Donaldson v. Commonwealth

• Decision Date: 14 June 1880
• Citation: 95 Pa. 21
• Parties: Donaldson <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

95 Pa. 21

Donaldson versus Commonwealth.

Supreme Court of Pennsylvania.

May 27, 1880.

June 14, 1880.

May 27th 1880.

Before MERCUR, GORDON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., and PAXSON, J., absent

Error to the Court of Oyer and Terminer of Warren county: Of May Term 1879, No. 60.

COPYRIGHT MATERIAL OMITTED

R. Brown, for plaintiff in error.—The 23d section of the Act of March 31st 1860, Purd. Dig. 388, remedies any defect or error in the precept issued from the court or in the venire issued for summoning or returning the jurors, but it does not apply to the case when neither precept nor venire for an Oyer and Terminer jury was issued. The venire was issued under a general order or precept, and for a Quarter Sessions jury, and no venire was ordered or issued for the number of jurors required in the Oyer and Terminer. None of the cases of irregularity cited by the court below apply. The case of People v. McKay, 18 Johns. 218, is analogous, where no venire had ever been issued, and it was held that there was an entire absence of authority in the sheriff and not any default of his which could be termed an irregularity.

Under the Act of 1860, a formal certificate is absolutely necessary to transfer the case to the Oyer and Terminer, or the latter court does not acquire jurisdiction. No consent can give jurisdiction: Dougherty v. Commonwealth, 19 P. F. Smith 286; Mills v. Commonwealth, 1 Harris 631. The rule in England seems to be that in a charge of rape there is not sufficient proof of penetration to constitute the offence, unless there be positive medical evidence of some sort of violence to the person: 2 Wh. & Stil. Med. J., sect. 279, 3d. The fact that a physician did examine the prosecutrix the day following the offence was committed, in the presence of and at the instance of her mother, after she accused the defendant of the act, and the physician was present in court during the trial, and was not called by the court, under the English rule ought to have acquitted the defendant, and the court should have affirmed the point.

S. P. Johnson, for the Commonwealth.—The defendant made all the challenges he wished, and there were other regularly summoned jurors in attendance whom he could have selected. The panel was not exhausted in the selection of the trial jury, and no talesmen were called. The defect was merely a harmless oversight. Whether if discovered it could have been taken advantage of is doubtful: Foust v. Commonwealth, 9 Casey 338. If it was a "defect in or relative to or appertaining to the venire" then the trial was a waiver of it. If the defect in the venire and shortage of jurors is not within the spirit and meaning and even the letter of the fifty-third section of the Criminal Procedure Act, it has failed to accomplish what it aimed at.

Brown v. Commonwealth, supra, rules the question of the certificate to the Oyer and Terminer. That the physician was present and equally accessible to either party, is admitted, and when the Commonwealth closed its evidence, the defendant's counsel were openly informed by the district attorney that he did not intend to examine him. The omission to call him was notice that his testimony was not considered valuable for the Commonwealth. Yet after full opportunity to ascertain just what it would be, we came to the same conclusion as to its value on our side. Have not we as much reason to say that their omission to call him was evidence of their client's guilt as they have to say that our not calling him...