Commonwealth v. House

• Decision Date: 18 January 1897
• Docket Number: 65-1897
• Citation: 3 Pa.Super. 304
• Parties: Commonwealth of Pennsylvania v. William H. House, Appellant
• Court: Pennsylvania Superior Court

3 Pa.Super. 304

Commonwealth of Pennsylvania v. William H. House, Appellant

No. 65-1897

Superior Court of Pennsylvania

January 18, 1897

Argued December 15, 1896 [SYLLABUS MATTER] [SYLLABUS MATTER]

Appeal by defendant, from judgment of Q. S., Allegheny Co., June Sess., 1896, No. 452, on verdict of guilty.

Indictment for embezzlement of $ 26,652.74. Before Porter and Kennedy JJ.

The defendant, an assistant of the city attorney of Pittsburg, having been indicted with his chief for embezzlement, it appeared in evidence that the conduct of the office of the city attorney had been the subject of marked comment in the daily press of that city, and especially in a paper called " The Pittsburg Leader," of which Joseph T. Nevin was part owner.

Nearly all the jurors on the panel admitted an opinion on the case on their voir dire. After the four peremptory challenges allowed defendant had been exhausted, Joseph T. Nevin, a juror, was called and examined. He admitted that he had an opinion on the case; that he was one of the owners of the " Pittsburg Leader," one of the newspapers which had been persevering in its denunciation of defendant; that he had read and approved the editorials in his paper pronouncing defendant guilty of the charge from time to time. Nevin was then challenged for cause, by defendant's counsel, but this challenge was overruled because he answered, " to the best of his knowledge and belief he could render a verdict in accordance with the evidence produced in court."

It appears further that Joseph T. Nevin was permitted to take his seat in the jury box.

The verdict, as indorsed on the indictment, was as follows:

" Defendant, Wm. H. House, guilty as indicted on sixth count."

Judgment as indorsed on indictment:

" July 29, 1896, Deft., W. H. House, sentenced to pay a fine of $ 1,000 to the Com., the costs of pros., and imprisonment in Western Pen'y for two (2) years and three (3) months."

Errors assigned were, in overruling the appellant's challenge of a juror, Joseph T. Nevin, founded upon his testimony on his voir dire;

In overruling the appellant's objection to his cross-examination with reference to receiving interest on deposits, as follows, to wit:

" Q. Well, it would aggregate in that neighborhood? You had deposited the greater portion of that money in those banks by the direction of Major Moreland?

A. Yes, sir.

Q. There was interest drawn on that deposit, was there not? Objected to.

Q. I will ask the question in another way that I do not think can be objectionable. Mr. House, did you not yourself, quarterly, within the four years prior to the finding of this bill of indictment, regularly draw interest on those deposits which I have just mentioned?"

Mr. Patterson: I object to this first as not cross-examination; second, because the records of this court show indictments pending against this defendant and Mr. Moreland, based upon the very matters with reference to which the witness is now interrogated; third, it is not alleged that that money is invested; fourth, it is not within anything of which notice is given by the bill of particulars. Objection overruled. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.

Refusing to instruct the witness upon his right to refuse to answer the question allowed under the second assignment of error, as follows, to wit:

Counsel for defendant request the court to caution the witness and to instruct him as to his privilege of declining to answer questions which might tend to criminate him.

The Court: I believe we will have to rule that the witness must answer the question. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.

In overruling the appellant's objection to the following question asked him on cross-examination, to wit:

" Q. In the Tradesmen's National Bank didn't you draw interest down until January, 1895, on the deposit remaining there?"

Mr. Patterson: I object to this as incompetent, irrelevant and not cross-examination.

The Court: Did this witness testify that he had deposited this money in the Tradesmen's Bank?

The witness: Not any of the money that we are charged with embezzling. That all went to the Freehold Bank. Objection overruled. To which ruling of the court counsel for defendant request an exception. Exception allowed and bill sealed.

To the charge of the court which being overruled need not be set out; in entering judgment upon the verdict of the jury finding the defendant guilty as charged in the sixth count of the indictment; in passing sentence upon the appellant " to pay fine of one thousand dollars and costs and imprisonment for two years and three months."

