Commonwealth v. Clemmer

• Decision Date: 13 March 1899
• Docket Number: 349
• Citation: 190 Pa. 202,42 A. 675
• Parties: Commonwealth v. James A. Clemmer, Appellant
• Court: Pennsylvania Supreme Court

42 A. 675

190 Pa. 202

Commonwealth v. James A. Clemmer, Appellant

No. 349

Supreme Court of Pennsylvania

March 13, 1899

Argued January 2, 1899

Appeal, No. 349, Jan. T., 1898, by defendant, from judgment of O. and T. Montgomery Co., June T., 1898, No. 79, on verdict of guilty of murder of the first degree. Affirmed.

Indictment for murder.

The facts appear by the opinion of the Supreme Court, and by the opinion of WEAND, J., on motion in arrest of judgment and for a new trial, which opinion is as follows:

After a trial lasting twelve days the defendant was found guilty of murder of the first degree, and now moves in arrest of judgment and for a new trial. As the motion in arrest of judgment is based upon the same reasons which, inter alia are also urged as reasons for a new trial the motions will be considered together.

The unlawful killing of Emma Kaiser was proved beyond dispute. The evidence against the defendant was both direct and circumstantial. The direct testimony which proved his presence at the time and place of killing was that of Benjamin Hughes who identified him as being in the vicinity of the place of murder; of Elizabeth DeKalb to the same effect, and to whom Clemmer admitted his guilt and gave the murdered woman's watch to be thrown away, and of Charles O. Kaiser, Jr., the murdered woman's husband, who swore that Clemmer fired the fatal shot. Kaiser had been previously tried, convicted and sentenced for complicity in the crime. The circumstantial evidence consisted in evidence of Clemmer hiring a horse and driving in the direction of the murder with Elizabeth DeKalb, the identification of the horse near the place; the finding of Mrs. Kaiser's watch at Pottsville where Elizabeth DeKalb testified she dropped it at Clemmer's request; letters from Clemmer to Elizabeth DeKalb urging her not to testify and he would save her and not to turn him down, admissions and expressions of Clemmer to various persons showing knowledge of the murder, etc.; his presence at Norristown after Kaiser's arrest and his efforts to procure counsel for him; his flight from the state and change of name, with various other circumstances showing guilt.

If Elizabeth DeKalb's testimony was to be believed there could be no possible doubt of the prisoner's guilt. She was corroborated in a material part by the evidence of Benjamin Hughes whose testimony if believed completely destroyed the prisoner's defense. Thirty-eight reasons are assigned for a new trial. They refer to the competency of McDowell as a jury commissioner, to the filling of the jury wheel, to the competency of jurors, the competency of witnesses, the admission of testimony and the charge of the court, detached sentences of which are assigned and which do not give full weight to the charge as a whole. During the trial every ruling possible was made in defendant's favor, and the jury were told what was necessary to convict. The evidence was overwhelmingly against the prisoner, but we have gone all over the reasons for a new trial carefully in order that no injustice might be done him.

Four grounds are assigned in support of the first reason:

1. The claim is made that John H. McDowell, one of the jury commissioners who assisted in filling the jury wheel and drawing the jury therefrom for June term, 1898, was not a legally elected jury commissioner and that the array of jurors should for that reason be quashed. McDowell was elected in 1894 and re-elected in 1897. He was elected only twice, and consequently was not "re-elected more than once in any period of six years." The prohibition is only against a re-election more than once in said period. If the legislature had intended that a jury commissioner should serve only one term in six years the most appropriate language would have been "not elected more than once," etc. Re-elected is a term that can bear but one meaning, i.e., to elect again -- that is he shall not be again elected twice in six years. Webster's Dictionary defines re-elect, to elect again. The Century Dictionary defines it, re-elect, to elect again. Re-election -- election a second time for the same office, etc. When we say that A has been re-elected twice we mean that he has been elected three times -- the word re-election referring to his second election. In speaking of B as having served as recorder for eighteen years we say that he has been re-elected five times. The period from which re-election is computed in all cases commences from the end of the first election. In this case therefore the six years during which John H. McDowell could not be re-elected dates from the expiration of his first term and he has been re-elected only once.

