Rolland v. Commonwealth

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Paxson
• Citation: 82 Pa. 306
• Parties: Rolland and Johnston <I>versus</I> The Commonwealth.
• Decision Date: 23 October 1876

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82 Pa. 306 Rolland and Johnston versus The Commonwealth. Supreme Court of Pennsylvania. June 9, 1876. October 23, 1876.

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June 9th 1876.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON and WOODWARD, JJ. SHARSWOOD and WILLIAMS, JJ., absent.

Error to the Oyer and Terminer of Franklin county: May Term 1876, No. 116.

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J. McD. Sharpe (with him Duncan & McGowan), for plaintiffs in error.—(1.) Error in disallowing the challenge to the jurors. The Act of 10th April 1867 requires that the "jury wheel locked shall remain in the custody of the jury commissioners and the keys thereof in the custody of the sheriff of the county." The jury commissioners had neither actual nor constructive custody of the jury wheel. They ought to have kept it under their exclusive control, even if not in their actual custody. The key of the wheel was accessible to strangers at all times. It is not necessary to show that the jury wheel has actually been interfered with (Brown v. Commonwealth, 23 P. F. Smith 322), it is enough to show that the statutory requirements were not fulfilled. It did not appear that both of the commissioners sealed the wheel as required by law. The provisions of sect. 119 of the Act of 14th April 1834 were wholly disregarded.

Foust v. Commonwealth, 9 Casey 338, relied upon by the court below, is not the same case; here only thirty-five jurors were summoned, and no effort was made to fill the panel as required by law. No certificate was made out of jurors who had served or of those excused, exempted, &c., from duty, as required by sect. 128 of Act of 14th April 1834; nor were their names returned to the wheel as required by sect. 135.

Further, sects. 118, 123 and 125, of the Act of 1834, supra, provide that the sheriff and commissioners shall draw the names from the wheel and also that the sheriff shall summon the persons drawn. Here are two distinct and independent duties; there ought therefore to have been two separate returns; one that the jurors were lawfully drawn, and the other that they were lawfully summoned. In Eaton v. Commonwealth, 6 Binn. 447, where the record showed that the jurors were summoned, but did not show that they were drawn, judgment on a verdict of guilty was held bad.

(2.) Error in refusing to quash the indictment. As to the fact that two of the grand jurors were stockholders of the bank, the defendants raised the objection as soon as they could; having in view a change of venue under the statute, they could not object to the grand juror without waiving their rights under that statute. They made the objection before pleading and arraignment and while the grand jury was still in session. In Doyle v. State of Ohio, 17 Ohio 222, and Huling v. Same, 17 Ohio St. 588, the objection was raised by a plea; State v. Rockafellow, 1 Halst. 340, in arrest of judgment, was based upon a statute. Commonwealth v. Smith, 9 Mass. 109, was qualified in Hammett v. Bassett, 2 Pick. 563; Commonwealth v. Clark, 2 Browne 325; 1 Whart. Cr. L. 472.

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(3.) Error in admission of evidence. There was no evidence to connect either of the defendants with the satchel found by Ludwig or its contents, or with the tool found by Berry; such being the case, the finding of these articles near the bank was not material to the issue: Commonwealth v. Wilson, 2 Cush. 590; People v. Larned, 3 Seld. 445; Ruloff v. The People, 45 N. Y. 213; Hall v. People, 6 Parker 671; State v. Wisdom, 8 Porter 511; State v. Whittier, 8 Shep. 341; Kinchelow v. State, 5 Humph. 9; Williams v. State, 45 Ala. 57.

(4.) Error in answers to points. The word "or" (break or enter) in sect. 135 of the Act of 1860 must be construed "and;" otherwise sects. 135 and 136 define the same offence and provide different penalties for them. This is frequently done in construing statutes: Murray v. Keyes, 11 Casey 384; Bollin v. Shiner, 2 Jones 205; Dwar. on Stat. 772. An entry without breaking is a felony under sect. 136: Hollister v. Commonwealth, 10 P. F. Smith 105. The "breaking out" of a dwelling-house was not burglary at common law; the statute of 12 Anne, which made it so, has never been in force here: 4 Blacks. (Sharswood) ^*227; 2 Bish. Cr. L., sect. 105; 2 Whart. Cr. L., sect. 1546; Commonwealth v. Strupney, 105 Mass. 588; State v. McPherson, 2 Green Cr. L. R. 737; Foster v. Commonwealth, 8 W. & S. 77.

