*1 474 In both terminal must days other words,
§12198-1012.
computation.
from the
be excluded
Act
and
Construction
Statutory
itself,
§§31
expressly provides
46 PS
and
such
533,
33,
§§531
that “in the construction
result,
stating
§31
forth in
shall be ob
. . . the rules set
this article
laws
re
of such rules
application
unless
would
served,
in a construction inconsistent with the manifest
sult
intent of the
and
“Words
stating:
Legislature”;
§33
and
shall be
to . .
their
phrases
according
construed
.
common
approved
and
. . .” When the
usage
Legisla
ture
least
three
requires
days
must
intervene
between introduction
and final
ordi
passage
an
cannot be otherwise than that three
nance,
meaning
full
come
days must
between the two days mentioned,
both terminal dates to be excluded. Cf. Coleman v.
It Quar- follows that the two orders the Court of ter Sessions of Lancaster County involved Appeals Nos. 337 and 338 January must be re- Term, 1955, versed, and the ordinances are hereby declared null the costs to be void; paid City Lancaster.
Commonwealth, Appellant. v. Coleman, 1955. Before Argued November 14, C. Stern, J., Musmannq JJ. Stearns, Jones, Bell, Arnold, *2 I. Raymond with him Morton Within Kremer, WitMn & for Egan, appellant.
Victor Assistant District Wright, with Attorney, him Vincent G. First Assistant Panati, District Attor- and Samuel ney District Dash, appellee. Attorney,
Opinion Per Curiam, January 5, 1956: The judgment of the Superior Court is affirmed on opinion Judge in 179 reported Pa. Supe- Ervin, rior Ct. 1. by
Dissenting Opinion Mr. Justice Musmanno: I would grant new trial this case for one of three reasons: (1) Two strangers had dinner with The trial assistant jury; (2) district attorney, evidence the case that the defendant awas Republi- can ward that the leader, charged Republicans had mis- ruled for 69 Philadelphia years; (3) The assistant dis- trict attorney told that he could not call cer- tain because of fear witnesses they might possibly be of whom defendants, presumably
murdered, one. here was appellant the jury. dined strangers
1. Two may trial that judge to the it appears When May Act of under he may, protracted, unduly the selection 1935, allow §1153, 17 P.S. P. L. 127, 1, near be seated shall “who of two additional or die may or two who of one the place to take jury,” such Act to cover The incapacitated. become if that so during trial, may arise emergencies the alternates time, substitution occurs within the final submission upon discharged “shall be states Act also specifically jury.” case to the twelve not retire with “shall the alternates it.”* the case is submitted *3 chosen jurors were In two additional the case at bar, March until the last the trial day, and attended upon Judge that the Trial day on p.m. 1954. At 6:45 24, jury having the without instructions to his completed his It became duty, the alternates. to use two had the as to discharge at that moment, alternates, then, Prom that directs. instant mandatorily the Act than jury more to sit with right had no alternates The alter- in the courtroom. two the spectators did formed of the really part jury. case never nates this and could func- not were, vice-jurors, They were, or lieuten- vice-presidents tion as more than jurors any in an may capacity act executive unless ant-governors their die or are disabled. principals citation of that a authority
It needs no show case jury to the when the Judge completes is “submitted” properly his declared charge. Judge, therefore, of his at the termination instructions services alternates no be on longer of two “will required
* italics, All mine. point jury.” alternates this At the two were plumb- privileged participate than in the trial more prerogative to dine and socialize ers remain have repair they completed family have with the they called. But the learned Trial work which were Judge thanking bidding of the alter- instead here, good-night good-bye, nates as he should have done, unquestionably spirit hospitality, invited in a them— good cordiality and nature —to dinner have jury. compounded This was error. He then the error by adding “I that: am certain that [the alternates] be will interested the outcome that will be arrived colleagues jury their in the box.” As a matter reality, original colleagues longer were no twelve ending of the two alternates. With of the trial, disappear law intends that the shall cur- behind a impenetrable tain which not to alternates declaring By but to the entire world as well. that the alternates would “be interested in the outcome,” Judge suggested, unintentionally of that the al- course, right ternates had a interest satisfied. But, far so as the law is concerned, interest of the alter- higher general nates could curiosity arise no than the public, intermingled of which were now an part. Judge The fact that the said: “Do not discuss you the case until retire to the room” did not scrape patina authority off the which covered his *4 declaration that the alternates were “interested in the outcome.”
