Commonwealth v. Sushinskie

• Decision Date: 07 November 1913
• Docket Number: 261
• Citation: 89 A. 564,242 Pa. 406
• Parties: Commonwealth v. Sushinskie, Appellant
• Court: Pennsylvania Supreme Court

89 A. 564

242 Pa. 406

Commonwealth v. Sushinskie, Appellant

No. 261

Supreme Court of Pennsylvania

November 7, 1913

Argued October 7, 1913

Appeal, No. 261, Jan. T., 1913, by defendant, from judgment of O. & T. Schuylkill Co., May T., 1913, No. 496, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Sushinskie. Affirmed.

Indictment for murder. Before BECHTEL, P.J.

From the record it appeared that two of the jurors challenged by the Commonwealth for cause and excused by the court, when examined on their voir dire, testified as follows:

"M J. Gilmartin, sworn.

"Q. Have you any conscientious scruples against capital punishment?

"A. Not if the evidence warrants, providing it is not circumstantial evidence; if it is, I will not convict a man on that.

* * *

"Q. You are not prepared to say in this case whether or not you would convict a man of first degree providing the evidence warranted it?

"A. If the evidence is circumstantial evidence I would not convict a man.

"Q. In this particular case if you were sworn as a juror, can you positively state now that you would render a verdict of murder in the first degree if the evidence would warrant it?

"A. Yes, sir, if the evidence warranted, if the evidence was plain to my mind to do so, I would do so, and not circumstantial. I want to make myself clear.

"By the Court:

"Q. Suppose some of the evidence in this case would be circumstantial evidence, as to some of the essential facts and you were sworn as a juror in it, would you render a verdict of murder in the first degree if you were convinced beyond a reasonable doubt that the prisoner was guilty of it, notwithstanding the fact that some of the evidence was circumstantial?

"A. If I was convinced, without any doubt in my mind, I would do so, but if there was evidence clear to my mind that he is guilty, I could and would do so.

"Q. Notwithstanding the fact that some of it might be circumstantial?

"A. Some of it might be, no doubt about that. I want to be clear in that respect, some of the evidence might, but if there was evidence enough, plain to my mind, to warrant conviction, I would convict him.

"Q. Do you mean by that that you would not pay any attention to circumstantial evidence?

"A. I will pay lots to the circumstantial evidence, but if there was evidence enough to convince me outside of that that the man was guilty, I would convict.

"Q. Suppose the case depended on circumstantial evidence?

"A. I would not convict a man of first degree if the case was depending on circumstantial evidence.

"Q. No matter how strong?

"A. The circumstantial evidence could not be strong enough for me to convict a man of murder in the first degree.

"Mr. Whitehouse: Challenged for cause.

"The Court: We sustain it.

"Defendant excepts. Bill sealed.

"James Mitchell, sworn.

"Examined by Mr. Reilly:

"Q. Have you heard or read about this case against John Sushinskie?

"A. Heard and read of it.

"Q. Both read and heard about it. From what you read and heard, have you formed any opinion as to his guilt or innocence?

"A. I did, yes.

"Q. Have you such an opinion now?

"A. Yes, I still got that opinion.

"Q. If you were sworn as a juror in this case and took an oath to render a verdict according to the evidence as you would hear it here in court, could you and would you render a verdict upon the evidence and that alone wholly uninfluenced by any opinion that you previously formed or now have?

"A. I could, yes, sir.

"By the Court:

"Q. What would you do with your opinion if you were sworn as a juror?

"A. I would have to cast it aside.

"Q. Could you cast it aside, and would you cast it aside before you heard any evidence, or would it take evidence to remove it?

"A. It would take evidence to remove it.

"Q. Then until you heard evidence in the case you would still be of the opinion you now have?

"A. Yes, sir.

"Q. Is it a strong, fixed opinion?

"A. Well, no, not just very strong.

"Q. Would it require much evidence to remove it?

"A. It would require strong evidence to remove it, good evidence to remove it.

"Q. You could not lay it aside until you heard evidence enough to remove it?

"A. No, I could not.

"Mr. Reilly: You answered differently a moment ago.

"(By request the stenographer read the last question put by Mr. Reilly to this witness and his answer thereto).

"By Mr. Reilly:

"Q. And would do so?

"A. And would.

* * *

"By Mr. Whitehouse:

"Q. You say you have an opinion now as to his guilt or innocence?

"A. Yes, sir.

"Q. Would you take that opinion with you into the jury box and keep it until you heard evidence that would change it?

"A. Yes, sir.

