243 Pa. 171 | Pa. | 1914
Opinion bt
In the first assignment'of error here filed, counsel for .appellant urge that the tidal court erred in refusing to quash the array of juror's;
When the writ of venire was issued, it was attested in the name of “The Honorable R. W. Archbald, President Judge of our said court at Scranton, &c.,” whereas, in
“Unless the form or sufficiency of the order (to the officers /charged with the duty of procuring jurors) is es*176 sential to the validity of the action of the commissioners or other like officers, mere informalities or irregularities which do not cause a positive violation of statute may be disregarded.”
In Rolland v. Com., 82 Pa. 306, where the jury commissioners omitted to make any return to the venire, Mr. Justice Paxson said (p. 322) : “This omission could and ought to have been supplied by the court below as soon as its attention had been called to it by an order upon the jury commissioners to return the venire. It was but an amendment of the record, and a record may be amended even after writ of error or certiorari lodged in the office: In re Sheppard’s Election, 77 Pa. 297 ..... The error is more formal than substantial, and the court below appears to have had such evidence before it as satisfied its conscience that the law had been complied with in all important particulars.”
In Brown v. Com., 76 Pa. 319, Mr. Chief Justice Agnew said (p. 336) : “In Dyott v. Com., 5 Whart. 67, (cited in the paper books) it was held that after a prisoner stands mute, a plea of not guilty is entered for him and he participates in the trial and is convicted the case falls within the Act of February 21, 1814, 6 Sm. L. Ill, enacting that a trial on the merits, or pleading guilty on the general issue, shall be a waiver of all errors and defects in or appertaining to the precept, venire, drawing, summoning and returning of the jurors......We do not think this decision is applicable to a case whére the prisoner makes his objections at first to the panel of jurors, and, on their being overruled, takes a proper bill of exceptions; but the decision is strongly illustrative of the unwillingness of courts to sustain objections to the jury, grand or petit, after a full and fair trial on the merits.”
It appears, also, from the record in this case, that the jury wheel, which was sealed by the sheriff and both jury commissioners, there being three seals, was opened at the proper time in' the presence of the sheriff and one
The Act of April 10,1867, P. L. 62, section 3, provides that the jury commissioners and shériff, “or any two of them,” shall draw from the proper wheel panels of jurors, &c. The terms of this act were met in the present case. But it is contended that the Act of March 18, 1874, P. L. 46, which was a supplement to the Act of 1867, changed the law. The Act of 1874 provided for the selection of a new panel when a challenge to the array of a former panel has been sustained, or the array quashed. In the first section, enumerating the instances in which a new panel may be chosen, it is said: “If by accident, mistake or neglect of the sheriff or jury commissioners of any county, or either of them', the wheel aforesaid has been opened, unlocked or unsealed, except in the presence of such sheriff and jury commissioners, and a challenge to the aiTay has been sustained for any of the last-mentioned causes.” This language, it is suggested, changed the requirements of the Act of 1867, and permits the wheel to be opened only in the presence of the sheriff and two commissioners. We do not see in it any intention to repeal or amend the Act of 1867, in this respect. Its purpose is to provide a method of supplying jurors when a previous array has been quashed. That is not the case here. The jury commissioners may be regarded as a body, and as such, the Act of 1867 authorizes one of them representing the body, and acting with the sheriff, to draw panels of jurors from the wheel. The power to draw from the wheel includes manifestly the right to open it. We are of the opinion that the court below was right in refusing to quash the array of jurors.
In the second and tenth assignments of error, counsel for appellant complain of the admission of evidence of
If the jury believed this testimony, it was sufficient to justify the conclusion that appellant was alarmed by the presence of the officers, and fearing arrest for the robberies in which he had participated a few days before, attempted to escape. That in pursuance of a previously expressed purpose, he armed himself with a revolver in order to shoot if he could not otherwise get away. Meeting an officer in front of the house, he did shoot. The testimony as to his participation in the robberies was relevant. It tended to show intention to commit, and motive for, the alleged crime. The distinction as to such evidence is thus stated in 2 Wharton on Crim. Ev. (10th Ed. 1912) sec. 920, where it is said: “The well-settled rule that evidence of collateral crimes cannot be introduced on the trial of the homicide charge, is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of the charge on trial, and the circumstances surrounding the collateral crime are essential to proof of or to explain the crime charged.” And in 12 Cyc. 410, it is said, on p. 410: “Evidence to show the motive prompting the commission of the crime is relevant and admissiblé notwithstanding it also shows the commission by the accused of another crime of a similar or dissimilar character. Thus it may be shown that the crime was committed for the purpose of concealing another crime, or to prevent the accused from being convicted of another crime.”
Under these well established principles, the trial court was clearly right in admitting evidence of appellant’s participation in the robberies. All the assignments relating to the admission of evidence as to this fact are overruled.
In the thirty-first assignment it is alleged that the trial judge erred in that portion of the charge relating to the dying declaration of McAndrew. The statement
In none of the other assignments do we find anything that is worthy of discussion in detail. We discover no error in the record. It shows that appellant had a fair and impartial trial, and that the verdict was warranted by the evidence.
The sentence and judgment of the court below is, therefore, affirmed, and it is ordered that the record be remitted for the purpose of execution.