Brown v. Commonwealth
| Citation | 76 Pa. 319 |
| Parties | Brown <I>versus</I> Commonwealth. |
| Decision Date | 02 July 1874 |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.
Error to the Criminal Court of Schuylkill county: No. 226, to January Term 1874.
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G. R. Kaercher and J. W. Ryan (with whom was F. G. Farquhar), for plaintiff in error.
J. B. Reilly, District Attorney, and L. Bartholomew, for Commonwealth.
On the night of the 25th of February 1872, Daniel S. Kraemer, a farmer of reputed wealth, aged about sixty years, and his wife, were murdered on his farm in Washington township, Schuylkill county. She was found on the next morning lying across her bed insensible and partially undressed, but afterwards became conscious and able to state some of the circumstances of that night, and died on the 4th of March following. Her son, living away from home, who first found her, ran to give the alarm, and on his way discovered the dead body of his father lying at a distance from the house of about three hundred yards. Near him was found a heavy oak club covered with blood and hair. The wounds on the head of both husband and wife were such as this weapon would probably make, and were of a fatal character. The chest, bureau and desk in the house had been broken open, and evidenced that the perpetrator of the murders had been in pursuit of plunder. The only inmate of the house, beside Mr. and Mrs. Kraemer, was her mother, a lady so old, deaf, blind and helpless that she could furnish no information. All the circumstances evidenced that the murders and the search for money were contemporaneous and part of the transaction.
The prisoner has been twice tried and convicted. The first conviction for the murder of Daniel Kraemer was reversed for errors more technical than substantial. The second conviction was for the murder of Mrs. Annetta Kræmer, and this is the record before us.
Under these circumstances, before reversing a second time, a court should feel satisfied a substantial error has been committed. Of the forty-six assignments of error, only a few present questions of substance. Many are unsubstantial, others are technical, and some are unsupported by the requisite evidence. We shall notice those only we think deserving, and shall group many of them together.
The first subject of remark are the objections to the jurors. In Dyott v. Commonwealth, 5 Whart. 67, it was held that after a prisoner stands mute, a plea of not guilty is entered for him and he participates in the trial and is convicted, the case falls within the provisions of the Act of 21st of February 1814, enacting that a trial on the merits, or pleading guilty on the general issue, shall be a waiver of all errors and defects in or appertaining to the precept, venire, drawing, summoning and returning of the jurors. This decision resulted from the language of the Act of 23d September 1791, relating to prisoners standing mute or challenging peremptorily more than the allowable number of jurors, that the trial shall proceed in the same manner as if the prisoner had pleaded not guilty, and put himself for trial on the country. We do not think this decision is applicable to a case where the prisoner makes his objections at first to the panel of jurors, and on their being overruled, takes a proper bill of exceptions; but the decision is strongly illustrative of the unwillingness of courts to sustain objections to the jury, grand or petit, after a full and fair trial on the merits. It is therefore sufficient to say, as to the first and eighth assignments of error to the refusal of the court to quash the array of the grand and the petit jurors, that the objections of the prisoner were squarely traversed by the Commonwealth by plea, while the bill of exceptions contains no evidence of their truth. We must presume the court had sufficient ground to refuse the challenge.
The second, third, fourth and fifth errors raise the single question whether, upon a challenge to the polls of grand jurors, the prisoner will be permitted to examine them on their voir dire to support his objections. The court was willing to receive other proof. As to petit jurors, who try the prisoner, and therefore should be above all exception, the rule is to permit them to be examined on their voir dire to prove objections to their competency. But the reason does not hold good as to the grand jurors, who do not try the prisoner, but merely inquire on the evidence of the Commonwealth alone, whether there is sufficient probable ground of the commission of the offence charged in the indictment laid before them. It would be impossible to conduct the business of the Courts of Quarter Sessions and Oyer and Terminer, if every person indicted for an offence could claim the right of polling the grand jurors on their voir dire in order to purge the panel. Indictments for murder may be found in the Quarter Sessions and certified into the Oyer and Terminer. A due regard for public policy, as well as for the interests of justice and the nature of the inquiry, forbids that grand jurors should be polled and tried in this manner. If the prisoner have evidence to purge the panel, let him produce it.
6th assignment. That a bill of indictment may be sent up to the grand jury by the attorney-general, or now, by the district attorney, with the sanction of the court, is shown in McCullough v. Commonwealth, 17 P. F. Smith 30. It does not appear that the bill before us was sent up surreptitiously.
10th assignment. The 41st section of the Criminal Procedure Act of March 31st 1860, is a summary (say the codifiers) of the 144th, 145th, 146th, 147th and 148th sections of the Act of 14th April 1834, which are left unrepealed: 1 Brightly, note c, p. 385; The venire awarded under 147th section makes no distinction between the bystander and persons in the county at large. Nor does the 41st section of the Act of 1860 make a discrimination. There is no ground, therefore, to support a distinction, and it certainly infringes no rule of right or of policy to hold that, under an order of talesmen, the venire must issue generally and not specially to summon the bystanders only, or specially for persons from the body of the county only. Under the...
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