137 Pa. 255 | Pa. | 1890
Opinion,
The act of June 23, 1885, P. L. 138, consists of a single section which simply amends the 140th section of the act of April 14, 1834, P. L. 366. That section of the act of 1834 prescribes the method of drawing the names of jurors from the box, and the manner in which challenges shall be made. The concluding sentence of the section directs that when, in the manner prescribed, twelve jurors have been selected and approved, and sworn or affirmed, they shall be the jury to try the cause. The 141st section immediately proceeds 'to prescribe the oath which must be administered to the jurors in the following form: “ You, and each of you, do (swear or affirm) that you will well and truly try the issue joined between C. D., plaintiff, and E. F., defendant, and a true verdict give according to the evidence, unless dismissed by the court or the cause be withdrawn by the parties.” It will be seen at once that this is not an oath which can be administered to jurors in criminal cases. It is intended for juries in actions between private parties in suits which are within their control, in which the parties are described as plaintiff and defendant and the cause is subject to dismissal by the court. In the oath administered in criminal prosecutions, the jury is sworn to well and truly try the issue joined between the commonwealth of Pennsylvania and the prisoner at the bar, and a true deliverance make, and the clause in regard to the dismissal of the jury by the court, or the cause being withdrawn by the parties, is entirely omitted. The provisions of the 142d section are applicable only in civil causes. The 148th section especially provides that in criminal cases the courts shall have a like power to that given by the 146th and 147th sections when a challenge to the
The second assignment is equally untenable. The act of May 23, 1887, P. L. 158, renders either a wife or husband competent to testify “ in any criminal proceeding against either for bodily injury or violence attempted, done, or threatened upon the other.” While it is true that the offence with which the prisoners were charged was conspiracy, it was a conspiracy to have the wife of one of them declared insane, and to have her confined in an insane asylúm. To carry out such a conspiracy, the arrest and imprisonment of the body of the wife was a contemplated and a necessary ingredient, and, as a matter of fact, personal violence was used in effecting the designs of the defendants. The language of the act is very broad, and includes “ any criminal proceeding” for bodily injury or violence, “ attempted, done, or threatened.” In the present case, bodily violence was attempted, was done, and was threatened bj*- the defendants, who, it is true, invoked the forms of a legal proceeding to aid them, but the violent character of their acts was rather aggravated than mitigated by that consideration. The words of the act establishing the competency of the wife or husband are not limited to prosecutions for the immediate act of violence, but embrace “ any criminal proceeding ” for such acts. A conspiracy to do an act of violence upon the body of another is a crime, and an indictment therefor is a criminal proceeding;
The third assignment is without merit in any view of the case. It is not possible that a defendant in a criminal case, by filing a written admission of a fact, in a cautious and guarded way, which is consistent with the theory of a motive to do the criminal act in question, can shut out all the commonwealth’s testimony proving, or tending to prove the existence of the motive, with all the attending circumstances. The question is for the jury, and they have a right to know what the real facts are, as well upon the question of motive as upon the principal act of crime itself.
The fourth, fifth, sixth, eighth, and ninth specifications complain of the court in admitting evidence of the sanity of the wife, and in answering defendant’s fourth and fifth points relating to the effect of the proceedings on the commission. The theory of these assignments of error is that, because a commission had found the plaintiff insane, she was bound-by the finding unless she could prove a fraudulent' collusion between the defendants and the persons composing the commission. The court gave to the defendants the full benefit of the finding, and charged the jury that if the defendants honestly believed that the plaintiff was insane, and applied for the commission in good faith and for her benefit, they could not be convicted, even if the plaintiff was really sane. The court further said that the legal proceeding was regular in form, and in exact conformity with the law, and that no person can be convicted of doing an unlawful thing who merely does that which the law permits him to do. And the court further charged the jury that the question for them was whether the defendants did conspire together and act in concert, to dishonestly and fraudulently procure the confinement of Mrs. Spink in the asylum, and whether the information made to the judge on which the commission issued to inquire into her mental condition was merely an instrument to carry into effect the
As to the admission of testimony to prove the wife’s sanity there can be no doubt of its propriety. Her sanity was a fact in issue, and it was necessarily to be considered in the determination of the case. For that purpose, it was simply indispensable to receive testimony on that subject. There was a great mass of testimony in the case in support of the plaintiff’s allegation of her sanity, and quite ample testimony in support of the charge of bad faith, and of the dishonest and unlawful conspiracy of the defendants to make use of the process of the law for an unlawful purpose. In the face of all this, and of the distinct finding of the jury of the fact of the unlawful conspiracy and illegal use of process, and of the further fact that no trial was had before the commission, and no witnesses examined, and that no opportunity was given to the plaintiff to be heard by counsel and by witnesses, it cannot possibly be said that she was absolutely bound by the finding of the commission. To say that it must have such effect, unless she first proves a fraudulent collusion between the defendants and the members of the commission, would be simply a denial of justice, and upon entirely untenable grounds; because the commissioners personally may have acted in good faith, and yet may have been imposed upon by an’ artful scheme to come upon the plaintiff at such a time, and in such aggravating circumstances, as to arouse in her a storm of indignation, and the most violent and exciting resistance to their proceedings. The actual facts in proof quite strongly tend to support this theory. Or, the
The seventh, tenth, and eleventh assignments are so manifestly without merit that they are dismissed without discussion.
The judgment of the Court of Quarter Sessions is affirmed, and it is ordered that the record be remitted to said court for the purpose of carrying the sentence into execution.