. Eight impartial jurors had been obtained out of a panel of fifty-two, and the learned judge may well have believed that the remaining four jurors could be had from the talesmen who were summoned. They were in fact so obtained. The plain object of the act was to empower the court to grant a change of venue in such cases, where the trial judge is convinced that an impartial jury cannot be otherwise obtained. This assignment is not sustained.

The third specification involves the same question, and does not require discussion.

The fourth specification alleges the court erred in overruling defendant’s objection, and admitting the evidence of Theodore McConnell, taken on the former trial. The witness had been examined at the former trial, and was cross-examined by^the prisoner. He has since removed from the state, and was beyond the reach of a subpoena. The offer was made under the provisions of the act of May 23,1887, the third section of which is as follows: “ Whenever any person has been examined as a witness, either for the commonwealth or for the defence, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards die, or bo out of the jurisdiction, so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue; but, for the purpose of contradicting a witness, the testimony given by him in another, or in a former proceeding, may be orally proven.” It was contended by appellant’s counsel that this statute is in conflict with article I, § 9, of the constitution of Pennsylvania, which declares: “ In all criminal prosecutions the accused hath a right to meet the witness face to face; ” and, also, with a somewhat similar provision of the constitution of the United States. We do not think the act in question violates either of the constitutions referred to. Where a witness has been examined in the presence of the accused, and the latter has had a full opportunity to cross-examine him, we think the additional requirement, that the defendant should meet his accuser face to face, is fully complied with.

Where, upon a subsequent trial, the witness is dead, or beyond the jurisdiction of the court, there seems no good reason why his testimony taken upon the former trial, and clearly proved, should not be admitted. To deny this right would, in many instances, seriously interfere with the administration of justice, if not wholly defeat it. The defendant is not injured in such case, because he has been brought face to face with the witness, and has cross-examined him when the testimony was taken. In Brown v. The Commonwealth, 73 Pa. 321, it appeared that on the preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant’s counsel, and the witness having died before the trial, the notes of his evidence, proved by the counsel under oath, were offered in evidence, objected to and admitted. It was contended that, by the constitution of this state, the defendant was entitled to meet the witness face to face. It was held by this court, in an elaborate opinion by Chief Justice Read, that the notes of the hearing before the magistrate were properly admitted. The question was so elaborately discussed in that case that no further reference to it is needed.

We do not think it was error to exclude the offer of evidence referred to in the fifth specification. The most that the offer amounted to was, that the defendant possessed a nervous temperament ; that he was excitable and eccentric. It was not an offer to show insanity, nor anything from which insanity could properly be inferred.

The sixth specification alleges the court erred in refusing to grant a new trial, because the sheriff in selecting and summoning a jury, under the venire ordered by the court, after the panel was exhausted, inquired of the persons selected whether they had any conscientious scruples on the subject of capital punishment, and whether they had signed the defendant’s petition to the court, asking the court to accept the plea of murder in the second degree. It may be conceded that the conduct of the sheriff in this respect was officious and unauthorized. It is not the duty of that officer, when summoning a juror, to ask him any questions in regard to his bias or prejudice for or against the prisoner, nor whether he has any conscientious scruples against capital punishment. The questions, however, were such as are usually and properly asked in court of á juror before he is brought to the book. The court below appears to have thoroughly investigated this matter, and it is apparent that no injury was done to the prisoner. There was nothing to show that any person otherwise competent as a juror was rejected by him. He omitted to summon but two persons, and it is evident that if they had been summoned, they would have been rejected as incompetent. At the same time, it is to be observed that the proceeding was irregular, and not to be countenanced. If there was any reason to believe that the prisoner had been prejudiced by it, we would reverse this judgment and order a new trial. But we ought not to interfere with the administration of the criminal law, except for substantial reasons. A verdict twice rendered ought not to be set aside for the mistake of a bungling official, which has done no harm to the defendant.

The seventh specification alleges that the court erred in refusing to sot aside the verdict of the jury, for the reason that, during the progress of the trial the jurors were furnished with intoxicating liquors at the hotel where they were boarded.

It is not disputed that some of the jurors, during the continuance of the trial, drank spirituous and malt liquors. But there is nothing to show that any of them, at any time during the trial, was intoxicated or visibly under the effect of liquor. This matter is very fully referred to in the opinion of the learned judge below in refusing a new trial, and the circumstances detailed under which the liquor was used. Several of the jurors appear to have taken it for medicinal purposes, and none of them to have indulged to such an extent as to interfere with the proper performance of their duty as jurors. While there is no law which forbids the use of intoxicating liquors to jurors, even in a capital case, it is nevertheless the duty of the court, where the juror has indulged in their use, to scrutinize his conduct, and if it should appear that he has been intoxicated to any degree, a new trial should be granted. We are not prepared to say, however, that a verdict should be set aside for no other reason than that a juror has taken a glass of liquor. Were we to declare such an iron-clad rule to be the law, it would only be necessary for a friendly juror to smuggle a bottle of liquor into the jury room to set aside the verdict. The better rule is for the trial judge to forbid the use of liquor in the jury room, except by permission of the court, and for cause shown. There may be instances, indeed I have known such, where its use was necessary by reason of sickness or other cause. In such cases, a physician may be called in to examine the juror, and prescribe for him.

The eighth, ninth, tenth and eleventh specifications allege error in the charge of the court. The definition of murder in the first and second degree, as contained in the ninth specification, while not as full and complete as it might have been, is not erroneous. Moreover, it is but a short extract from the general charge, in which the subject is correctly treated. The reference to intoxication in the tenth specification is entirely accurate, and as favorable to the prisoner as he had any right to expect. The learned judge could not have told the jury, with propriety, that the entire evidence, taken together, was not sufficient to sustain a verdict of murder in the first degree.

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