O'Mara v. Commonwealth

• Decision Date: 11 May 1874
• Citation: 75 Pa. 424
• Parties: O'Mara and Irving <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 424

75 Pa. 424

O'Mara and Irving versus The Commonwealth.

Supreme Court of Pennsylvania.

March 12, 1874.

May 11, 1874.

March 12th 1874.

Before AGNEW, C. J., SHARSWOOD, MERCUR and GORDON, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Oyer and Terminer of Susquehanna county: No. 291, to January Term 1874.

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J. B. McCollum and W. H. Jessup (with whom were A. H. McCollum, H. C. Jessup and E. U. Smith), for plaintiffs in error.

R. R. Little (with whom were ____ Blakeslee, W. C. Crossmann and I. E. Carmalt, District Attorney), for Commonwealth, the defendant in error.

The opinion of the court was delivered, May 11th 1874, by AGNEW, C. J.

It is unnecessary to discuss in this case more than a few of the twelve assignments of error. Of the three relating to the challenges of the jurors, that of H. N. Tingley for cause, raises the only serious question, and this we think is disposed of, against the prisoners, by the principles ruled in the case of Staup v. The Commonwealth, at the last term in Pittsburgh (24 P. F. Smith 458). It was there said that the opinion which should exclude a juror, must be one of a fixed and determined character, deliberately formed and still entertained; one that in an undue measure shuts out a different belief. This it was said is a pre-judgment, and constitutes a bias too strong to make the juror a fair and impartial judge. It was held, therefore, that when the opinion of the juror has been formed upon the evidence given in a former trial, or where his opinion of the prisoner's guilt has become a fixed belief, it would be wrong to receive him. On the other hand, when his opinions or impressions are founded upon rumor or reports, or even newspaper statements, which the juror feels conscious he can dismiss; when he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, and freed from the influence of such opinions or impressions, he ought not to be excluded. The reasons, indeed absolute necessity, for settling upon this middle ground in the selection of jurors, were stated at large in that case, and the distinction was fully set forth between a pre-judgment, and also an opinion formed upon the evidence, which necessarily exclude an impartial consideration of a cause, and those imperfect opinions and floating impressions derived from sources known to be unauthentic, and to be liable to be removed by the evidence in the cause itself. Taking all that the juror Hugh N. Tingley said in his examination, his opinion fell into the latter class. It was not a prejudgment, or an opinion made up from evidence known to be authentic and such as would be given in the trial; but it was one founded only on hearsay, and ready to give way to the truth as it would appear in the evidence. He said he had read accounts of this matter in the papers. Heard it talked about some. Formed an opinion he thought. That opinion would follow him into the jury-box, if he had no evidence against it. Would influence him if he had no other evidence. The remainder of the examination in chief is but a repetition of the same thought. In his cross-examination, he said he had not formed an opinion from what he had heard, that would influence him, unless the evidence sustained it. And in reply to a question of the judge, whether he could enter the jury-box and decide the guilt or innocense of the prisoners upon the evidence, and that alone, uninfluenced by any impression or opinion he had formed; he said he could, and that the opinion would not influence or bias his judgment. This case presents a test of the principles laid down in Staup v. The Commonwealth; and we must either recede, and go back to the practice of an age when ignorance of passing events constituted a characteristic of the times, and exclude every juror who has formed any opinion, even the slightest; or we must stand abreast with the present age, when every remarkable event of today is known all over the country to-morrow, and exclude those only whose opinions are so fixed as to be prejudgments, or have been formed upon the known evidence in the cause. It is needless to say the world moves and carries us with it, and if we lag behind we must commit the trial of the most important causes in life to those, so ignorant, their dark minds have never been smitten by the rays of intelligence. It may be well to remark while on this subject, the proper practice is to examine jurors upon their voir dire as to the opinions they have formed. The tendency is to exaggerate their opinions, to escape serving in capital cases.

The fourth assignment of error was pressed strongly by the counsel, but we think in a misapprehension of the true tendency of the offer, which was to show what quantity of blood would probably flow from the body of a well developed and plethoric girl of thirty years of age, who had been killed suddenly by numerous incised and lacerated wounds. The purpose was not to permit the witness, as an expert, to give an opinion upon a hypothetical case based upon the supposed truth of his previous statement; but it was to state a fact known to him as an expert, which bore upon other facts proved. On the morning of the 27th of September 1873, the body of Mary O'Mara, the deceased, was found beside the railroad, near to the Montrose depot, several miles away from her home. No blood was found near the body or on the iron rails. But at her home, where she was known to be on the night before, much blood was found, and it was traced along the road toward the depot. The quantity of blood likely to flow from the body of a girl such as described in the offer, therefore, had some bearing upon the place where the death actually happened; and whether it was likely it occurred near the depot, and by being run over by a train of cars.

The seventh assignment alleges error in admitting the testimony of Thomas Killea, of what Daniel O'Mara's wife said to him at the Montrose depot, to wit: "I saw Dan O'Mara's wife when she came; she said to Daniel if she had been at home this would not have happened; Dan made no reply to this." It is objected that the wife's declarations ought not to be heard against her husband; and also that the declaration to him and his want of reply, tends to an unfavorable inference against him. But it was not an ex parte declaration of the wife. It was a statement to O'Mara himself, which being made to him, whether by his wife or another, is to be judged of by his own conduct and not by her declaration only. It was a fact or occurrence to which he himself was a party, and the declaration was a part of the res gestæ, which is evidence only because he himself was a partaker in it. If in fact his wife had been at home, it is but reasonable to think he would have said so in reply.

The tenth, eleventh and twelfth errors were not properly assigned, but in favorem vitæ we have permitted amendment. The tenth and eleventh raise the question whether a presumption in law of murder arises from an unlawful homicide, or whether it is one solely of fact to be determined by a jury. The answer of the court to the first point was that if the jury found an unlawful killing, it is presumed to be murder of some degree, unless the contrary appears in the evidence; though this presumption rises no higher than of murder in the second degree, until it is shown by the Commonwealth to be murder in the first degree. The second point called upon the court expressly to charge that the presumption was one of fact only. This the court declined. In these rulings the court followed Commonwealth v. Drum, 8 P. F. Smith 18, stating the common law of the crime of murder.

The crime of murder was not altered by the Act of 22d of April 1794, since incorporated into the amended criminal code. In White v. The Commonwealth, 6 Binney 179, C. J. Tilghman said, "Now this act does not define the crime of murder, but refers to it as a known offence; nor, so far as concerns murder in the first degree, does it alter the punishment, which always was death. All that it does is to define the different kinds of murder which shall be ranked in different classes,...