Commonwealth v. Delamater, 145 Pa. 210

Commonwealth v. Delamater

145 Pa. 210 | Crawford Cty. Ct. Qtr. Sess. | 1891

Opinion,

Mr. Chief Justice Paxson :

There are nine of these cases, and they all involve the same principle. Three of the defendants were members of the banking firm of Delamater & Co., and were indicted in the court below, at the instance of a number of prosecutors, for the offence of receiving the money of said prosecutors knowing the bank to be insolvent. In the case No. 15 of February Term, in the court below, to which I shall more especially refer, it is charged that the money so received was the money of the county of Crawford. Four of said cases appear to be against Victor E. Delamater alone, who is charged with the same offences, as the cashier of the bank. A petition in each case was presented to this court, near the close of the term in the Eastern District, praying for the allowance of a writ of certiorari, for the purpose of bringing up the record in order that the venue might be changed by an order of this court. Upon the presentation of the petition we granted a rule to show cause, returnable at Harrisburg, in the Middle District. The case *217was heard on the last day of the term, too late to dispose of it at that time with the care its gravity requires.

The grounds of these applications, briefly stated, are that at the time of the failure of Delamater & Co. there were over a thousand individual depositors in said bank; that these depositors resided in nearly every township and district in said county, and are greatly excited and prejudiced against the petitioners by reason of the failure of the said bank; that this excitement and prejudice extends from said depositors to their neighbors and friends in every district throughout the county; that inflammatory articles against the petitioners have been printed in the public newspapers published in said county; and that by reason of all these causes the petitioners cannot have a fair and impartial trial in said county. In support of this allegation, we have the sworn statement of the petitioners and a considerable number of other citizens of Crawford county. On the other hand, the commonwealth, in answer to the rule served upon the district attorney, emphatically denies that any such feeling or prejudice exists against the petitioners as will prevent a fair and impartial trial, and have furnished us with the affidavits of a large number of citizens to that effect. These affidavits exceed in number those presented on behalf of the petitioners; the age, occupation, and residence of each affiant is stated, showing that they are scattered over the body of the county. The commonwealth further contends that some, and perhaps the most objectionable, of the alleged inflammatory articles were published in a small paper of little circulation and influence, while the majority of the papers of Crawford county have treated the petitioners with reasonable fairness, and that some of them are friendly.

There is no question of our power to grant the relief prayed for. That was settled in Commonwealth v. Balph, 111 Pa. 365. But, as was said in that case, “ it is a power to be exercised with extreme caution,” and, we may add, only in a clear case. It must be exercised in aid of the administration of justice, not to defeat it or needlessly embarrass it. That the Balph case differs widely from this in its facts plainly appears from the following extract from the opinion of the court:

“ Without entering into detail, it is sufficient to say that the case arose out of a conflict of jurisdiction between the Court of *218Common Pleas of Warren county and the Court of Common Pleas No. 2 of Allegheny county, in regard to the appointment of a receiver, culminating in the appointment of such officer by each court, and an attempt by each to enforce its own orders and decrees. So far did this proceed that the court of Warren county discharged upon habeas corpus a person adjudged guilty of contempt by the court of Allegheny county, and who was in custody under an attachment. The petition further averred that a fair and impartial trial before a judge and jury of Warren county could not be had because of the excitement and prejudice existing against them in said county, not only on the part of the public generally, but by the jurors likely to be empaneled in the cause, and the judge before whom the case would be tried.”

In the case in hand, the only allegation is that a prejudice exists which may affect the jurors; and the fact that in one of the indictments the county is the prosecutor, and the money lost the county money, was pressed upon us as a reason why the prejudice, if it exists, probably extends to the whole body of taxpayers, including, of course, the jurors. But we are unwilling to believe that such a fact would influence the action of a jury of Crawford county. There are cases constantly being tried, of a quasi public nature, in which jurors, as citizens and taxpayers, are interested to some extent. If such interest would disqualify a juror, cases might arise where an offender could not be tried in any county of the commonwealth, as, for instance, on an indictment for the embezzlement of state funds. In Philadelphia, and perhaps some other counties of the state, county treasurers have been indicted and tried for the embezzlement of the county moneys, and I have never heard it even alleged that an impartial jury could not be obtained because of their interest as taxpayers. It would be an inconvenient rule to adopt, and recent events warn us not to be hasty in doing so.

It will be observed that it is not alleged in any of the petitions that the prejudice referred to extends to the learned judge, or that he is even likely to be influenced by it in any degree. 'That such fact is not alleged is conclusive that it does not exist. We have the right to assume, and from our personal knowledge of him we can do so confidently in this case, that the *219learned judge below will do his whole duty, fully, fearlessly, and impartially. That duty will require him to see to it that the petitioners are not convicted upon insufficient testimony, and to set the verdict aside if improperly rendered. Should there be any error in his rulings, the petitioners are entitled to their bill of exceptions, and there is not a judge of this court who would not promptly allow an appeal in case the record should disclose even a fairly debatable question.

We cannot measure this case by the acts of assembly allowing a change of venue in civil cases. That body is clothed with legislative powers, and may grant such change in any case in which, in their wisdom, they may consider that public policy requires it. On the other hand, our powers are restricted, and can only be exercised where it clearly appears that such exercise is necessary to secure an impartial trial. We are not so satisfied in these cases, under the facts as presented. That a prejudice exists to some extent in Crawford county, against the defendants, may be conceded. This is almost always so in the case of the failure of a bank with a large number of depositors. Yet it by no means follows that this feeling is so strong and universal that, among the large and intelligent body of men who in a great measure compose the population of Crawford county, a jury cannot be found who will try the petitioners fairly, upon the law and the evidence, and not otherwise. It is further to be observed that popular feeling of this kind is fleeting in its character, and soon passes away. The delay that has necessarily resulted between the granting of these rules and the disposal of them by this court will naturally tend to allay public feeling and soften prejudice. We are all of opinion that the rule in each case must be discharged,

And it is so ordered.