3 Pa. Super. 304 | Pa. Super. Ct. | 1897
Lead Opinion
Opinion by
The defendant has a constitutional right to trial by an impartial jury. The question whether he has had such trial is raised by the assignment of error to the ruling of the trial judge on the defendant’s challenge of the juror Joseph T. Nevin.
The cause of challenge, while not specifically set forth, as would be the better practice, appears from the tenor of the examination to hare been that the juror had, in effect, prejudged the case, or had contracted a bias such as to interfere' with an impartial judgment.
In all the reported cases in this state, in which an alleged prejudgment has been made the cause of challenge, the examination of the juror has shown nothing more than the formation of an opinion from newspaper or other reports, or from reading the testimony given on a previous hearing or trial. In such cases the rule is well settled that “if from the examination of the juror, it appears that he has the ability and disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change his impressions or opinions formed from what he had heard or read about the affair under investigation: ” Com. v. Crossmire, 156 Pa. 804. An exception is made of an opinion formed from hearing or reading the evidence on both sides on a former trial; “ such knowledge excludes the idea of impartiality : ” Allison v. Com., 99 Pa. 17; Staup v. Com., 74 Pa. 458; Ortwein v. Com., 76 Pa. 414. But evidence taken before the coroner is not held to create an undue bias: Ibid.
The juror, however, is not to be the final judge of his own frame of mind. It must appear judicially from the attending conditions that the juror “stands indifferent” between the commonwealth and the prisoner, and can reach a conclusion uninfluenced by a preconceived opinion. In Staup v. Com., 74 Pa. 458, the juror, after saying that he had read the evidence on a previous trial, and upon that had formed an opinion as to the guilt or innocence of the prisoner, which he still entertained, and which it would take some evidence to remove, added: “ This opinion would not bias or influence my judgment if I were sworn as a juror. If sworn as a juror I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiased by my present opinion.” Not
A challenge may be based on previous conduct by a juror, indicating a bias, as well as on a previously formed opinion. In Com. v. Mosier, 135 Pa. 221, a juror challenged by the commonwealth had conversed with the defendant and had exchanged cigars and drinks with him. The Supreme Court said: “We think this was sufficient. The commonwealth was not bound to accept a juror who had been on such easy terms with the defendant.” E converso, a defendant would not be bound to accept a juror whose conduct had indicated in equal measure a bias against him. In Com. v. Cleary, 148 Pa. 26, after reversal of a conviction of murder in the first degree, a petition by residents of the county was presented to the court, setting forth that the petitioners were “ of the opinion that the requirements of justice will be fully satisfied” by a plea of guilty of murder in the second degree, which the prisoner was willing to enter, and praying the court to receive such plea. A juror who had signed this petition, though not challenged, was held incompetent by the trial judge; and this was sustained by the Supreme Court, Mr. Chief Justice Paxson saying: “It (the petition) was a deliberate expression of opinion on the part of the petitioners as to the merits of the case, reduced to writing and signed by this juror. We do not think the juror, under the circumstances, should have been allowed to say that he could try the case impartially. Every man who signed that paper disqualified himself from serving as a juror on that case, and the learned judge below was entirely right in dismissing the juror in the summary manner he did.” In Com. v. Toth et al., 145 Pa. 308, two jurors, who had served on a jury which had convicted twenty-four persons of riot, were in the following week allowed to serve on the trial of three of these persons for a murder committed during the riot. But it must be borne in mind that participation in a riot by no means implies complicity or even suspicion of complicity in a murder or other crime committed during the riot. Mere presence, giving countenance and acquiescence, is sufficient to convict of riot, and whether the defendants in this case had been proved guilty of more, when tried for riot, does not appear. Nór did the jurors who had served on the trial for riot appear to have had any
In the present case the juror testified that he had formed and expressed an opinion with reference to the guilt or innocence of the defendant, but not of a character to prevent him from fairly trying the case, and that if sworn as a juror he could render a verdict in accordance with the evidence produced in court. Prima facie, therefore, he was competent as a juror. But this preconceived opinion was not the only ground of challenge. It further appeared from his testimony that he was one of the proprietors of the Pittsburg Leader; that many editorials had been published in the Leader, from time to time, pronouncing the defendant guilty of the charge; that the juror had read these editorials, and had “ approved of the sentiments expressed in them with regard to this case.”
