Allison v. Commonwealth

• Decision Date: 14 November 1881
• Citation: 99 Pa. 17
• Parties: Allison <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

99 Pa. 17

Allison versus Commonwealth.

Supreme Court of Pennsylvania.

October 26 and 27, 1881.

November 14, 1881.

October 26th and 27th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, STERRETT and GREEN, JJ. TRUNKEY, J., absent

ERROR to the Court of Oyer and Terminer of Indiana county: Of October and November Term 1881, No. 167.

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Silas M. Clark and J. C. Ruffner (H. K. Sloan with them), for the plaintiff in error.—Our challenges for cause were improperly overruled. A juror, who has simply read newspaper statements, or heard unofficial rumors, from which he has formed only an impression, which he swears will not affect his impartiality, is competent. But if he has formed a decided opinion from authentic sources, such as having been a grand juror or having read the testimony taken before the coroner's jury, or upon a previous trial, then he is not competent, even though he says he thinks he can give an impartial verdict on the evidence. The law on this point, as settled by recent authorities in Pennsylvania, may be summarized as follows:

1. If the proposed juror has a fixed opinion, derived from any source, he is incompetent.

2. If he has a mere opinion, derived from unauthentic sources, which, he says, will not affect his judgment, he is competent.

3. If he has derived from authentic sources a strong opinion, based on the same, or similar, testimony as will be given on the trial, he is not competent.

4. After a juror has testified fully to facts, which disqualify him under the above definition, he cannot, under a leading examination of counsel, swear himself competent again: Staup v. Commonwealth, 24 P. F. Smith 458; O'Mara and Irwin v. Commonwealth, 20 P. F. Smith 424; Ortwein v. Commonwealth, 26 P. F. Smith, 415; Curley v. Commonwealth, 3 Norris 151.

In this case the objectionable jurors had formed strong opinions, based on reading the full reports of testimony taken at the coroner's inquest, which was, in all material respects, substantially the same as that produced on the trial.

The juror, Joseph Atkinson (who was sworn and sat in the case), testified: "I thought by the testimony that I read that it was rather dark on the prisoner's side. Q. Did you come to a conclusion in your mind without stating what that conclusion was? A. Well, yes. Q. Would it require evidence to remove the opinion which you have on the subject? A. Certainly it would. Q. As a juror you would start out with the opinion that you entertained, and unless the evidence disproved it you would retain that opinion? A. Yes, sir. Q. Your judgment will be somewhat affected by the opinion that you have entertained? A. Until contradictory testimony was offered. Q. Would this impression in the slightest degree influence your judgment as a juror when you heard the evidence in the case? A. Well, if the same evidence was given here that was given at the coroner's I do not know what effect that would have; it would take pretty strong evidence, and I could not say. Q. Is your opinion a fixed one, or is it a loose and floating opinion? A. Yes, sir [fixed], until further evidence. Q. Could you divest your mind of all previous impression or opinion and give the prisoner a fair and impartial trial according to the law and the evidence? A. I believe I could, sir." Challenge for cause overruled.

We submit that no man who has formed such an opinion as is here indicated, based upon sworn testimony taken in a legal proceeding before a judicial officer, is competent, psychologically, to say that he can divest himself at will of its influence, so that he can enter upon the investigation of the prisoner's guilt or innocence, and form a new and impartial judgment, unaffected by his previous state of mind, and based solely upon the evidence to be given on the trial. In Ortwein's case, AGNEW, C. J., speaking of the weight to be attached to coroner's inquests, as affecting a public opinion, in which a juror probably participates, remarks: "We know the looseness with which these investigations are generally conducted, especially since the law permitting them to be had before justices of the peace in lieu of the coroner." But this remark does not apply to this case, where the inquest was held by the coroner in person and the jury was composed of prominent citizens.

[SHARSWOOD, C. J. Were the prisoner's peremptory challenges exhausted when the court overruled his challenge for cause to the juror Atkinson?]