Did the advantage two alternates take of the frater- nization with the twelve at dinner to ascertain what that outcome was to be? The record does not state long how the dinner lasted but it does not seem that the overall very deliberations of the lengthy were since p.m. the verdict was returned at 11 Nor was there formal truncation of the association between jurors. au- were the The alternates the and alternates jurors, go no one the but dinner thorized to with specified authority supervised and no one the dinner, in depart. ob- This the time the were alternates viously very a in which to handle manner loose liberty person the of a matter concerned vital which trial. on days eight happened the For the
What dinner? eight jury. In two alternates had associated usually days friendly relationship very and can does engaged develop among in a com- are Americans who enterprise, from rest of mon somewhat detached workaday of this said, world. Can it be view type day, the four- that on the last as of camaraderie, friendly they sat dinner all sealed table, teen at the subject lips been their constant their which had on eight profound preceding source of interest for days?
Knowing can it human nature as we be said do, companions their as the fourteen buttered salted bread, ketehuped peppered soup, their and their their meat, spice vegetables, added of a on no one comment eight days? the case which had been their fare for And during last few moments at the the two those table, cups away pushed their alternates drained coffee everyday expe- plates, dessert consistent spilled rience that not assume a word was on witnessing, had been to a drama which great eight participated days? had extent And if there one reference to the defend- case, ant is to a entitled new trial because former two jurors speak alternate no more entitled to to the were twelve on the case than were waiters who them food. served their granting of a new not de-
Moreover, does proof pend actually on that the two alternates did dis-
479 colleagues. enough cuss the case with their It former is they opportunity to vitiate the trial had discuss it. In the monumental case Commonwealth Superior v. 164 Pa. Krick, Ct. two alternate 516, 521, jurors went into the room the other twelve argued and remained there ten minutes. It proof that case that there was no that the had im- two properly original discussed the evidence with the ordering Superior but in twelve, new very fairly courageously way said: “We knowing whether the alternates deliberated with the during any way other twelve those ten minutes or in say influenced their but we cannot with fair decision, assurance that the error was harmless ... To allow the any opportunity alternates to deliberate with the others after the case had been submitted was a direct violation of the Act, constitutes reversible error.” It cannot be denied and it is not denied that the alter- nates here opportunity had the to discuss the case with original twelve. unless the Krick Therefore, case incomprehensible is which it it overruled, is is not, me how decision in this case can stand. The facts appeal before stronger us on this are even than jurors were in spent the Krick case since the here illegal colleagues least an hour with their former where- improper as in the Krick commingling case the limited to ten minutes. ruling
Under the
in the case of Commonwealth ex
Darcy
Claudy,
jurors
rel.
may
v.
During the of cross-examination a Commonwealth purpose showing- defense for the witness, of counsel, changed registra- asked the had witness if he bias, his Republican got- tion from to Democratic and not had job City ten a under Charles Baker, “Democratic Com- whereupon missioner,” the trial assistant district at- torney only remarked: “He would be a Democrat be- years cause the Mr. Democrats are after 69 in, Witkin, of misrule.” Since it was well-known that the defend- Republican ant was a ward leader, reference to the Republicans being guilty years of 69 of misrule could prejudicial right be to him. The accused the had to be tried on his own record and not on what the en- Republican Party might might tire or not have done years. proper in 69 It was not that he should be smitten proved as was Balaam’s ass with faults not to be his own.
When defense counsel moved the withdrawal of juror, adjured a the motion was denied and the Court jury: strongly “The urged will ignore completely Republicans all references to and Demo- crats. We are here as Americans. We are not con-
482 any allegiance party the witnesses of of
cerned -with any persons referred or the defendants or of to.” adjuration The assistant not sufficient.