But even if we are in error in our construction of the act the right to this office cannot thus be attacked collaterally. McDowell is a de facto jury commissioner and before the office can be declared vacant or his election declared illegal he is entitled to a hearing and the remedy is by quo warranto at the instance of the commonwealth. As a jury commissioner de facto as against all parties but the commonwealth he is a jury commissioner de jure: Campbell v. Com., 96 Pa. 344; Shartzer v. School District, 90 Pa. 192; Gregg Township v Jamison, 55 Pa. 468; Com. v. Valsalka, 181 Pa 17.

2. The array of jurors for March term, 1898, was quashed by the court because of an irregularity in the method of selection and not because of any objection to the jurors themselves. At the same time the court directed that the names remaining in the jury wheel be taken therefrom and that 800 names be placed therein to serve for the balance of the current year. In pursuance of this order the names were taken from the wheel and deposited in a sealed envelope which remained unopened in the custody of the clerk of the jury commissioners until brought into court during this trial. The judge and two jury commissioners then refilled the wheel from names selected from the body of the county, not using the papers on which the names of those taken from the wheel had been written. It happened that amongst the names thus deposited were a number who had been placed therein at the filling of the wheel in January, 1898, but none of whom except one had served as a juror during 1898. The first filling of the wheel was on January 12, 1898, and the second on April 20 and 21, 1898. The first term of court in 1898 was the March term, beginning first Monday of March; the second term was June term, beginning first Monday in June.

It is now contended that, because the names of some of those who had been taken from the wheel had again been selected and deposited, the whole selection and filling was illegal. It was not pretended or shown, but on the contrary it was disproved, that the names taken from the wheel were again bodily put back or that the ballots were again used. On the contrary each commissioner and the judge came with new lists made up without reference to those who had been selected in January. It was in every sense a new selection from the body of the county, even if some names were the same as had been before deposited. The case of Kell et al. v. Brillinger, 84 Pa. 276, did not present the same facts for in that case after the names had been taken from the wheel they were divided amongst the commissioners and again redeposited. That was not a new selection. In the present case 800 names were again prepared irrespective of those that had been taken out and were deposited alternately as required by law. The persons whose names were taken from the wheel by direction of the court were not ineligible. The commissioners were required to make a new selection only and not to adopt the first one. If they had decided that the names taken from the wheel could not again be used in a new selection it would not have been from the body of the county, and if such is the law, in some counties with a sparse population if the array should be quashed more than once in any one year, there might not be enough persons subject to jury duty. In Com. v. Baranowski, 6 Pa. C.C. Rep. 157, Judge PERSHING in quashing an array and directing a refilling ordered that the names of those men in the jury wheel should be excluded in the new selection, but afterward concluded that such action was in contravention of the act which requires jurors to be selected from the whole qualified electors of the county, and he revoked his former order. This reason is therefore overruled.

3. When the jury commissioners and judge met to take out the names from the wheel and again fill it, the wheel was produced and the sheriff was obliged to be present to unlock it. The names were then taken out by the sheriff or commissioners, but certainly in the presence of the judge and commissioners, and under their supervision and direction. We do not see any irregularity or impropriety in this, even if we admit that the sheriff removed the names. The essential act was to empty the wheel. This was done by direction of and in presence of the jury commissioners, and by no possibility could this defendant be injured by such action.

4. This reason is partly disposed of by our ruling on the second reason. John P. Jones had served as a petit juror at March sessions, and by mistake his name was again placed in the wheel at the refilling. He had been drawn and served as a juror at March sessions before the array was quashed, but was not drawn for the June term at which this case was tried. The requisite number of jurors were drawn and appeared at the June term and defendant, therefore, had no cause of complaint, for he was not injured in his challenges. The act of assembly forbids the return to the wheel of the name of any person who may have served as a juror during the year in which such service shall be rendered, and...