Hartzell v. Commonwealth
40 Pa. 462
Pa.
1861
Check Treatment

The opinion of the court was delivered,

by Thompson, J.

The first assignment of error is ruled against the prisoner by the case of Warren v. The Commonwealth, 1 Wright 45. That case determined that the allowance of peremptory challenges to the Commonwealth did not impinge upon the constitutional provision, “ that trial by jury shall be as heretofore, and the right thereof remain inviolate.” It has been well argued, on part of the Commonwealth, that if in consequence of the exercise of this right the panel be exhausted, it does not destroy the right itself, and the right existing, its incidents are legal, one of which is the calling and impannelling talesmen. This is a legitimate sequence of the first proposition, and needs no further illustration.

But it was urged that the Commonwealth must exercise her right of challenge in the order of calling the jury; that is to say, if she waives her challenges, or any of them, to the first four called, she cannot afterwards challenge. This is not the meaning of the law, nor the practice under it. This rule is very right in civil cases and in misdemeanors, where the jurors are all called into the box before the challenges begin. Then the last man called can be as readily challenged as the first. Not so in capital cases, where the jurors are called, tried, and sworn separately, or challenged, as the case may be. There the right of challenge is to the juror on the stand, and to none others. The effect of the rule claimed would be either to require all the jurors to be called into the box, as in civil cases, before challenging, or limiting the Commonwealth to the first four called. We do not agree to either alternative. The ancient mode of impannelling juries in capital cases cannot be dispensed with without abrogating the right of triers upon the several members of the jury themselves, a necessary procedure to ascertain whether the juror is or is not indifferent in feeling between the prisoner and the Commonwealth. This is not to be thought of. There is no difficulty in the matter, however. The Commonwealth is entitled to four challenges out of all the jurors that may be called. That *467is evidently tbe meaning of the Act of 1860, and that is just what she would have if tbe jury were all in tbe box at one time, and what she has in misdemeanors. The Commonwealth has the right to challenge the number allowed by the act at any time, we think, before the panel is full, and passing by individual jurors, and permitting them to be challenged by the prisoner, or sworn, is no waiver of her right. This necessarily results from the form to be pursued in impannelling jurors in capital cases, and is not controlled by the Act of 1860. The court were right in conducting the challenges, and as we see no error in the record,

The judgment is affirmed.