No, but we could not afford to exhaust our peremptory challenges at that stage of the case, in cases where we had a right to challenge for cause. If we had such right, the court was bound to grant it, and refusal was error. A prisoner's right to twenty peremptory challenges cannot be so abridged.

The assignments of error relating to evidence of dying declarations should be sustained: Kilpatrick v. Commonwealth, 7 Casey 215; Kehoe v. Commonwealth, 4 Norris 127; Del. & Hudson Canal Co. v. Barnes, 7 Casey 193; Albert v. Miller, 7 W. N. C. 477; Railroad Co. v. Decker, 1 Norris 119; Zell v. Commonwealth, 13 Norris 258; Rex v. Reason and Tranter, 1 Strange 499; Meyers v. Commonwealth, 2 Norris 131 and 132.

Harry White (with him M. C. Watson, district-attorney, and Joseph M. Thompson), for the defendant in error.—The testimony of each juror who was objected to, considered in its entirely, will show that the overruling of the prisoner's challenges for cause fell within the principles established in Ortwein's case and the other decisions of this court, cited by plaintiff in error. Moreover the prisoner cannot complain of being forced to peremptory challenges, if his peremptory challenges were unexhausted when the panel was filled. Krebs v. State, 8 Tex. App. 1. The record shows but eighteen peremptory challenges altogether.

It being clear from the testimony that the deceased at the time of making his dying declarations was convinced that death was imminent, the mere inquiring about the effect of the will "if he should get well," does not render the declarations inadmissible: Rex v. Bonner, 6 C. & P. 386; 1 East, P. C. 385; Kilpatrick v. Commonwealth, 7 Casey 215; R. v. Bernadotti, 11 Cox C. C. 316; R. v. Craven, Lewis's C. C. 77, 78.

"If a dying declaration was reduced to writing when made, it is not competent for the prosecution to prove it by parol without accounting for the production of the writing; but if the deceased made the declaration on several occasions, the fact that it was reduced to writing on one occasion, does not preclude parol evidence of the unwritten declaration on the other occasions:" Krebs v. State, 8 Texas App. 1; Woodcock's Case, 2 Leach 566; Rex v. Tranter, 1 Strange 500; State v. Sullivan, 51 Iowa 142; Wharton's Criminal Evidence, 295.

Mr. Justice PAXSON delivered the opinion of the court, November 14th 1881.

The first six assignments allege that the court below erred in overruling the prisoner's challenges for cause to the jurors who are respectively named in said assignments.

As all of these challenges rest upon the same principle, it will be sufficient to discuss one of them. I have selected that of the juror John Phillips, which is believed to embody all of the objections made to either of the others.

The juror had stated on his voir dire that he had formed an opinion; that he believed the prisoner guilty. The prisoner's counsel then asked him this question: "That was your deliberate conviction from what you read?" Answer. Yes, sir, that was from what I read." The juror then proceeded to say that it would require evidence to remove that conviction from his mind, and that to this extent his judgment as a juror would be affected.

Prima facie this would disqualify the juror. A "deliberate conviction" is the equivalent of a "fixed opinion," which, according to the modern authorities, is the test: Staup v. Commonwealth, 24 P. F. Smith 458; O'Mara v. Commonwealth, 25 Id. 424; Ortwein v. Commonwealth, 26 Id. 414. It is to be observed, however, that the foregoing statement of the juror was in response to leading questions. The words were suggested by the prisoner's counsel. It is true he adopted them, but it is only fair to the juror and to the court below to turn to the cross-examination to see what he really meant when he answered the questions referred to in the affirmative. We there find the following: "Q. Have you any deliberate, fixed opinion about this case? A. Nothing more than from what I read. Q. Have you anything more than an impression? A. No, sir. Q. You have no such impression as would not yield to the evidence in the case? A. No, Sir. Q. Could you then act as an impartial juror between the Commonwealth and the defendant? A. It would be owing to the...