Commonwealth v. Freeman

• Decision Date: 11 February 1895
• Docket Number: 53
• Citation: 166 Pa. 332,31 A. 115
• Parties: Commonwealth v. Wm. Freeman, Appellant
• Court: Pennsylvania Supreme Court

31 A. 115

166 Pa. 332

Commonwealth v. Wm. Freeman, Appellant

No. 53

Supreme Court of Pennsylvania

February 11, 1895

Argued January 7, 1895

Appeal, No. 53, Oct. T., 1895, by defendant, from judgment of O. & T., Westmoreland Co., Aug. T., 1894, No. 14, on verdict of guilty. Affirmed.

Indictment for murder. Before DOTY, P.J.

At the trial, after the prisoner had been duly arraigned and pleaded not guilty, and thirty jurors had been called, four of whom were selected and sworn, the prisoner moved to quash the indictment, the array of grand jurors and the array of petit jurors, "for the reason that the sheriff and the jury commissioners of Westmoreland county, at the time of selecting and placing in the wheel of the jurors, did not secure the wheel in the manner required by law, they having failed to secure the said wheel and sealing the same with their respective seals, the said wheel being secured with only one seal, if any; and for the further reason that the jury wheel and the key thereof were both kept in the custody of the sheriff, whereas the act of assembly requires one to be in the custody of the sheriff and the other in the custody of the jury commissioners; and for the further reason that the jury wheel has not been kept in a secure place under lock and key by the jury commissioners; the motion having been made as soon as these facts came to the notice of the defendant."

The court refused the motions, as too late. [1-4]

The court also refused defendant's offer to prove the facts alleged in the motion, [5] and refused challenges. [6]

Verdict guilty of murder of the first degree. The court refused a motion for a new trial, [7] and in arrest of judgment, [8, 9] and passed sentence upon the verdict. [10]

Errors assigned were (1-10) above rulings and orders, quoting them in substance.

The judgment is affirmed and record remitted that it may be carried into effect according to law.

James S. Beacom, Curtis H. Gregg with him, for appellant, cited Brown v. Com., 73 Pa. 321; Ins. Co. v. Adams, 110 Pa. 553; Alexander v. Com., 105 Pa. 1; Com. v. Hoofnagle, 1 Brown, 201; acts of Feb. 21, 1814, 6 Sm. L. 111; April 14, 1834, P.L. 356; April 10, 1867, P.L. 62; Haddock v. Com., 103 Pa. 249; Com. v. Spring, 5 Clark, 240; Com. v. Smith, 2 S. & R. 299; People v. McKay, 18 Johns. 212; Com. v. Bradney, 126 Pa. 199; Klemmer v. R.R., 163 Pa. 521; Dyott v. Com., 5 Whart. 67; Brown v. Com., 76 Pa. 336; Kell v. Brillinger, 84 Pa. 278.

Joseph A. McCurdy, district attorney, J. E. B. Cunningham with him, for appellee, cited: Acts of March 31, 1860, § 53, P. L. 443; Feb. 21, 1814, P.L. 60; Burton v. Ehrlich, 15 Pa. 236; Com. v. Sallager, 3 Clark, 127; Rolland v. Com., 82 Pa. 306; Brown v. Com., 73 Pa. 321; Jewell v. Com., 22 Pa. 100; Com. v. Haggerty, 3 Brewster, 285; Whart. Cr. Pl. & Pr., 8th ed. §§ 344, 396, 610; Com. v. Chauncy, 2 Ash. 90; 2 Cr. L. Mag. 470; Dyott v. Com., 5 Whart. 67.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The jury, on evidence which fully warranted the verdict, found the appellant guilty of murder of the first degree. The court below, after careful consideration of the reasons therefor, overruled a motion for a new trial, and imposed sentence of death; and from this judgment defendant appeals, assigning for error the refusal of the court to quash, for irregularities, the indictment and the array of grand and petit jurors.

Defendant's counsel, in support of the motion to quash, offered to prove: 1. That the jury wheel after being filled had not been sealed as required by law. 2. That the wheel and the key thereto, contrary to law, were both retained in custody of the sheriff. 3. That the wheel was not kept in a place where it could not be tampered with.

As the court declined to hear the oral evidence offered to prove these facts we must assume they existed. We do not consider them trifling or immaterial. The statutes providing for the selection of names to be put in the wheel, how it shall be locked and sealed, its custody and that of the key, should be strictly observed. The officers charged with this duty are allowed no discretion and are subject to severe penalties for either willful or negligent omission. But a complaining suitor for mere irregularities must make his objection in time or he will be deemed to have waived it. Here, the prisoner, on being arraigned, pleaded "not guilty;" then twenty-three jurors were called; fifteen of these were stood aside by the commonwealth; four were peremptorily challenged by the prisoner and four were accepted by him and sworn to try the issue; then the motion to quash was made which was overruled by the court because made too late.

All the text writers concur in holding that, after plea pleaded, a motion to quash for such...