Kittanning Insurance v. Adams

110 Pa. 553 | Pa. | 1885

Mr. Justice Creen

delivered the opinion of the court, November 9th, 1885.

In the case of Brown v. Commonwealth, 23 P. F. S., 321, we held that the array of jurors should have been quashed because the jury wheel was sealed with but one seal. The law (Act of 14th April, 1834, § 90, Purd. Dig., 959 pi. 13,) provides that, “as soon as the selection of jurors and the depositing of their names in the wheel as aforesaid shall be completed, the sheriff shall cause the same to be locked and secured by sealing-wax and thereon the said sheriff and commissioners shall impress distinctly their respective seals.” In delivering the opinion of the court Read, C. J., said, “It is clear that only one seal was used, and that it (the jury wheel), was not sealed With the respective seals of the two jury commissioners and sheriff, making three seals. Of course this was error and the array so challenged should have been set aside and the indictment for the murder of Kraemer should have been quashed.” On the hearing of the motion to quash,it was found that after the wheel was filled it was locked and placed in a box which was also locked with a padlock, tape drawn across the lid of the box, tied and sealed; there was but one seal put on the box, that was the private seal of one of the jury commissioners; both jury commissioners were present when the box was locked and sealed; the sheriff was not present; the key was obtained from him and returned to him ; the box had always been kept in that way, and had always been found by the jury commissioners intact and where they left it. There was no proof that the box or wheel had been openéd or in any manner tampered with. Yet we held that the absence of the proper seals directed by the law was cause for quashing the arrajr. In the present case it appears that another provision of the'same law, quite as important and quite as imperative in its terms, was continuously violated down to and including the drawing of this jury. It is the provision in regard to the custody of the key of the jury wheel. The 83d section of the same Act of 1834, Purd. Dig., 959 pl. 10, provides that, “ Every of the said wheels shall be provided with a sufficient lock and key; the wheel shall remain and be in the custody of the commissioners of the respective county, and the key thereof in the custody of the sheriff of the same county.” The Act of 1867, Purd. Dig., 958 pl. 2, which substitutes jury commissioners for county commissioners, repeats the injunction as to the custody of the key. It can readily bo understood that the separation of the custody of the key of the wheel from the custody of the wheel itself, is an additional precaution against tampering with the wheel, and it is a wise provision. If the jury commissioners have the exclusive custody of the wheel, and the sheriff has the exclusive custody of the key,there can be no tampering with the wheel except by collusion with both the commissioners and the sheriff, whereas if the commissioners or the sheriff have the custody of both, only one act of collusion will be necessary. It is sufficient to know that the law positively prohibits such united custody. But it does more. The 84th section of the Act of 1834, Purd. Dig., 959, pl. 11, provides, “that if the commissioners neglect or refuse to take charge of such wheel or wheels or if the sheriff neglect or refuse to take charge of the key belonging to such wheel or wheels, the sheriff or commissioners so offending, and every of them shall on conviction thereof in the court of quarter sessions of the respective county forfeit and pay a fine not less than one hundred dollars, nor more than one thousand dollars, at the discretion of the court.” It will be seen that either the neglect or refusal of the sheriff to take and keep the custody of the key of the jury wheel, is a crime punishable with a heavy line. If now we say that it makes no difference whether the sheriff performs this duty or not unless it is proved affirmatively that the wheel has been invaded and the ballots changed, we practically condone the offence, and certaiuly disregard the positive provisions of the law. We can not do this. The sheriff in this case testified that he had never had the key of the jury wheel in his possession, that he had once called the attention of the jury commissioners to the subject, and told them the custody of the key belonged to him, but they said it did not and he never again demanded it. In these circumstances we feel obliged to say that the motion to quash the array of jurors ought to have prevailed and that it was error in the learned court below to overrule it. We reverse the judgment on the first assignment and for the reason stated. We do not sustain any of the other assignments. The question involved was one of fraud in fact and Mr. Gilpin’s participation in it or knowledge of it, and we do not think the latitude of testimony allowed in such cases has been transcended. We do not discuss the evidence because the case must be tried again, and we do not think it proper to give an intimation of opinion upon it further than to say that we think there was evidence enough to carry the case to the jury. We regard the charge of the learned court below as quite correct upon all this branch of the case.

Judgment reversed and new venire awarded.