Campbell v. Commonwealth

• Decision Date: 07 May 1877
• Citation: 84 Pa. 187
• Parties: Campbell <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 187

84 Pa. 187

Campbell versus The Commonwealth.

Supreme Court of Pennsylvania.

March 26, 1877.

May 7, 1877.

March 26th 1877.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. SHARSWOOD, J., absent

Error to the Oyer and Terminer of Carbon county: Of January Term 1877, No. 11.

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Edward J. Fox and Daniel Kalbfus, for plaintiff in error.—By the Acts of 14th of April 1834, Purd. Dig. 830, and of the 10th of April 1867, Purd. Dig. 829, certain duties are prescribed for jury commissioners, among others, that they shall take an oath before selecting and drawing jurors. The object of the acts was to secure fair and impartial men as jurors, and in the inflamed condition of the public mind in the community where this trial was held the action of the jury commissioners here complained of was a flagrant violation of these laws.

The Commonwealth did not offer to prove that the defendant in this case had conspired with others to commit crimes, nor that the purposes and objects of the society known as the "Molly Maguires" were known to Alexander Campbell. McParlan's testimony was that, although the organization called the "Ancient Order of Hibernians" had several thousand members in the counties of Schuylkill, Luzerne and Carbon, yet that a comparatively small number of persons, probably less then fifty, had any knowledge that its purposes and objects were criminal in their character; and yet from that testimony the jury were permitted to infer that Campbell was knowingly connected with an organization of criminal character, without proof of the knowledge of the fact on his part.

The indictment charges that McGehan, Carroll and Campbell murdered John P. Jones. The evidence in the trial was that Michael J. Doyle, Edward Kelly and James Kerrigan were present at the murder of Jones, who was shot by Doyle and Kelly, or one of them. Neither Campbell, Carroll nor McGehan were present at the murder, and the allegation of the Commonwealth was that Campbell procured and incited Doyle, Kelly and Kerrigan to shoot Jones, and that he was, therefore, an accessory before the fact to the murder.

The constitution of Pennsylvania provides, in section 9, article 1, that in all criminal prosecutions the accused "hath a right to demand the nature and cause of the accusation against him." It cannot be said that this indictment disclosed the nature and cause of the accusation against him. It may, perhaps, be truly said that it revealed the nature of the accusation against him, in so far that it charged him with the murder of John P. Jones, but it certainly did not disclose to him the cause of the accusation against him. The cause of the accusation was as alleged by the Commonwealth that he procured and incited Doyle, Kelly and Kerrigan to commit the crime; but in what manner does the indictment notify Campbell that he is to meet such a charge?

The principal witness against the defendant was James Kerrigan, one of the principals in the murder. To corroborate him chiefly, James McParlan was called. He was one of Pinkerton's detectives, and was employed to obtain information as to the crimes of the Molly Maguires, and for that purpose he became a member of the order, and remained in the coal region for a long time. He testified that while thus engaged, he was not only cognizant of crimes about to be committed, but that he actually encouraged Molly Maguires to commit crimes, expecting to be able to frustrate their intentions and to bring them to justice. He was even cognizant of the fact that Jones was about to be murdered, and that men had been selected and sent to murder him. He also testified that he thought the measures he had adopted would prevent the accomplishment of their murderous designs; but the court in substance said to the jury, that if they believed he was acting as a detective, he was not an accessory before the fact to the commission of a crime, even though he counselled and encouraged its commission.

Here is a man in the company of men who have criminal designs. They have every reason to believe him to be one of themselves, and that he is ready to aid and abet them in their murderous designs. He counsels and encourages them to commit an act of murder, intending, in his own mind, to frustrate their designs. Without this encouragement, it is safe to assume, they would not have attempted the murder. His plans to secure their victim's safety fail, and he is murdered. Why is not the detective an accessory before the fact? His mental intentions may have been good enough, but his acts and declarations to the conspirators were the immediate cause which produced the death of the object of their hate.