This reprimanded attorney for his been should have district the trial turned at least for which, moment, remark away political a sol- serious, from into a contest charges in the of of the truth ascertainment emn po- made reference no course, indictment which, parties. litical Republicans years charge misrule
To Repub- suggest since he was defendant, upon part him a saddled of that misrule, lican, place right to the Commonwealth had no burden which upon should have been so instructed. him—and judge keep essential function of The most relevancy testimony flowing channel of so in the bearing having disputations on on as to issues avoid guilt question The dis- or innocence. assistant attorney apologized to the Court for his remark trict charge allowing the he did not retract thus it, but hang nei- the cliff of indecision, over rope ordering cutting let ther it withdrawn or abyss it fall of harmless error. into Attorney’s District remark that cer- Assistant *8 3. might he tain witnesses killed. participated colloquy In as- Court, ques- attorney and defense district counsel, sistant why person, Buddy as to a certain Mitchell, tion arose Philadelphia Georgia by brought from the Common- testify. During colloquy called to this was not wealth, following purpose “Mr. occurred: Witkin: offering that letter to contradict Common- that wealth’s witness I will refer later. The Court: n Crippins: your pleases, Mr. If It Honor Mr. is in. any is Mitchell’s name not on he was not bills; grand jury, I used can assure Mr. Within ques- that there are certain other witnesses who were again tioned for weeks who were not called here, security give their reasons. can’t names. The We improper produce Court: It be that would evidence. Crippins: They sitting Mr. were here in this courtroom not called because we want them were to Uve May please this over. is Mr. Within: Your Crippins just Mr. Honor, has made the statement— Crippins: addressing Mr. He made—Mr. Within: I am Crippins just the Court. Mr. has made the statement they have not been called because ‘we them to want Crippins: right. live after the case is over.’ Mr. That is prejudicial Mr. Within: I know of no remark more Roy than defendants this and on one, behalf of my colleagues Dixon and also on behalf of for their re- spective again reluctantly I most defendants, and un- willingly juror.” ask for the withdrawal of a Crippins’
Mr. remark that certain witnesses were not called because he wanted “them to live after this only could mean that if over,” those witnesses testi- fied would be killed. Since the witnesses would testifying against be the various defendants on trial, Roy of whom Dixon it could be one, inferred that the killers would be the defendants or other killers operating charge by in their behalf. This monstrous attorney possibly assistant district could not by cured instruction from the Court. Even so, against flagrant propriety breach of and this in- imputation conspiratorial excusable murder, merely “ignore cautioned the last few spoken by Crippins.” words Mr. What were “last imperious duty few words?” At this instant an de- upon Judge volved the Trial either to declare a mis- explain easily-understood language trial or to Attorney the Assistant District was out of order, *9 there protect and that witnesses, all would the Court do or could defendant would that the no evidence Judge’s Failing words this, harm. the witnesses jury to meaningless, allowed “caution” were of capable of visit- indeed that the defendant believe great the witnesses. ing on death, even harm, com- Mr. Witkin that when to be noted
It is also Crippins’ plained statement about to Crippins Mr. is over,” them to live “we want with utterance dogmatically indefensible his reaffirmed right.” could This bravado “That the remark: part of convey formed that the defendant wiping capable dared gang who out witnesses a scarcely testify against There is associates. him and his against brought charge that could be a more serious remain any litigant it must now laAV; in court of a Majority Reports enigma how in the State an go gross un- dereliction could allow so this Court corrected. pages printed record there
In the entire 900 justify testimony syllable insidious is not a appellant Com- threatened here insinuation enough say, It is not witnesses. momvealth remarks of the that the has contended, Commonwealth jury acquitted prosecutor since effect were without him on certain counts and convicted on the defendant prosecutor’s homicidal innuendo, Without others. acquitted all might defendant on counts. figure attorney potent prosecuting in the is a quasi-judicial Avith criminal law. Clothed
arena of displaying clouds of power, and control over direction regularity appearing before witnesses, through moving the courtroom after trial, charge familiarity fulminated him and assurance, legal atmosphere battle takes on, of a in the awesome *10 eyes jurors, in the of the the aura of authoritative fact. Especially long is this true if the trial is a one easy prosecutor, It defendants are numerous. for the convey impression setting, in such a some among or form another there stalks defendants the phantom sinister of dire deeds un- unrecorded and proved, hut nonetheless and of which he existent, alone, prosecutor, Why is aware. otherwise would he grave imputation? jury hurl an so is then further impressed merely when the Court mentions to the ignored. Telling that the remarks are to be ignore weighty asking so a denunciation is like them forget dagger, seen the flash of a if in fact have seen one. attorney charged
As soon as the assistant district that his witnesses travelled under the threat of assas- sination at the hands the fairness of defendants, lightning rips the trial open torn asunder as sky Although in a storm. the Court refused to with- juror draw declare a mistrial mistrial, none- longer theless followed. What ensued nowas a trial mockery. process but a mere disap- sham and Due peared, neutrality impartiality vanished, ceased to ex- mercy and the ist, defendant was at the ac- invisible caprice, ominous cusers, and remorseless chance. I dissent. joins
Mr. dissenting opinion Justice Bell in this grounds to the first and third therein set forth. Appellant, v. Shahboz. Soltan,