Alexander v. The Commonwealth
| Decision Date | 03 March 1884 |
| Citation | 105 Pa. 1 |
| Parties | Alexander <I>versus</I> The Commonwealth. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.
ERROR to the Court of Oyer and Terminer of Northampton county: Of January Term 1884, No. 11.
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H. J. Reeder, (with him H. M. Hagerman and C. F. Walter), for the plaintiff in error.—The court erred in permitting the jury to separate, and go where they pleased without any supervision, during the trial on the plea in abatement. While the prisoner was not directly in jeopardy, yet if the verdict were in his favor he could not be tried upon the indictment. It was of vital importance that he should be tried by his right name, or his life may be twice put in jeopardy for the same offence, and the policy of the law that the jury shall be kept secluded applies with equal force to this case as to the trial upon the indictment itself. But, however this may be, it was clear error to permit the jury to separate after the conclusion of the testimony on the main issue, and before verdict. The danger to the prisoner was aggravated by their listening to an inflammatory sermon exhorting juries to greater severity in the conviction of criminals accused of murder, and depicting in vivid language the terrible results of failure of justice in such cases. It is impossible to say that the jurors were not thereby improperly influenced to convict. That they might have been so influenced is sufficient reason for reversal of the judgment. If such language had been used to the five jurors in a street conversation, at that time, is there any doubt that the court would have discharged the jury, or have set aside the verdict? The solemnity of the actual circumstances but adds to the force of our argument. It was, moreover, matter of common notoriety that but recently in the same county, a man accused of murder had been lynched by hanging by mob violence. The rule that juries in criminal cases shall be kept together in seclusion is well established in this state. Peiffer v. Commonwealth, 3 Harris, 468. The refusal of the court below to grant a new trial for ordinary causes (as e. g., that the verdict is against the weight of the evidence) is not subject to review, but we contend that when the reason assigned is misconduct of the jury, the case is, from necessity, an exception. Otherwise, no matter how flagrant be such misconduct, if the court below misconstrues the law, the defendant has no redress. In such case the action of the court is an abuse of discretion, which is always reviewable. Whelchell v. State, 23 Ind., 89; Jack v. State, 26 Texas, 1. The Acts of March 31, 1860, February 15, 1870, and especially the Act of May 19, 1874, authorizing a defendant convicted of murder, after exceptions to "any decision of the court" to remove the "record and all proceedings" to the Supreme Court for review, afford ample warrant in such case.
Having shown the brutal and violent character of the deceased by evidence of his general reputation, our offer to show a series of specific acts of violence by the deceased, known to the defendant, should have been admitted. Wharton on Homicide, § 507, citing Commonwealth v. Seibert; Commonwealth v. Richmond, 6 W. N. C., 431, and note. Such proof is far stronger than mere general reputation. No case has decided that a series of specific acts may not be shown, and in the authorities cited where evidence of specific acts was excluded, it was not shown that the defendant had knowledge of them. We insist upon all the errors assigned, including that to the action of the court in discharging eight jurors after they had been sworn, and empanneling a jury de novo. The defendant was put in jeopardy the moment the first juror was sworn, and could not be again put in jeopardy. Wharton Cr. Practice and Pleading §§ 791, 492, 508. No malice or motive was shown for the killing, and the ingredients of murder were not proved.
R. E. James (H. J. Steele with him), for the defendant in error.
The defendant pleaded in abatement that he was baptized by the name of Sabato D'Allessandro, and by that name always since has been called or known. It was unnecessary to make the averment of his baptism, but having made it, the burden was on him to sustain it by proper evidence. He was permitted to give evidence that he had borne and used the name as if he had not alleged it was his baptismal name. The jury were instructed that it was incumbent upon the Commonwealth to satisfy them beyond a reasonable doubt that the real name of the defendant is that stated in the indictment; otherwise to render a verdict in his favor. The question was submitted whether in this country the defendant had assumed and assented to the name Sabato Alexander, and there was ample testimony in the affirmative. One witness directly asked him if that was his name, and he answered that it was. Complaint is made that the Court remarked in the charge, "It appears in evidence that the Italian for the name Alexander is Allessandro or D'Allessandro," and that there is no such testimony. But although objection was made when the Court asked the interpreter. "What is the Italian for Alexander?" subsequently the interpreter was called and sworn, and without objection to the form of the oath or to his testimony, he said that the Italian word D'Allessandro is the same as the English word Alexander. The second and third assignments of error are not sustained — the first was not pressed.
A motion was made in arrest of judgment upon the verdict in the issue on the plea in abatement, upon the alleged ground that the jury were permitted to separate during the adjournment of the court. This does not appear of record — the affidavit of Mr. Walter is not a part of the record — and the refusal of the motion therefore is not subject to review. But we remark in passing that in the trial of that issue neither the life nor liberty of the defendant was in peril; the trial was to determine whether his true name was set forth in the indictment or in his plea, and we think it was entirely discretionary with the court below whether under the circumstances of the case there was good cause for keeping the jury secluded.
After the names of forty-nine jurors had been drawn from the box which had contained sixty, and eight jurors had been separately sworn, it appeared that eleven of the paper pellets had been clandestinely removed; whereupon the Court directed the clerk to prepare eleven pellets in place of those which had been removed, and again put all the pellets in the box; and further ordered that the drawing of the jury be commenced de novo. The defendant complains that the tendency of that order was to put him twice in jeopardy, and that the Court had no power to make it. He was not in jeopardy at the time of making the order. The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is impanneled and sworn; he is not in jeopardy before. Up to that point the Court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full number are qualified to hearken unto the evidence and make deliverance. Eleven jurors, or eight, can give no verdict. McFadden v. Com., ...
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