Clark v. Commonwealth
16 A. 795
Pa.
1889
Check Treatment

OPINION,

Me. Justice McCollum:

We have before us the record of tlie trial and conviction of George Clark for the murder of William McCausland. It discloses a murder perpetrated by lying in wait and to accomplish a robbery. The defendant in this record affirms that there are errors in it which contributed to his conviction, and he brings it here for inspection. The alleged errors are contained in fifteen specifications which we will pass upon in their order.

The three specifications which rest on the denial by the court below of the motions to quash the indictment and the array of petit jurors, and of the motion in arrest of judgment, may be examined and considered together. It is contended in support of these motions that the finding by the grand jury of an indictment against the defendant pending the hearing on the habeas corpus allowed on his application, was irregular, illegal, and an abridgment of his rights under the writ, and that the sheriff, having made the information on wlrich the warrant for his arrest was issued, could not lawfully participate in the drawing of the petit jurors.

The information was made December 27,1887, and the warrant upon it was issued the same day. On the next day the defendant was arrested and on the 2d of January, 1888, he waived a hearing before the magistrate, by whom he was then committed to the jail of the county. On the 6th of January, 1888, an indictment was found and returned against him by the grand jury.

The habeas corpus was allowed December 30, 1887, by the president judge of the Court of Common Pleas to whom the petition for it was addressed, and made returnable January 6, 1888, before him, described as “ one of the judges of the court of Common Pleas.” A full hearing was had upon it and on the 9th of January, 1888, an order was made remanding the defendant to the custody of the sheriff. All the proceedings *572upon the writ of habeas corpus were in the Court of Common Pleas, as the record shows, and a certified copy of the record containing these proceedings was filed in the court of Oyer and Terminer September 28, 1888. As the writ was allowed and issued within fifteen days next preceding .the session of the court of Oyer and Terminer where the crime with which the petitioner for it was charged, was cognizable, it should have been made returnable before the judges of that court: Commonwealth v. The Sheriff, 7 W. & S. 108.

Upon this record it is urged that it was the duty of the court below to quash the indictment, and having refused to do that, to arrest judgment on the verdict. No decision of this pr any court has been cited to sustain this view of the law, and the counsel who advocate it confess that their research has failed to discover one. They direct our attention to a remark of the present Chief Justice of this court in Commonwealth v. Bartilson, 85 Pa. 488, which we quote in connection with the language which explains it: “We do not deny the power of the court to quash an indictment for matters not appearing on its face. This is sometimes done for defects in the process of drawing and summoning the grand jury, or irregularities connected with the jury wheel, and where an indictment is found pending a writ of habeas corpus. It is a power, however, that should be exercised with great caution, especially where it is for some defect of proof.” In the case in which this language appears, the quashing of an indictment by the court below for defect of proof was held to be error. The remarks quoted were made in discussing and illustrating the power of the court to quash an indictment for matters not appearing upon its face, and did not announce, and were not intended to declare, that it was the duty of the court in all cases to quash an indictment found pending a writ of habeas corpus. As the statute of limitations in criminal procedure runs from the commission of the offence until indictment found, cases might occur where the rule contended for would defeat justice by suspending or setting aside proceedings necessary to save a prosecution from the bar of the statute. We have been referred to the case of Commonwealth v. Hoey, 8 Phila. 370, as supporting the view of the plaintiff in error, but we do not so regard it. It decides that the pendency of a writ of habeas corpus in another court *573is not cause for suspending or setting aside proceedings in tlie court baying jurisdiction of tlie offence. In our case, tbe court of Oyer and Terminer bad jurisdiction of tbe crime witb wbicb tbe defendant was charged, and proceedings there could not be disturbed or affected by tbe pendency of a writ of habeas corpus allowed on his petition in tbe Court of Common Pleas. We cannot convict the court below of error for refusing to quash the indictment, or to arrest judgment on the verdict.

