100 Pa. 317 | Pa. | 1882
delivered the opinion of the court, October 2d 1882.
For reasons given at length in the opinion of the Chief Justice, 3 Outerbridge 410, the plaintiffs in error failed to obtain bills of exception to support the numerous assignments of error on which they intended to rely for a reversal of the judgment in this case. In the absence of the exceptions referred to in their application for the special writ under the Statute of Westminster, there is nothing in the record before us, on which to base any of the specifications except, perhaps the first. This fact was virtually conceded by the learned counsel, and hence their oral argument was directed solely to the question involved in the first specification, viz: Whether the Commonwealth, during the progress of empaneling the jury, had a right to stand aside jurors without assigning any cause of challenge? It is contended, however, on the part of the Commonwealth, that the record does not properly raise even that question; that the ruling of the court permitting the district attorney to stand aside Levi King and other jurors was not excepted to, nor was any bill of exception thereto ever sealed; and that this omission has not been supplied by the alleged amendment of the record allowed several months thereafter by one of the judges who was not present during the trial.
At common law bills of exception in criminal cases were not allowed, nor did the evidence, rulings and charge of the court form any part of the record. The right of the defendant to take exceptions in such cases and bring them here for review depends entirely on the Acts of Assembly referred to in the opinion above cited. The extent of the right thus conferred, the time and manner in which it should be exercised, etc., are there clearly pointed out. If an exception to the ruling of the eourt is desired, the judge presiding at the trial should be requested to note it, and then, or within such reasonable time as the rules of court may prescribe, seal the bill in due form. It is the personal right, as well as the duty of the trial judge, to seal a bill to all exceptions properly taken to his rulings during the course of the tidal. If he neglects or refuses to do so, the party aggrieved is not without remedy. When objections are overruled and no exception is taken, the presumption is that the
It cannot be doubted that, upon satisfactory proof of mistake or omission, the proper court may so amend its record as to make it conform to the facts ; but many things occur, during the progress of a trial, that form no part of the record, unless they are properly made so by a bill of exceptions. The object of the record is to show, in a clear and concise form, that every thing essential to a legal and orderly trial has been done, without setting forth in detail the manner in which essential matters were performed. It should appear, for example, that the requisite number of jurors was empaneled and sworn, but it is not necessary that each successive step leading thereto should be .recorded. If a question arises in regard to a challenge for cause, or as to the right to stand aside a juror, and the like, the ruling of the court maybe brought upon the record by an appropriate bill of exceptions. In my opinion that would have been the proper course in the present case, instead of attempting to raise the question by adding to the record, by way of amendment, that which in strictness forms no part thereof. But, without resting our judgment on technical grounds, in regard to which there may possibly be some room for doubt, and assuming that the question involved in the first assignment is fairly presented by the record, we are of opinion that there was no error in the ruling of the court.
The practice of “ standing aside ” jurors, as it is called, had its origin in the construction given by the courts to the statute 33 Edward I., enacted in 1305 ; and, like many other customs, it descended to us from that country whence most of our laws and customs were derived : Warren v. Commonwealth, 1 Wright 45. In that case Mr. Justice Thompson characterizes the practice as “ ancient and uniform,” and cites 5 Bac. Abr. 365, and 2 Ib. 764, Avherein the construction given to the statute is thus spoken of : “ It hath also been agreed, and is now the established practice of the courts, that- if the king challenge a juror before the panel is perused, he need not show any cause of his challenge till the whole panel be gone through and it appear that .there will not be a full jury without the persons so challenged :
While it is virtually conceded that in the higher grades of felony, at least, the practice has been so long continued and uniformly sanctioned, that it has acquired the force of positive law, it is still contended that it does not apply in other grades of crime, especially in misdemeanors; but no such distinction as that can be found in any of the text books or adjudicated cases. On the contrary, the authorities appear to hold that the practice is the same • both in trials for misdemeanor and for capital felonies: 4 Black. 353, note; 3 Harg. St. Tr. 579 ; 2 Hawk. P. C. 569.
It is also contended that, inasmuch as the Commonwealth is. now entitled, under our statute, to peremptory challenges, the reason for permitting the district attorney to stand aside jurors has ceased, and hence the practice itself should be discontinued. In our law authorizing peremptory challenges there is nothing to indicate that the legislature intended any modification of the practice in question, and therefore we have no right to interfere with it. A similar position was assumed in Warren v. Commonwealth, supra, and it was there held that the rule of practice was not changed by the allowance of peremptory challenges. Nor is there any reason why it should be. If the practice, which is undoubtedly older than the Commonwealth itself, is still in force, and has never been restricted to any particular class of criminal cases, it is not for us to say whether it is a good or bad practice, fair or unfair to any particular class of defendants. The fact that it has so long stood the test of experience is certainly an argument in its favor.
The right claimed by the Commonwealth should always be exercised under the supervision of the court, and when that is • done it is difficult to understand how the interests of the defendant can be unduly prejudiced. He cannot claim the right of selecting a jury from the panel. In the exercise of his right of challenge he may exclude from the jury a certain number,
If the due administration of justice requires any change or modification of the practice under consideration, it must be effected by legislative action. It is not the province of the courts to make the change. The only question we have any right to consider is whether in the construction which was undoubtedly given to the statute 33 Edward I., and the practice which was thereby established, all classes of criminal cases, misdemeanors as well as felonies were alike comprehended. We are satisfied they were, and that the practice continues unchanged.
A careful examination of the record discloses no error that would justify a reversal of the judment.
The judgment of the court of Quarter Sessions of Philadelphia county is therefore affirmed. And it is further ordered that the plaintiffs in error be remanded to the custody of the Warden of the Eastern Penitentiary, there to be confined, according to law and the sentence of said court, for the residue of the' term for which they were respectively sentenced, and which had not expired when they were admitted to bail under the order of this court: and that the record be remitted to the said court of Quarter Sessions with instructions to carry this order into effect.