(5.) Error in not allowing defendant's counsel to sum up. 3 Whart. Cr. L., sect. 3011, shows that this is the practice.

O. C. Bowers, District Attorney (with him Kennedy & Stewart), for defendant in error.—The law places a joint responsibility upon the sheriff and the commissioners. The evidence shows that both wheel and key were in proper custody. The defendants below did not show affirmatively that the wheel was not sealed according to law.

It is not necessary that the whole forty-eight should be summoned: Rex v. Hunt, 4 B. & Ald. 430; Foust v. Commonwealth, 9 Casey 339; Sparks v. Plankinhorne, 4 Yeates 384. The absence or removal of any of the jurors was not known to the officers; it was therefore not possible for them to destroy the slips and draw other names. Again, the provisions of the law, which require the prothonotary to certify to the sheriff, &c., the names of jurors who have served, &c., and which require the sheriff, &c., to return to the wheel names of those excused, defaulting, &c., are only meant to secure a uniform distribution of jury duty, not to protect the accused: Friery v. People, 2 Keys 424; Ferris v. People, 35 New York 125.

As to the return to the precept. The Act of 14th April 1834, provides for but one writ, and the return to it is to be made only by the sheriff. The return in this case was erroneous, but it is amendable: Dewar v. Spence, 2 Whart. 221. Stainer v. James,

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Cro. Eliz. 311, shows the distinction between an insufficient return which is amendable and an album breve. See also Commonwealth v. Smith, 2 S. & R. 303; Commonwealth v. Chauncey, 2 Ashm. 99.

The grand jurors who were stockholders of the bank were not disqualified; the offence was against the real estate, not against the bank: Treasurer of Middleton v. Ames, 7 Verm. 166. The defendants could only have taken advantage of this before bill found: Commonwealth v. Smith, 9 Mass. 107. They knew of the supposed disqualification before they were indicted: Hubert v. Shaw, 11 Mod. 111.

By excluding the words "dwelling-house" from the purview of the word "same" in the second clause of sect. 136 of the Act of 1860 (amended by the Act of 1863), sects. 135 and 136 can be harmonized. Then sect. 136 provides against entering a dwelling-house in the day time with or without breaking, with intent, &c., and the entering other buildings either by day or night with or without breaking, with intent, &c., and imposes a lighter penalty upon these offences. This section also shows that the legislative mind made no distinction between entering by breaking and without breaking. Even if "or" is construed "and" in sect. 135, yet two of the counts charge breaking and entering and the jury found a verdict on all of the counts.

The question of summing up to the jury is one of practice, not of right: Whart. Cr. L., sect. 3011, note r. Even if the court below was in error, this would not warrant a new trial, in cases of clear guilt: Hunt v. State, 49 Ga. 255; s. c. 2 Gr. Cr. R. 587; People v. Fenwick, 45 Cal. 287; s. c. 2 Gr. Cr. R. 218.

Mr. Justice PAXSON delivered the opinion of the court, October 23d 1876.

This cause was contested step by step in the court below, and pressed with marked zeal and ability here. The Commonwealth was met at the threshold of its case with a motion to quash the array of grand and petit jurors, and also to quash the indictment. Both motions were overruled, and this action of the court below forms the subject of the first and second specifications of error. We will consider briefly the reasons assigned in support of these motions respectively. It was urged that there was irregularity in regard to the custody of the jury-wheel, the sealing of the same, and in the manner in which the keys were kept. It appears from the evidence taken in support of the challenge to the array, that the wheel was deposited by the jury commissioners in the vault of the county commissioners' office, after being first placed in a chest, and the chest locked. The clerk of the county commissioners was also the clerk of the jury commissioners, and was duly sworn. It was therefore in the actual charge of their own sworn officer. After the drawing of the jurors for the February Term, the sheriff and one at least of the jury commissioners sealed the wheel. The other jury commissioner was not sworn. The sheriff says: "I have a

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seal. Mr. Etter has also a seal. My seal is on this wheel. These impressions are not with the same seal. Two seals were there, I think — that is my impression." It also appeared that the sheriff kept the key of the wheel in his desk at his office, to which his son, who is also his deputy, had access. The desk was not kept locked all the time. The second section of the Act of 10th April 1867, Pamph. L. 62, provides, that "the said jury-wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the custody of the sheriff of said county." We must give this section a reasonable interpretation. It does not designate where the wheel shall be kept, and provides no place in which the jury commissioners may deposit it. It was not intended that they should carry it to their private residences. In many instances they reside several miles...