It does not appear from what source the juror’s opinion was derived. But the opinion seems to have been so deliberately formed and so firmly entertained that the journal of which he was.part proprietor, with his knowledge and approval, and as a feature of the business from which he derived a profit, set about the work of creating and stimulating public opinion against the defendant, and of propagating a belief of Ids guilt, and editorially, from time to tune, pronounced him guilty of the charge; a proceeding which, unless justified by the facts, would subject him to serious penalties both on indictment and private action for libel. Then, called to sit as a juror on trial of the charge, he thinks that he would be uninfluenced by the opinion which he held while engaged in the conviction of the defendant in this “ trial bj -newspaper.” As evidence of prejudgment, the deliberate and repeated publication of opinions, with the juror’s approval, in a newspaper in part owned by him, is not less conclusive than the deliberate expression of opinion, reduced to writing and signed by the juror, which in Com. v. Cleary was held to disqualify.
The course pursued by the juror in this case unmistakably indicates p bias against the prisoner too strong to permit a fair and impartial judgment; an opinion which, as tersely expressed
The second, third and fourth assignments disregard the rules of this court'and the well established principles on which they are based. These principles are thus concisely stated by Mr. Justice Mitchell in Com. v. Werntz, 161 Pa. 591: “The assignments are the pleadings in this court, and are the only part of the case that remains of record here after the remittitur to the court below. They should therefore be self-explanatory
The assignments relating to passages of the charge are without merit. The charge was a lucid and concise presentation of the issue, as it stood, and stated with precision the ingre.dients of the offense with which the defendant was charged in the only count of the indictment on which a conviction was finally sought. Its language throughout was conspicuously fair toward the. defendant, and all the points on which his counsel asked the court to instruct the jury were affirmed. Surely nothing more than this could be required.
The designation of the count on which the defendant was convicted as the 6th, from the marginal figure opposite its com.mencement, was not material. This was the count on which the commonwealth asked a verdict, the count to which the defendant made defense, the count on which the court instructed the jury and on which the issue was submitted. It was sufficiently identified by the marginal number,, and its designation
As to the ninth and tenth assignments, it follows from what ,we have already said that the judgment was authorized by the verdict. It is also within the statutory limit. We hardly need add, what is apparently overlooked in these assignments, that the “judgment” and “sentence” are one and the same.
All the assignments except the first are overruled. The first assignment is sustained, the judgment is reversed, and a venire facias de novo is awarded.
Dissenting Opinion
dissenting.
The first assignment of error raises a question as to the qualification of one of the jurors.
In Allison v. Com’th, 99 Pa. 17. one of the rules deducible from the authorities was stated as follows : “ Where the juror entertains a fixed and deliberate opinion, no matter how formed, of the prisoner’s guilt he is incompetent; and his belief that he can try the prisoner impartially will not remove the disqualification.” Does the examination of the juror Nevin show that he had a fixed or deliberate opinion within the meaning of this rule ? If this question be considered with reference solely to his answers as to the nature, character and strength of his opinion, it is free from difficulty. Thus viewed, it is the ordinary case of a juror admitting that he has formed and expressed an opinion as to the defendant’s guilt, without stating how, or upon what evidence, he was led to form it, or that it is a fixed opinion, but asserting that he can and will try the case and render a verdict in accordance with the evidence adduced on the trial, uninfluenced by any former opinion that he may have had. In none of the numerous cases decided by the Supreme Court since Staup v. Com., 74 Pa. 458, has it been held to be error to overrule the challenge under the circumstances just stated. The law no longer presumes that a man, who has formed an opinion from what he has heard or read concerning a case, and has delivered it to others, cannot be perfectly impartial. In Staup v. Com., the more liberal doctrine was announced, that the opinion, which should exclude a juror, must be of a fixed and determined character, deliberately formed and still enter
But it is argued that the present case is exceptional, because of the juror’s interest as a part owner of a newspaper in which editorials had appeared concerning the defendant’s case. It is vehemently asserted in the printed brief, as it was in the oral argument, that the juror had so far prejudged the case that he could not be impartial; because he was face to face with the question not of the defendant’s guilt or innocence under the testimony, but of the defendant’s guilt or his own in persecuting and misrepresenting him; either the defendant must be found guilty, so far as the juror'was concerned, or the latter was responsible before the public for having persistently accused
In my opinion the defendant had a fair trial according to the forms of law. No error was committed either in the trial or the sentence of which the defendant can justly complain; therefore I would affirm the judgment.