No misconduct is imputed to the sheriff in the drawing of the petit jury. If there was any irregularity, favor, or prejudice in the act of drawing, it is not charged or shown. Indeed it is difficult to perceive how the sheriff, could, in the presence of the jury commissioners and without their complicity, exhibit partiality in it. The selection of jurors is an act which involves the exercise of a sound discretion, and is judicial, while the mere drawing of a jury under our present law is a ministerial act in which there is no room for bias. The sheriff was not a party to the issue, and he had no interest in it except in' common with all good citizens. As a conservator of the peace and in aid of public justice he made the information on which the warrant wrns issued. An information made under the circumstances and in the manner of this one is not a disqualification of the officer making it, and does not interfere with the discharge of his official duties which are merely ministerial. A suspicion or belief cannot exceed in disqualifying power, actual and personal knowledge, and an avowal of the former can have no greater effect than the statement of the latter. Whether the avowal or statement be oral or written, is of no consequence. If the sheriff had been an eye witness of the crime and had arrested the perpetrator on view of it, he would have discharged a plain duty and no disqualification would have resulted from his knowdedge or his action upon it. We conclude that the refusal of the court below to quash the array of petit jurors was not error.

The fifth specification is.without merit and is not sustained. It is the right and it is sometimes the duty of the court in the voir dire examination of a juror to interrogate him as to the opinion he has formed, its source and character. The questions in this case were unobjectionable and in the line of approved practice.

*574The four assignments of error which relate to the action of the court below on defendant’s challenges of jurors for cause, involve the question whether the jurors so challenged had such opinions of the guilt of the accused as rendered them under the decisions of this court incompetent to serve. As a fixed opinion denies to evidence its proper effect, and prevents an impartial trial, it is a disqualification of the juror. Whether the juror has such an opinion, is to be determined upon evidence, and the usual and proper practice is to examine him on his voir dire as to the opinion he has formed. If from the evidence elicited by such examination it is found that he has a fixed opinion, the challenge is sustained; if it is not so found, the challenge is overruled. The disposition of the challenge depends on the finding of a fact, and in passing upon such finding here, we must consider the evidence as a whole and remember that the examination was in the presence and under the direction of the court below and that it had better opportunity to discover the nature and character of the opinion held by the juror than is afforded this court in review.

A juror in the course of his voir dire examination, and in response to some question addressed to him, may say that he has a fixed opinion, while his answers, taken together, may satisfactorily show that this is a misdescription of the opinion he holds. An isolated answer is not decisive of the question under investigation, but it must be determined upon the whole evidence affecting it. A careful study of the evidence of jurors Riggle, White, South, and Dulaney has failed to convince us that either of them had a disqualifying opinion. We think that under the decisions of this court in Staup v. The Commonwealth, 74 Pa. 458, and the subsequent cases on this subject, they were competent jurors. The assignments which relate to the qualification of jurors are not sustained.

It was proper for the commonwealth to show that the point in the field where it was claimed defendant and Taylor were seen by Parker the morning of the .murder, was in plain view of the point where Parker said he stood when he saw them, and that there was no intervening object or obstruction in the line of vision between them. To the objection that this evidence, if admissible at all, could only be received in rebuttal, the answer is, that the order of the testimony was in the dis*575cretion of the court below. It is true that the observation of the witness was made in March when there were no leaves ou the trees, but it is not claimed that there were trees in the line of vision between those points, or that any obstruction was in that lino in September, that was not there in March. The assignments which refer to the admission of this evidence are not sustained.

The remaining specifications invite a criticism of the charge of the, learned president of the Oyer and Terminer, and allege inaccuracies and omissions in it prejudicial to the defendant. Particular exception is taken to the quotation from the charge of Chief Justice Gibson in Commonwealth v. Harman, 4 Pa. 269. In McMeen v. Commonwealth, 114 Pa. 305, the language objected to was held by this court to be entirely proper when applied to the evidence in the case, and it was there said, “ undoubtedly a juror should be convinced from the evidence where he would he convinced as a man, and where the language is applied in this way we see no technical error.” As in the case under consideration it was so applied, there was no error in its use.

We think, upon a careful review of the charge, that the claims and evidence of the commonwealth and the defendant were correctly, fairly, and adequately presented by it. No question was made as to the character and grade of the crime, it was without doubt a deliberate and mercenary murder. There was no evidence on which it could be reduced to a milder form of homicide. The omission of instructions on the law of voluntary manslaughter and the power of the jury to find it, was not error: Brown v. Commonwealth, 76 Pa. 339; McMeen v. Commonwealth, 114 Pa. 305.

The specifications which call in question the fairness and adequacy of the charge are not sustained.

The judgment is affirmed, and it is ordered that the record be remitted for execution.