"Q. You would take the opinion with you into the jury box and keep that opinion until you heard evidence to contradict it or offset it?

"A. Yes, sir.

"Mr. Whitehouse: Challenged for cause.

"The Court: We will let you go.

"Mr. Reilly: We ask an exception.

"The Court: Yes. He told me he could not pass on the case until he heard evidence to remove his opinion. I want to get jurors that will be absolutely fair to both sides.

"Defendant excepts. Bill sealed."

The remarks of the district attorney complained of by the defendants did not appear in the transcript of testimony and the only reference thereto was as follows:

"Mr. Whitehouse sums up for Commonwealth.

"During the course of Mr. Whitehouse's address to the jury, in speaking of another case in which a patient stabbed a nurse, he stated that the defendant was convicted of murder in the first degree, Mr. Reilly requested that the words be taken down and that he be granted an exception thereto."

The court charged the jury, inter alia, as follows: "With this burden of proof upon the defendant, evidence which creates only a mere doubt or a reasonable doubt as to his sanity is insufficient to justify his acquittal." (8)

The jury found a verdict of guilty of murder of the first degree upon which sentence of death was passed.

Errors assigned, among others, were in excusing jurors, M. J. Gilmartin and James Mitchell, in refusing to direct that the alleged improper remarks of the district attorney be placed on record, in refusing to withdraw a juror and continue the case after such remarks were made, in refusing to instruct the jury to disregard such remarks and the above instruction. (8)

James B. Reilly, with him Z. F. Rynkiewicz, for appellant, cited: Com. v. Crossmire, 156 Pa. 304; Com. v. Eagan, 190 Pa. 10; Com. v. Nye, 240 Pa. 359; Curley v. Com., 84 Pa. 151; Com. v. Windish, 176 Pa. 167; Com. v. Nicely, 130 Pa. 261; Com. v. Bubnis, 197 Pa. 542; Com. v. Molten, 230 Pa. 399; Goersen v. Com., 99 Pa. 388; Com. v. Silcox, 161 Pa. 484.

C. A. Whitehouse, District Attorney, with him M. F. Duffy, Assistant District Attorney, for appellee. -- The court made no error in sustaining the challenges for cause: Allison v. Com., 99 Pa. 17; Ortwein v. Com., 76 Pa. 414; Clark v. Com., 123 Pa. 555; Com. v. Eagan, 190 Pa. 10; Com. v. Spahr, 211 Pa. 542; Com. v. Crossmire, 156 Pa. 304; Com. v. Roddy, 184 Pa. 274; Com. v. Ezell, 212 Pa. 293; Com. v. Windish, 176 Pa. 167; Com. v. Shields, 50 Pa.Super. 1.

The instructions as to the law upon the question of insanity were correct: Meyers v. Com., 83 Pa. 131; Pannell v. Com., 86 Pa. 260; Com. v. Gerade, 145 Pa. 289; Com. v. Molten, 230 Pa. 399; Com. v. Orr, 138 Pa. 276.

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

OPINION

MR. JUSTICE BROWN:

Two of the jurors called in this case were challenged by the Commonwealth for cause. The first two complaints of the appellant are that the challenges were sustained. The first juror, when examined on his voir dire by counsel for the prisoner, stated that, though he had formed an opinion as to the guilt or innocence of the accused, he could and would render a verdict according to the evidence, if sworn as a juror in the case; but, in answer to a question by the court before he was passed over to the Commonwealth, he said it would require strong evidence to change that opinion, and that he could not lay it aside until he had heard evidence enough to remove it. Upon his examination by counsel for the Commonwealth, he said he would take his formed opinion with him into the jury box, and would keep it until he heard evidence to contradict or offset it. He was thereupon challenged for cause, and excused. What his opinion was, does not appear; but it did clearly appear out of his own mouth that if he had been sworn as a juror, he would have taken his seat in the box with a formed opinion that he could not lay aside until he had heard "evidence enough to remove it." In the trial of cases, and especially capital cases, the great concern of counsel as well as of courts, should always be to secure jurors free from feeling, prejudice or opinions formed as to the questions at issue; for only such jurors can be safely trusted to return verdicts based upon evidence alone. The challenge of a juror for cause is addressed to the trial judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. They are first to be weighed by the trial judge who sees and hears the juror, and, in the exercise of a wide discretion, may conclude that he is not competent to enter the jury box for the purpose of rendering an impartial verdict, notwithstanding his words to the contrary: Ortwein v. Com., 76 Pa. 414; Clark v. Com., 123 Pa. 555; Com. v....