E. R. Siewers, District Attorney, Allen Craig, Charles Albright and F. W. Hughes, for the Commonwealth.—The evidence shows that the jurors were selected from among the qualified electors of the county, that they were selected alternately, and that before their names were written on slips of paper or put into the wheel, the jury commissioners and the sheriff were sworn "according to law," before the prothonotary, who certifies to this fact. The cases of Chase v. The Commonwealth, 2 Weekly Notes 17, and Rolland and Johnson v. The Commonwealth, 1 Norris 306, abundantly sustain the ruling of the court below.

It was important, after showing Campbell's connection with the society of the "Molly Maguires," and his knowledge of its purposes and practices, to show what they were, through and by which the murder of Jones was secured. Nothing but Campbell's knowledge of these practices and purposes could have enabled him to procure two young men, entire strangers to Jones and without a grudge to him, to kill him in cold blood. It was through the power of this organization that men were selected belonging to it, who had never seen Jones, and yet could be induced without any reward or hope of gain to slay an innocent man, simply to gratify the revenge of a fellow member.

A detective who enters into communication with criminals, without any felonious intent, but for the purpose of discovering and making known their secret designs and crimes, and acts throughout with this original purpose, is not to be regarded as an accomplice; the question whether he was, is one of fact for the jury: State v. McKean, 36 Iowa 343; also 1 Greenl. on Evid., sect. 382.

Campbell could be in no doubt as to the nature and cause of the accusation against him: Cathcart v. Commonwealth, 1 Wright 109; Commonwealth v. Twitchell, 1 Brewster 610; sect. 20, Criminal Procedure Act, Purd. Dig. 380, pl. 21; Bishop on Criminal Procedure, vol. 2, sect. 4; Wharton's Criminal Law, vol. 1, sect. 742; Commonwealth v. Keenan, 17 P. F. Smith 203; Young v. Commonwealth, 8 Bush (Ky.) 366; Commonwealth v. Ramsey, 1 Brewster 422.

Mr. Justice STERRETT delivered the opinion of the court, May 7th 1877.

The plaintiff in error was jointly indicted with McGehan and Carroll in the short form, authorized by the Criminal Procedure Act, for the murder of John P. Jones, and when called for trial he moved to quash the array, for the reasons, 1. "That it does not appear from the record that the jurors were selected by persons having authority to do so;" 2. "That the persons who selected the names which were put in the wheel from which the jury were to be drawn, made such selections without having been sworn according to law." These allegations were traversed by the Commonwealth, and the onus of sustaining them, as to matters of fact, was on the prisoner. It was agreed that the testimony taken on a similar motion, in the case of the Commonwealth v. Michael Doyle, should be considered and treated as evidence in this case, so far as the same was competent and relevant. With this and other evidence before them, including the order of the Court of Common Pleas for the selection of persons to serve as jurors, the official oaths of the sheriff and jury commissioners, the venire, &c., the court overruled the motion; and in this it is alleged there was error.

It appears from the official oath filed in the prothonotary's office on the 17th day of November 1875, that they were duly sworn on that day, but it is contended that the oath was not taken until after they had commenced to select the persons whose names were to be placed in the wheel. The commissioners' clerk testified that they met on the 16th, but no jurors were selected on that day; that after preparing the official oath and other papers they adjourned until the following day, when they met between eight and eleven o'clock, he thinks, and proceeded with the business. The testimony of Sheriff Breneiser was offered for the purpose of showing that the official oath was not administered until the afternoon of the 17th, but his recollection as to the time was somewhat indistinct and uncertain. The jury commissioners, doubtless, could have given definite and satisfactory testimony as to whether they were sworn before or after they actually selected some of the names, but they were not called. It appeared, however, that they commenced making the tickets or ballots and placing them in a tin box, used for the purpose, on the 19th or 20th; and this may be fairly regarded as the final passing upon or selection of the names. After this was completed on the 20th, the names were taken from the box and placed in the jury wheel in presence of the sheriff.

The court, in passing upon the evidence before them, came to the conclusion that the allegations of fact in support of the motion were not sustained; and found that "the jury commissioners were sworn before the...