Commonwealth v. Valsalka

• Decision Date: 19 April 1897
• Docket Number: 100
• Citation: 181 Pa. 17,37 A. 405
• Parties: Commonwealth v. Peter Valsalka, alias Wassel, Appellant
• Court: Pennsylvania Supreme Court

37 A. 405

181 Pa. 17

Commonwealth v. Peter Valsalka, alias Wassel, Appellant

No. 100

Supreme Court of Pennsylvania

April 19, 1897

Argued March 22, 1897

Appeal, No. 100, T., 1897, by defendant, from judgment of O & T. Luzerne Co., April T., 1896, No. 133, on verdict of guilty of murder in the first decree. Affirmed.

Indictment for murder. Before BENNETT, J.

Verdict of murder in the first degree.

On a motion in arrest of judgment and for a new trial BENNETT, J filed the following opinion:

We will consider in their order the several reasons filed in support of this motion, -- the first four being directed to the alleged illegality of the indictment.

1. It is claimed that there was no legal indictment because the persons who found it were selected by jury commissioners who had not taken and filed in the office of the prothonotary the oath of office prescribed by art. 7, sec. 1, of the constitution, and therefore such commissioners were not legally qualified to act.

The record shows that this reason comes up under the following circumstances: Before pleading, defendant's counsel moved to quash the arrays of grand and petit jurors, as also the indictment, because, as alleged, the jury commissioners, S.W Taylor and J. F. Dohl, had never taken the oath in question, nor filed the same. At the request of the counsel for this motion, who had not sufficient evidence at hand to support the facts involved in it, the court was adjourned to enable the defendant to produce the jury commissioners to establish such fact. At the meeting of the court, these persons were produced and sworn, and from their evidence, it appeared that they had taken, reduced to writing and signed the oath of office before the deputy recorder, in the office of that officer, and had there left it, -- this being before the beginning of their official terms. That they supposed, from information received upon inquiry, that this was all that the law required of them in that behalf. We thereupon found, as matter of fact, that these officers took the oath prescribed by the constitution, and we overruled the motion, -- adding, in our ruling, that even though the oath was not filed in the prothonotary's office, that would not be a sufficient reason for allowing the motion, in that the portion of the constitution relating to the filing of the oath, is directory rather than mandatory. The first clause of sec. 1, art. 7, constitution, requires . . . county officers, before entering upon the duties of their respective offices, to take and subscribe the form of oath there given; the next clause requires such oath to be administered by some person authorized to administer oaths . . . and in case of county officers, that it shall be filed in the office of the prothonotary of the proper county; and the next provides "and any person refusing to take said oath or affirmation shall forfeit his office." Our meaning at the time of overruling this motion would have been more clearly expressed had we said that the clause prescribing a forfeiture of office has reference merely to the refusal to take the oath, and the failure to file it is not a cause of forfeiture, nor is the filing a prerequisite to the right and qualification of the officer to enter upon the duties; but such filing is directed merely for the purpose of preserving the oath as evidence that it has been taken, and the act of filing may be performed at any time.

In support of the first reason filed and now under consideration, it has been argued at length that in construing express constitutional provisions courts have no authority to hold that any of them is merely directory or anything less than mandatory, and, therefore, as the oath was not filed when the jury commissioners filled the jury wheel, or afterwards when they drew the panels of jurors, the motion to quash the arrays and the indictment ought to have prevailed. Whatever may be said of this first proposition, it does not meet the facts of the case and the real question before and in the mind of the court when the ruling was made. As already indicated, the constitution does not expressly say that the oath shall be filed before the officer enters upon his official duties, nor that he shall forfeit his office if he fails to file said oath, and if such was the meaning it arises from implication only. At the time of the ruling these features were in mind, as also what was said by GIBSON, C.J., in Com. v. Clark, 7 W. & S. 133, as to the commands of the constitution, namely; that "its commands, as to the time or manner of performing an act, are to be construed as merely directory wherever it is not said that the act shall be performed at the time and in the manner prescribed and no other."

