Commonwealth v. Fisher

• Decision Date: 03 January 1910
• Docket Number: 198
• Citation: 75 A. 204,226 Pa. 189
• Parties: Commonwealth v. Fisher, Appellant
• Court: Pennsylvania Supreme Court

75 A. 204

226 Pa. 189

Commonwealth v. Fisher, Appellant

No. 198

Supreme Court of Pennsylvania

January 3, 1910

Argued October 11, 1909

Appeal, No. 198, Jan. T., 1909, by plaintiff, from judgment of O. & T. Northumberland Co., Feb. T., 1907, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry Fisher. Reversed.

Indictment for murder. Before SAVIDGE, P.J.

At the trial the jury returned a verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

The prisoner moved for a new trial, alleging among other grounds the gross misconduct of the jurors during the progress of the trial. The court overruled the motion.

Error assigned amongst others was the refusal of the court to set aside the verdict on the ground of the misconduct of the jurors.

The judgment is reversed, and a venire facias de novo is awarded.

J. A Welsh, with him John I. Welsh and C. K. Morganroth, for appellant. -- From the time when the right of a trial by jury was established by the English people, down to the present day, the unbroken rule of courts has been that juries in trials involving human life should be kept aloof, and free from all outside influences. This court has reiterated this basic principle in a long line of cases: Kramer v Kister, 187 Pa. 227; Moss v. Com., 107 Pa. 267; Com. v. Eisenhower, 181 Pa. 470; Com. v. Manfredi, 162 Pa. 144; Peiffer v. Com., 15 Pa. 468; Hilands v. Com., 111 Pa. 1.

D. W. Shipman, with him A. K. Deibler, district attorney, and H. W. Cummings, for appellee, cited as to the conduct of the jury: Com. v. Thompson, 4 Phila. 215.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

More than half a century ago Chief Justice GIBSON, speaking for this court in Peiffer v. Com., 15 Pa. 468, said (p. 470): "Even the forms and usages of the law conduce to justice; but the common law, which forbids the separation of a jury in a capital case before they have been discharged of the prisoner, touches not matter of form, but matter of substance. It is not too much to say that if it were abolished, few influential culprits would be convicted, and that few friendless ones, pursued by powerful prosecutors, would escape conviction. Jurors are as open to prejudice from persuasion as other men, and neither convenience nor economy ought to be consulted, in order to guard them against it. Let them have every comfort compatible with their duties; but let them not be exposed to the converse of those who might pervert their judgment."

In Com. v. Roby, 29 Mass. 496, the learned Chief Justice SHAW speaking for the supreme judicial court of Massachusetts on the same subject said (p. 519): "The rule of the authorities is, that where there is an irregularity which may affect the impartiality of the proceedings, as where meat and drink or other refreshment has been furnished by a party, or where the jury have been exposed to the effect of such influence, as where they have improperly separated themselves, or have had communications not authorized, there, inasmuch as there can be no certainty that the verdict has not been improperly influenced, the proper and appropriate mode of correction or relief is by undoing what is thus improperly, and may have been corruptly done; or where the irregularity consists in doing that which may disqualify the jurors for proper deliberation and exercise of their reason and judgment, as where ardent spirits are introduced, there it would be proper to set aside the verdict, because no reliance can be placed upon its purity and correctness."

These cardinal rules should control courts in dealing with the conduct of jurors, and especially in cases where a defendant is on trial for his life. He has the right to be tried by a jury of his countrymen who are free from bias and prejudice and who are permitted to hear and deliberate upon his case from the evidence which is produced on the trial, without any communication or interference by outside parties. It is upon such evidence that the guilt or the innocence of the defendant should be determined, and he has the right to demand of the court that no other evidence shall be heard or considered by the jury. It is also the duty of the court to see that the jury, after they are charged with the prisoner, are not exposed to contact or do not communicate with outsiders either during the progress of the trial, or after they have returned to their room to deliberate and make up their verdict. In other words, from the time the jury is sworn until they have returned their verdict to the court, they must be kept entirely aloof and free from contact or communication with other parties than the bailiffs who have them in keeping during the trial. This is absolutely necessary if the case is to be tried by an impartial and unbiased jury, and the constitutional rights of the defendant are to be protected.

While the jury are to be kept free from outside influences during the trial, it is equally important that the jurors be what the law requires them to be, "sober, intelligent and judicious persons," and that they continue to be such until the verdict has been rendered and the guilt or innocence of the defendant has been determined. It is for this reason that courts of justice will not permit a jury, charged with passing upon the life of a prisoner, to receive and use intoxicating liquors while they have the prisoner in charge. The twelve men who have been summoned and sworn to pass upon his guilt or innocence should be free from the effects of intoxicants which, in the language of Chief Justice SHAW, disqualify them for a "proper deliberation and exercise of their reason and judgment."

Henry Fisher, the defendant, was indicted in the court of oyer and terminer of Northumberland county and was convicted of murder of the first degree. Upon appeal to this court, the judgment was reversed and a new trial was ordered. Fisher was again tried, convicted of murder of the first degree, and has taken this appeal. Among his other complaints, he alleges serious and grave misconduct on the part of the jury which, he contends, has deprived him of his constitutional rights. We agree with him, and are compelled to reverse the judgment on that ground.

The learned court below was asked to correct the misconduct of the jury by granting a new trial, and we think it evident from the opinion of the learned judge refusing the new trial, as well as the concessions made by the counsel for the commonwealth in his argument to this court, that a new trial should have been granted. We will not go over in detail the testimony disclosing the misconduct of the jurors during the trial and after they had retired to deliberate upon the verdict; we will refer to it briefly.

It is apparent that Northumberland county does not have proper and suitable accommodations for jurors empaneled in homicide cases. This is conceded by counsel on both sides of the case, and is made further apparent by the fact that this court has reviewed two capital cases from the county and in both cases we were required to pass upon the misconduct of the jurors. In the present case the jury was sworn at 7:30 P.M. on Wednesday and returned a verdict the following Saturday about 2:30 P.M. The jury were put in charge of two tipstaves, one of whom, it is manifest, is a man whose many years unfit him for the position. The usual oath was administered to these tipstaves in which they swore that they would not permit any person to speak to the jurors, nor speak to them themselves, nor would they speak to them in relation to the trial except to ask if they had agreed upon their verdict or to return to the court room, or concerning their health, comfort and necessities while in their custody. During the trial while the jury was not in court, they were kept at a hotel in the busiest part of the town which, for the reasons shown by the depositions, was an improper and unfit place. When they left the jury box they were required to pass through the crowd in the court room and in a hall; and they entered the hotel through the corridor where they came in contact with the guests of the house. It seems that the sessions of the court were extended into the night. A short time after the jury had been sworn, one of...