Dunn v. Commonwealth

• Decision Date: 23 September 1847
• Citation: 6 Pa. 384
• Parties: DUNN <I>v.</I> The COMMONWEALTH.
• Court: Pennsylvania Supreme Court

6 Pa. 384

DUNN v. The COMMONWEALTH.

Supreme Court of Pennsylvania.

September 13, 1847.

September 23, 1847.

Sept. 13.

IN error from the oyer and terminer of Allegheny county.

Alden and McCandless, for plaintiff in error.—It is essential that the record show that the prisoner was called upon to say why sentence of death should not be pronounced: 4 Black. Com. Appen. 356; 1 Chit. Cr. L. 700; Geary v. King, 1 Show. 127; King v. Harris, 1 Lord Raym. 267; King v. Spike, 3 Salk. 358; King v. Perin, 3 Saund. 392; Doebler v. Comm., 3 Serg. and Rawle, 237.

Magraw, contrà, referred to three cases among the records of the court below, to show the practice of making up the records in that county.

Sept. 23. COULTER, J.

In criminal jurisprudence, forms of trial are conducive to the liberty and safety of the citizen. They were first established for that end, and have been resolutely asserted and maintained in England, by the distinguished ornaments of the legal profession, against the encroachments of the crown in times of political persecution; and even by the crown lawyers, in cases where the prerogatives, or interests, of royalty were not concerned. These forms were brought to this state by our fathers, with the inheritance of the common law; and it was doubtless with a view more especially to criminal trials, that the clause in the bill of rights, which provides that "trial by jury shall be as heretofore," was inserted. The 6th section of the act of Assembly of 31st May, 1718, enacts that, in cases which affect life, the judgment and execution shall be as in England. This section, in the late edition of our laws, is marked as obsolete; but, as length of time will not repeal a statute, I know not by what authority it is so marked. The place of execution and the manner is altered by our statute of the 10th April, 1834; but, in relation to the judgment or sentence, there is no alteration in any statute as to form or manner of its rendition. The first section of the same act, which enacts that in case of high treason the trial shall be by due order and course of the common law, remains on our statute book without any mark of non user, and in full force. As the trial for murder may result in the extinction of the life of a human being, which is the worst event that can be accomplished in the trial for high treason, I can see no reason for relaxing the rules of trial in one case more than in the other.

This statute of 1718 is the ground-work of our criminal law, and so remains on the statute book. The legislature, though they have brushed away some of the common-law forms attending the jury trial in civil cases, which were unsubstantial, to their distinguished honour have left untouched the common-law forms which regulate trials that affect life; these they have trusted to the watchful guardianship of the courts having jurisdiction over such crimes. Then why, under these circumstances, should this court be less circumspect than the Court of King's Bench in England, where they are less chary of human life than we are, and where their criminal code is marked with greater severity than ours. There are defects in this record which, I apprehend, all lawyers conversant with the subject will admit would not stand the scrutiny of a court of error in England. I will not say, however, that a long course of practice may not have obliterated, in this state, some immaterial and unsubstantial forms in the conduct of criminal trials; but those which are of substance — those which protect and cover the enjoyment of life, by securing important rights to the accused, are safe and untouched, and must remain so while the constitutional mandate is observed, and until this court surrenders its conservative power.

This brings us to the inquiry whether the record of the trial, conviction and sentence, in this case, shows that every substantial right (according to the forms of the common law, as used and approved at the time of the adoption of the constitution) was secured to the prisoner. This question is answered by the fact, that it does not appear that the prisoner was present at the time the verdict was rendered against him, and leaves it doubtful whether he was present even on the trial. But it may, perhaps, be alleged that the arraignment is full evidence of his presence on the trial; and so, doubtless, it would be, if the trial immediately ensued. He was arraigned on the 11th November, 1844, and pleaded not guilty; and it is stated that a jury came, who are named, and the record then proceeds: "Men duly summoned, returned, chosen, by ballot, empannelled and sworn, Nov. 13, 1844, who, upon their oaths, do say," &c. Now, if you refer the date, November 13, to the swearing of the jury, the trial did not commence until two days after the arraignment, and it might be as good evidence of his presence two weeks after as two days, which renders his presence at the trial uncertain, from the evidence of the record. But, if you refer the date, November 13, to the rendition of the verdict alone, and not to the trial, then there is not record evidence that the prisoner was then present.

The difficulty arises from the interposition of the word "who," immediately after the date, which would seem to disjoin the rendering the verdict from that date, and assign it to the time of swearing the jury; which, as I have stated, was two days after the arraignment. But, view it in any aspect, it makes the record doubtful and...