Chas. A. O'Brien and D. F. Patterson, with them Chas. W. Ashley, for appellant. -- As to the right of challenge in criminal cases, see Staup v. Com., 74 Pa. 461, O'Mara v. Commonwealth, 75 Pa. 424, and Ortwein v. Commonwealth, 76 Pa. 414; to the same effect, Allison v. Commonwealth, 99 Pa. 17. As to the standard of fixed opinion of the juror, see Com. v. Crossmire, 156 Pa. 304.

William Yost, with him John C. Haymaker, district attorney, and John S. Robb, for appellee. -- The single count of the indictment which was submitted to the jury was drawn under sec. 65 of the act of 1860, known as the Criminal Code, P. & L. Dig. 1193, sec. 247. For a recent construction of that section by the Supreme Court, see Com. v. Mentzer, 162 Pa. 646; Com. v. Miller, 107 Pa. 276; Com. v. Rogers, 1 S. & R. 124; Fulmer v. Com., 97 Pa. 503. As to the challenge of the juror, cited: Com. v. Crossmire, 156 Pa. 304; Clark v. Com., 123 Pa. 555; Ortwein v. Com., 76 Pa. 426; Com. v. McMillan, 144 Pa. 610.

The second, third and fourth assignments of error are not according to rule and should be disregarded: Com v. Werntz, 161 Pa. 595.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

SMITH, J.

The defendant has a constitutional right to trial by an impartial jury. The question whether he has had such trial is raised by the assignment of error to the ruling of the trial judge on the defendant's challenge of the juror Joseph T. Nevin.

The cause of challenge, while not specifically set forth, as would be the better practice, appears from the tenor of the examination to have been that the juror had, in effect, prejudged the case, or had contracted a bias such as to interfere with an impartial judgment.

In all the reported cases in this state, in which an alleged prejudgment has been made the cause of challenge, the examination of the juror has shown nothing more than the formation of an opinion from newspaper or other reports, or from reading the testimony given on a previous hearing or trial. In such cases the rule is well settled that " if from the examination of the juror, it appears that he has the ability and disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change his impressions or opinions formed from what he had heard or read about the affair under investigation:" Com. v. Crossmire, 156 Pa. 304. An exception is made of an opinion formed from hearing or reading the evidence on both sides on a former trial; " such knowledge excludes the idea of impartiality:" Allison v. Com., 99 Pa. 17; Staup v. Com., 74 Pa. 458; Ortwein v. Com., 76 Pa. 414. But evidence taken before the coroner is not held to create an undue bias: Ibid.

The juror, however, is not to be the final judge of his own frame of mind. It must appear judicially from the attending conditions that the juror " stands indifferent" between the commonwealth and the prisoner, and can reach a conclusion uninfluenced by a preconceived opinion. In Staup v. Com., 74 Pa. 458, the juror, after saying that he had read the evidence on a previous trial, and upon that had formed an opinion as to the guilt or innocence of the prisoner, which he still entertained, and which it would take some evidence to remove, added: " This opinion would not bias or influence my judgment if I were sworn as a juror. If sworn as a juror I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiased by my present opinion." Notwithstanding the juror's own conviction of his impartiality the Supreme Court held him incompetent.

A challenge may be based on previous conduct by a juror indicating a bias, as well as on a previously formed opinion. In Com. v. Mosier, 135 Pa. 221, a juror challenged by the commonwealth had conversed with the defendant and had exchanged cigars and drinks with him. The Supreme Court said: " We think this was sufficient. The commonwealth was not bound to accept a juror who had been on such easy terms with the defendant." E converso, a defendant would not be bound to accept a juror whose conduct had indicated in equal measure a bias against him. In Com. v. Cleary, 148 Pa. 26, after reversal of a conviction of murder in the first degree, a petition by residents of the county was presented to the court, setting forth that the petitioners were " of the opinion that the requirements of justice will be fully satisfied" by a plea of guilty of murder in the second degree, which the prisoner was willing to enter, and praying the court to receive such plea. A juror who had signed this petition, though not challenged, was held incompetent by the trial judge; and this was sustained by the Supreme Court, Mr. Chief Justice Paxson saying: " It (the petition) was a deliberate expression of opinion on the part of the petitioners as to the merits of the case, reduced to writing and signed by this juror. We do not think the juror, under the circumstances,...