Commonwealth v. Conroy, 207 Pa. 212

Commonwealth v. Conroy

207 Pa. 212 | Pa. | 1903

Opinion by

Mb. Justice Dean,

In this case the jury found defendant guilty of murder of *215the first degree. There appeared in the evidence every element necessary to establish the crime and the court passed sentence accordingly. The defendant now appeals, assigning' for error:

1. The court erroneously construed the act of the 9th of July, 1901, relative to the challenging of jurors.

2. The court wrongfully permitted the commonwealth to adduce certain alleged rebutting evidence after defendant had' closed his case.

8. The court erred in its charge as to what constituted a reasonable doubt, and in giving undue prominence to the commonwealth’s evidence.

The act of 1901 has this provision: “In the trial of misdemeanors and felonies triable exclusively in the courts of ojmr and terminer and general jail delivery, the commonwealth and the defendant shall each be entitled to twenty peremptory challenges, all of which challenges shall be made and assigned by the commonwealth and defendant respectively, when the juror is called.”

Under this provision defendant’s counsel moved the court, on their interpretation of the act, to direct the commonwealth in every case to first accept or challenge the juror when first called, before turning him over to defendant for acceptance or challenge. This motion the court overruled. It appears that the practice in Allegheny county, both before and since the act of 1901, has been, when the first juror is called and sworn to make true answers to questions touching his qualifications, that the counsel for defense begins the examination; then after such examination, neither accepting nor rejecting, turns him over to the commonwealth’s counsel for examination, which after such examination may accept or reject; that is, may accept or challenge for cause or peremptorily; the defendant may still however, if the juror be accepted by the commonwealth, challenge peremptorily. Then, as to the second juror, the defendant is required to first challenge for cause or peremptorily afüer examination; if accepted the juror is turned over to the commonwealth which can accept or- peremptorily challenge him. As to the third juror, the commonwealth again first exercises the right to accept or challenge peremptorily, and so on, alternately, until the jury is made up. This is to interpret the *216word “ respectively ” in the act of 1901, as synonymous with the word “ alternately ” in the act of 1860, which says, “ the commonwealth shall challenge one person and the defendant one person and so alternately until all the challenges shall be made.” The act of 1901 did not repeal the act of 1860, nor was it intended to have that effect; the latter act is a supplement to the former. Its purpose was to take from the commonwealth the right to stand aside jurors until the panel was exhausted, and put the commonwealth upon an equality with defendant as to the number of peremptory challenges. While the word “ respectively ” is not given precisely the same meaning by lexicographers as the word “ alternately ” yet the legislature used the word “respectively” in the act of 1901 in the same sense as that of 1860 used the word “ alternately ” and this meaning accomplished the purpose of the act—equality. This equality was preserved by the practice of the court below; the defendant was deprived of no substantial right; he practically obtained a jury of his own selection from the panel. There was no error, not even a technical one.

As to the second error complained of, that the court improperly allowed the commonwealth, after all the evidence had closed to introduce further evidence bearing against defendant, that was a matter in the sound discretion of the trial judge. The defendant had sworn there was a violent struggle between him and deceased for possession of the pistol; the commonwealth called a witness, one Hartman, to prove that from the position of the body on the bed there could not have been such struggle. That such a statement would be made by defendant the commonwealth could not have anticipated; that it should go wholly uncontradicted, merely because defendant was the last and only witness to testify to such a fact would have been gross injustice to the commonwealth; clearljq its admission, although somewhat out of place, was within the discretion of the trial judge.

As to the third assignment, as to what constitutes a reasonable doubt, the instruction was strictly within the line of decisions on that subject. Further, as to the complaint that undue prominence was given the commonwealth’s evidence and but little reference made to defendant’s, that arose from the inherent weakness of defendant’s case. The essential facts tending to *217demonstrate the existence of malice, deliberation and premeditation stood out bold, clear and prominent; the mere statement of the facts established guilt and necessarily made them prominent; the attempts to contradict them were weak and not calculated to raise the least doubt. It was beyond the power of a court, even if it had so desired to help defendant by any reference to the facts or testimony.

All the assignments of error are overruled and the judgment of the court below is affirmed. It is directed that the record be remitted to the court below that the judgment may be carried into execution according to law.