Commonwealth v. Payne

• Decision Date: 09 February 1903
• Parties: Commonwealth <I>v.</I> Payne, Appellant.
• Court: Pennsylvania Supreme Court

Page 101

205 Pa. 101

Commonwealth

v. Payne, Appellant.

Supreme Court of Pennsylvania.

January 12, 1903.

February 9, 1903.

Argued Jan. 12, 1903.

Appeal, No. 15, Oct. T., 1902, by defendant, from judgment of O. & T. Beaver Co., June T., 1902, No. 1, on verdict of guilty of murder in the first degree in case of Commonwealth v. William M. Payne.

Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ. Affirmed.

J. F. Reed, for appellant.

David K. Cooper, district attorney and John M. Buchanan, for appellee.

OPINION BY MR. JUSTICE MITCHELL, February 9, 1903:

The first assignment of error is to the action of the court below in excusing five of the panel of jurors drawn, and in doing so in advance of the call of the case for trial without the knowledge or consent of the prisoner. The statute prescribes a minimum panel of forty-eight and such a panel should be regularly drawn in accordance with law. But it is not required that the whole panel shall appear in court at the call of the case for trial. Such a requirement would frequently be impracticable. Some of the persons drawn may be dead or removed from the county, and their absence is not ground for challenge to the array. It is not a right of a prisoner to have forty-eight jurors in actual attendance: Rolland v. Com., 82 Pa. 306; Showers v. Com., 120 Pa. 573. So if the jurors drawn attend but prove to be incompetent or incapable of service from sickness or other cause, they may be excused, and the sufficiency of the cause is within the discretion of the judge which is not reviewable: Jewell v. Com., 22 Pa. 94; Foust v. Com., 33 Pa. 338. Whether the juror be excused at the trial or beforehand is also within the sound discretion of the court, though in the latter case the action and the reasons for it should be stated in open court, so that the fact that the excuse was judicially passed upon and found to be sufficient should appear on the record. It would be an unreasonable hardship on a juror seriously ill to require him to be brought into court merely to be excused, and the reasons for disqualification or excuse are so numerous that they cannot be specified beforehand or reduced to any set rule, but must be left to the discretion of the judge to dispose of as they arise.

The next assignments of error are to the calling of the jurors summoned as tales de circumstantibus one at a time. This was within the discretion of the court. There is no right in a prisoner to have any particular man or men on the jury, or any particular set of men from whom to select. His right is only to have the proper number of jurors, "good men and true," as the common-law phrase was, to sit upon his...