Without further commenting upon the reasons given or intended to be applied by the court in overruling the motion in question, we are satisfied that the ruling was correct upon other grounds, namely: The constitutional provisions in question do not relate to the mode of the exercise of the official functions of the officers there named, after they shall have entered upon the duties of their offices; but only to what they shall do, after their election or appointment and before beginning the performance of official duty, in order to entitle them to the right and power to act. To be more specific, these provisions do not pertain to the mode of procedure of the jury commissioners of this county, Messrs. Taylor and Dohl, either in their filling the jury wheel with the names from which the grand and petit jurors here involved were drawn, or in the drawing of those juries. Nor is there any allegation that said commissioners were not duly and regularly sworn, first, before the filling of the wheel, and next, before drawing the panels in accordance with the act of assembly in such case provided. The constitutional provisions, however, relate to the duties of Messrs. Taylor and Dohl before assuming to act as jury commissioners for any purpose, in order to entitle them to the right and power to thus act. And even though their oaths of office were not actually filed in the office of the prothonotary, the most that can be said of their delinquencies is that they neglected a prescribed constitutional duty before asserting their powers as commissioners; not, however, that they neglected a duty, the nonperformance of which constituted a cause of forfeiture of office, for that cause is the refusal to take the oath. These persons have acted as jury commissioners, and this is admitted both in the motions made at the trial and in the reasons now before us. They are therefore, at least, officers de facto in any and every event, and their legal right and power to act as such cannot be gainsaid by the defendant in this case, as this question could only be raised by parties other than the defendant, and in another proceeding instituted directly against these officers. See Keyser v. McKissan, 2 Rawle, 139; Clark v. Com., 29 Pa. 129; Campbell v. Com., 96 Pa. 344; Shartzer v. School Dist., 90 Pa. 192; Gregg Twp. v. Jamison, 55 Pa. 468; Com. v. Slifer, 25 Pa. 23-31.

2 and 3. The second reason is that the petit jury that appeared to try this cause were illegally impaneled because they were drawn from a jury wheel not in the custody of the jury commissioners; and the third is that the key of the jury wheel was not at all times inaccessible to any other person than the sheriff.

These reasons, like the one already considered, embody complaints without specifying how or wherein the court erred with respect to the matters therein embraced. These complaints are of a serious nature, and in order that our disposition of them may be intelligible, it is necessary to refer to the record facts. After the testimony had been heard upon the motion already considered, counsel for the defendant filed four additional reasons, unsupported, however, by any affidavit or evidence, -- for quashing the arrays and the indictment. The facts asserted in each of these four several reasons, are, upon the face of the latter, either directed to such a period of time as shows their irrelevancy to the matter then before the court, to wit: that of quashing the arrays and the indictment, or to an entirely indefinite period, and therefore having no direct bearing upon the case at hand. We will here reproduce these reasons, numbering them for convenience sake, a, b, c, d, as follows: (a) because the jury wheel is not in the custody of the jury commissioners; (b) because the key of the jury wheel has not at all times been inaccessible to any other person than the sheriff; (c) because the prothonotary of the court of common pleas and the clerk of the court of quarter sessions and oyer and terminer did not, nor did either of them, certify to the sheriff and jury commissioners of the said county, at the end of the preceding term of their respective courts, the names of the jurors who appeared and served at the said terms; also the names of those who made default or were excused from serving as jurors at that time, and also the names of those who were privileged or exempted from serving as jurors; (d) because the jury wheel has not been sealed as prescribed by the act of assembly.

After filing these several reasons, counsel for defendant made an offer to show the facts asserted therein, this offer being in the exact language of the reasons and, therefore, equally as indefinite as they in their bearing upon the question of the validity of the arrays and indictment sought to be quashed. These reasons and the offers were severally overruled, and in overruling them the court, in order that the counsel should not be misled as to the causes for such action, but might remold his reasons so as to render them pertinent to the particular indictment...