Commonwealth v. Payne

Opinion by

Mb. Justice Mitchell,

The first assignment of error is to the action of the court below in excusing five of the panel of jurors drawn, and in doing so in advance of the call of the case for trial without the knowledge or consent of the prisoner. The statute prescribes a minimum panel of forty-eight and such a panel should be regularly drawn in accordance with law. But it is not required that the whole panel shall appear in court at the call of the case for trial. Such a requirement would frequently be impracticable. Some of the persons drawn may be dead or removed from the county, and their absence is not ground for challenge to the array. It is not a right of a prisoner to have forty-eight jurors in actual attendance: Rolland v. Com., 82 Pa. 306; Showers v. Com., 120 Pa. 573. So if the jurors drawn attend, but prove to be incompetent or incapable of service from sickness or other cause, they may be excused, and the sufficiency of the cause is within the discretion of the judge which is not reviewable: Jewell v. Com., 22 Pa. 94; Foust v. Com., 33 Pa. 338. Whether the juror be excused at the trial or beforehand is also within the sound discretion of the court, though in the latter case the action and the reasons for it should be stated in open court, so that the fact that the excuse was judicially passed upon and found to be sufficient should appear on the record. It would be an unreasonable hardship on a juror seriously ill to require him to be brought into court merely to be excused, and the reasons for disqualification or excuse are so numerous that they cannot be specified beforehand or reduced to any set rule, but must be left to the discretion of the judge to dispose of as they arise.

The next assignments of error are to the calling of the jurors summoned as tales do circumstantibus one at a time. This was within the discretion of the court. There is no right in a prisoner to have any particular man or men on the jury, or any particular set of men from whom to select. His right is only to have the proper number of jurors, “ good men and true,” as the common-law phrase was, to sit upon his case. The venire for talesmen always implies that less than a full panel are required, Williams v. Com., 91 Pa. 493, and how many it will probably be necessary to summon in order to complete the jury depends so entirely on the circumstances of each case that the whole matter must be left to the determination of the judge at the time. It was said in the argument that the judge in this case departed from the usual practice in ordering or allowing the tales men to be called singly. We do not know how this is. In general it is desirable, especially in cases of serious crimes, to proceed in accordance with the settled course of precedents and practice. But the judge was within his legal right and even if he did not follow the usual course, it is to be conclusively presumed that he had good reasons for his action.

The remaining assignments are to the refusal to permit the prisoner’s counsel to prove the general reputation of a witness for the commonwealth, even when coupled with an offer to follow it with proof as to the reputation for truth and veracity. The offer was properly excluded. The only point relevant to the case was the truthfulness of the witness’s testimony. This might be attacked by direct contradiction, or by showing a special animus or prejudice on the part of the witness against the prisoner, or by showing a bad reputation for truth and veracity in general. But this is the extent. A vicious practice had at one time a considerable hold in some states (and to some extent still has in modern England) under the pretense of “letting the jury know who the witness is ” of allowing indiscriminate attacks upon the general character and private life of adverse witnesses. No doubt there are cases where such knowledge might materially assist the jury in estimating the proper weight to be given to the testimony, but it was capable and usually productive of great abuse by throwing into the jury box wholly irrelevant matter merely intended to excite prejudice against the witness. In this case the true legal rule was properly enforced.

All the assignments of error are technical and having no legal merit are overruled.

Judgment affirmed and record remitted to the court below for the purpose of execution.