Dissenting Opinion
dissenting:
Believing as I do that the opinion of the majority of our court in this case tends to establish a rule inconsistent with that deducible from the decisions of our Supreme Court, and not defensible on principle, I fully concur in the dissent.
The answers on voir dire of Mr. Nevin, which were the only evidence in the court below, regarding his competency as a juror, are here subjoined.
“ Q. I believe you are one of the proprietors of the Pitts-burg Leader? A. Yes sir. .Q. Have you personally formed or expressed any opinion with reference to the guilt or innocence of the defendant, W. H. House? A. I have. Q. Is that a settled and fixed opinion in its character? A. I hardly understand. Q. Well, is it an opinion of such a character that it would prevent you from fairly trying the case, if you were sworn as a juror? A. No sir. Q. You think it would not? A. No sir. Q. Are you one of the editorial writers of the Leader? A. No sir. Q. Have you been reading the editorials in the Leader this winter? A. Yes. Q. Have you approved of the sentiments expressed in those editorials with regard to this case? A. Yes sir, I-have. Q. Well, many of these editorials pronounced the defendant guilty, I believe, of the charge, from time to time? A. Yes sir.”
By the court: “Q. If sworn as a juror, could you try the
Not one of the editorials, referred to in the examination of the juror, were shown to him, or to the court. It appears from a question asked that they were written in the winter, five or six months before the trial, which began on July 13, 1896. The circumstances under which they were composed and published, who inspired them, and “the sentiments expressed,” beyond the fact that they declared the defendant guilty, are matters about which we. know nothing, the record being silent thereon.
I am unable to assent to the proposition that the owner of an interest in a newspaper which, many months before a case is called for trial, happens to contain editorials expressing belief in the defendant’s guilt is necessarily disqualified from sitting as a juror at the trial, although he may have approved the articles when they appeared. It is not his past but his present state of mind that determines his competency. What he has thought, said or assented to in the past may be inquired into for the purpose of discovering the condition of his mind when he is called, but no court is bound to hold, in the face of satisfactory evidence that he is then unbiased, that he is incompetent as a juror, save in the exceptional case referred to in the opinion of our Brother Rice.
The trial judge in the court below in the present case not only heard the juror’s answers, but had as well the opportunity which we have not, to scrutinize his manner, appearance and conduct. The things last mentioned were, of course, duly considered, as they always should be (Ortwein v. Commonwealth, 76 Pa. 426), and no doubt had their influence. We have no right, therefore, to say that the juror should have been rejected, unless we adopt the broad rule of exclusion above indicated, the only one that can be invoked to sustain the majority opinion.
If this is to be the rule, anyone called, hereafter, as a juror
The argument that because the juror might perhaps be liable civilly and criminally for what had been published in the newspaper, he therefore would necessarily be interested and prejudiced, applies with equal legal force to one who through letters to friends declares his belief in the guilt of another who is charged with a crime. Even an oral expression of like character may subject the utterer to a civil action. It will scarcely be contended, however, that such possible consequences, in the instances suggested would justify a juror’s exclusion.
Looking at the record before us, which is all we. can properly consider, I-am convinced that the case was well and iairly. tried, in every particular, and that the judgment should be affirmed.
Dissenting Opinion
dissenting:
I am compelled to dissent from the judgment of the court in this case. The challenge of the juror, Joseph Nevin, was properly overruled by the learned trial judge, and I am not inclined to depart from the rule adopted by the Supreme Court in Commonwealth v. Crossmire, 156 Pa. 304, and cases there cited. The judgment of the court below as to the qualifier tions of this juror in whose presence he appeared and by whom his manner and conduct as well as his language were scrutinized,is entitled to great weight, and should not be questioned here under the facts of this case as fully set forth in the dissenting opinion of the president judge of this court, and of Judge Wickham, in which opinions I concur.