McFadden v. The Commonwealth

• Decision Date: 25 July 1853
• Citation: 23 Pa. 12
• Parties: McFadden <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

23 Pa. 12

McFadden versus The Commonwealth.

Supreme Court of Pennsylvania.

July 25, 1853.

ERROR to the Court of Oyer and Terminer of the county of Philadelphia.

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Webster and Phillips, for plaintiff in error.—By the 153d section of the Act of 14th April, 1834, every person arraigned for murder or any other felony, is entitled to twenty peremptory challenges; while, by the 154th section, the Commonwealth is not to challenge without cause.

It was suggested whether it was not the duty of the Court to inquire of the juror and ascertain the state of his moral or religious feeling: 2 W. & Ser. 262, Cubbison v. McCreary; 4 Whar. 334, Quinn v. Crowell; 1 Greenleaf, sec. 369 & note; 4th sec., 9th Art. of the Constitution of Pennsylvania.

It was further contended that it was too late to dismiss the juror or discharge the juror after a tales had been awarded and returned. The tales was awarded to "fill up" the jury. In opposition to the discharge, reference was made to the case of Commonwealth v. Cook, 6 Ser. & R. 577; Commonwealth v. Clue, 3 Rawle 498; Dunn v. Commonwealth, 6 Barr 384; Peiffer v. Commonwealth, 3 Harris 468; Doebler v. Commonwealth, 3 Ser. & R. 237. Though the jurors empannelled were not sworn, the prisoner was in the power of the Commonwealth for trial. There must be a necessity for a discharge of the jury to authorize it: 2 Grat. 567, Williams v. Commonwealth. If the jury in a capital case separate without returning a verdict, the prisoner shall not be again tried for that offence: State v. Garrigues, 1 Haywood 241; 1 Inst. 227; 6 Missouri Rep. 644, The State v. Spear. It was said that the danger and peril of a verdict do not relate to a verdict rendered; that where the jury are empannelled and the indictment not defective, the life of the prisoner is in peril and jeopardy: 1 Chitty's Criminal Law 63.

Reed, District Attorney, contrà.

The opinion of the Court was delivered, July 25, 1853, by BLACK, C. J.

The defendant was indicted for murder, and being found guilty of murder of the second degree, was sentenced to undergo an imprisonment in the Eastern Penitentiary.

On the trial in the Court of Oyer and Terminer, the prisoner pleaded that he had once before been in jeopardy of life for the same supposed offence, and that he had been acquitted. He set forth in his several pleas the particular facts as follows: — He had been arraigned before the same Court, on the same indictment, at a previous term, and pleaded not guilty. A jury was thereupon called; eleven jurors were chosen, and all the rest of the pannel challenged or set aside. A tales was awarded, but before the selection proceeded any farther, and before any of the jurors were sworn, the District Attorney claimed the right to challenge (for cause) one of those already chosen. The Court permitted the cause to be shown, and sustained the challenge. When the twelfth juror was called, the prisoner refused to take any part in the selection; and the Court, on the motion of the District Attorney, dismissed the jurors, and postponed the trial to the following term.

To these pleas the Commonwealth replied that no one of the jurors had been sworn before they were dismissed; and, therefore, the prisoner was not acquitted or in jeopardy. To which replication the prisoner demurred.

The judgment of the Court on the demurrer, was against the prisoner, who, when called on to plead over, stood mute. The plea of not guilty was put in for him, and the trial proceeded with the result already mentioned.

If it can be legally said of the prisoner, that the proceedings at the first term after the indictment was found placed him in jeopardy, the subsequent conviction was wrong and should be reversed. Neither the constitution nor the rules of the common law will permit a man to be twice tried for the same offence.

It seems unnecessary to say that the mere continuance of a cause is within the discretion of the Court. Refusing it to a prisoner when he gives good reasons for it, or granting it to the Commonwealth without any reason at all, is neither a defence to the accused party when he comes to be tried, nor a legal assignment of error in this Court. But a discharge of the jury, in a capital case, after the trial has begun, is not a continuance of the cause. It is the end of it. And for all purposes of future protection, it is the same to the prisoner as an acquittal, unless it was done with his own consent or demanded by some overwhelming necessity: such, for instance, as the sickness or death of a juror.

When does the trial begin? Not properly until the jury is charged with the prisoner. But the practice of formally charging the jury is not generally observed in the Courts of this state, and we cannot refuse to a party any of the rights which he would otherwise have, merely because a form is omitted by the public officers. We must, therefore, hold that the jury has the prisoner in charge, when a full jury is empannelled, and all the...