Commonwealth v. Sydlosky

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: SCHAFFER, J.
• Citation: 158 A. 154,305 Pa. 406
• Parties: COMMONWEALTH v. SYDLOSKY.
• Decision Date: 23 November 1931

158 A. 154
305 Pa. 406

COMMONWEALTH
v.
SYDLOSKY.

Supreme Court of Pennsylvania.

Nov. 23, 1931.

158 A. 155

Appeal from Court of Oyer and Terminer, Lackawanna County; William R. Lewis, Judge.

Stella Sydlosky was convicted of murder in the second degree, and she appeals.

Affirmed.

Argued before FRAZER, C. J., and WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY, and DREW, JJ.

P. E. Kilcullen and Carlon M. O'Malley, both of Scranton, for appellant.

John J. Owens, Dist. Atty., and Otto P. Robinson, Asst. Dist. Atty., both of Scranton, for the Commonwealth.

SCHAFFER, J.

The defendant, Stella Sydlosky, stands convicted of murder of the second degree for the killing of the illegitimate male child of Mary Lezinsky, a baby 5 weeks old. She presents to us four reasons why she should have a new trial: (1) That one of the jurors before whom she was tried misled her counsel into accepting him, when, in answer to the query of the district attorney, whether he knew of any reason why he could not be sworn as a juror and render a true verdict, he answered, that he did not, and failed to disclose that he was a British subject. (2) Because the real purpose of the commonwealth in introducing in evidence a photograph of the murdered baby was to incite prejudice against her. (3) Because statements imputing guilt to her, made in her presence, and which she immediately denied, were received in evidence over her objection. (4) That she did not have a fair trial.

As to the first reason, it is sufficient to say that we determined in Com. v. Dombek, 268 Pa. 262, 110 A. 532, that the fact that one of the jurors before whom a defendant was tried and convicted of murder was not a citizen of the United States was not ground for reversal. After the reply to the district attorney's question, the answer to which we do not regard as deceptive in effect, appellant through her attorneys could have further interrogated the juror had she so desired. Not having done so, she cannot complain. Nothing in the Act of April 16, 1925, P. L. 244 (17 PS §§ 1321-1330), alters the principle announced in the cited case. Under that act (section 9 [17 PS § 1329]), any objection or challenge to a juror based on his disqualification for jury service must be made before the juror is sworn, "and cannot be made thereafter. After jurors are sworn without objection all objections to their qualifications * * * shall be deemed to have been waived."

The situation as it relates to the second reason is this: The photograph of the baby was taken after death. The child had been garrotted, and his hands and feet had been cut off, this to prevent identification, as prints had been taken of them in the hospital where he was born. If the photograph was offered for the purpose of exciting the prejudices of the jury against the accused, it should not have been received. Com. v. Winter, 289 Pa. 284, 137 A. 261. Our reading of the record, however, does not convince us that such was the intent in laying the photograph before the jury. The district attorney says it was offered for the purpose of showing the identity of the baby and in order that the jury might have a better understanding of the wounds on its body which physicians had indicated in their testimony. As we said in Com. v. Winter, supra, the admission...