Warren v. The Commonwealth

• Decision Date: 28 January 1861
• Citation: 37 Pa. 45
• Parties: John Warren <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

37 Pa. 45

John Warren versus The Commonwealth.

Supreme Court of Pennsylvania.

January 28, 1861.

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

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John S. Richards, A. L. Hennershortz, and C. P. Muhlenburg, for the defendant, contended:

1. That, at the time of the formation of the Constitution of Pennsylvania, the Commonwealth had no peremptory challenges. The revised criminal code of 1860 gives this right, and is in violation of that part of the Constitution which declares that "the trial by jury shall be as heretofore, and the right thereof shall remain inviolate:" Commonwealth v. Jolliffe, 7 Watts 585.

If this right existed in the Commonwealth, it is gone after an attempt to show cause. In this case the answer of the juror showed that he was competent, and the Commonwealth was bound by it.

2. The right to stand jurors aside was an innovation on the common law, and was only permitted because the Commonwealth had no right to peremptory challenges. If the law gives this right now, the reason for standing a juror aside until the panel is exhausted has ceased, and with it the right. With regard to this juror, the Commonwealth undertook to show cause, but failed. When the Commonwealth has commenced to show cause of challenge, but has failed to make out a cause, it is not competent for the attorney-general to stop short, and take the juror away from the prisoner: Commonwealth v. Lesher, 17 S. & R. 155. In The Commonwealth v. McGarby, tried in Philadelphia in 1829, the jurors were examined as here, and on answering affirmatively, were challenged by the Commonwealth.

3. The questions overruled by the court, as given in the third, fourth, sixth, and seventh assignments of error, were proper, as the evidence which they were intended to elicit would have tended to show the state of the prisoner's mind when the offence was committed. The whole case turned on this: every circumstance tending to show how his mind was affected by his habits of intemperance, was important as negativing a wilful, deliberate, and premeditated murder of an unknown person.

5. The question overruled, as stated in the fifth assignment of error, would have elicited important evidence. It would have shown that the prisoner's wife was in Hamburg, and that her meeting the woman who was afterwards killed, was accidental, and that she was a stranger to both Warren and his wife. It was also part of the res gestæ showing Warren's condition at the time. It occurred before Mrs. Warren met the woman, and could not have been manufactured.

8. The instruction assigned here for error was liable to mislead the jury, and did so, by producing in their minds the impression that nothing but actual drunkenness at the time of the homicide would reduce the grade to the second degree: Kelly v. The Commonwealth, 1 Grant's Cases 484.

9. In the instruction complained of in this assignment, the effect of the decision was explained away.

10. No other motive for the homicide being shown, the jury had a right to infer a quarrel or provocation inside of the shanty, and the prisoner was entitled to this instruction.

James B. Bechtel, District Attorney, with whom was Samuel L. Young, for the Commonwealth.

1. The Act of Assembly, allowing the Commonwealth to challenge peremptorily, is not unconstitutional. Trial by jury was established here by the Charter of William Penn to the first settlers, sec. 8, which allowed "reasonable challenges," citing 1 Col. Records 37; Constitution of 1776, C. 1, sec. 2 and 25; Constitution of 1790 and 1838, art. 9, sec. 6, to show that neither of them prohibited the enactment of laws relative to the selection impanelling, and challenging of juries, which is no part of the trial: the mode of trial is left to the legislature: McFadden v. The Commonwealth, 11 Harris 12; Pennsylvania Hall, 5 Barr 205; Dowling v. The State, 5 Smedes & Marshall (Miss. Rep.) 664; Cregin v. Brinton, 2 Strob. (S. C. Rep.) 487; Jones v. The State, 1 Kelly (Ga. Rep.) 610 and 618, 2 Kelly 173; Rafe v. The State, 20 Georgia 60; Jesse v. The State, Id. 156; Colt v. Eves, 12 Conn. 243; Flint River Steamboat Company v. Foster, 5 Ga. 194; 7 Ma. Rep. 500; Emerick v. Harris, 1 Binn. 416; McDonald v. Schell, 6 S. & R. 240; Thompson v. White, 4 Id. 135; Commonwealth v. Rogers, 16 Id. 243; Vannatta v. Anderson, 3 Binn. 417; Hoffman v. Locke, 7 Harris 57; Biddle v. Commonwealth, 13 S. & R. 410.

Every legal presumption is in favour of the constitutionality of an Act of Assembly: Resp. v. Dugent, 2 Y. 493; Commonwealth v. Smith, 4 Binn. 123; Bank v. Smith, 3 S. & R. 68; Eakin v. Raub, 12 Id. 340; Commonwealth v. Zephon, 8 W. & S. 382; Sharpless v. The Mayor, &c., of Philadelphia, 9 Harris 147.

2. As to the second error, they argued that the right of challenge given by the act, was in addition to the right to stand a juror aside. Before the latter right was allowed, the king had an unlimited right of challenge. It has existed in this state and England from the thirty-third year of Edward I.: Roberts's Dig. 339-40; Commonwealth v. Jolliffe, 7 Watts 585.

The two rights are not inconsistent; nor is the one waived by a question as to competency. Passing a juror over to the court or the other party, is no waiver of the right to challenge for cause: McFadden v. The Commonwealth, 11 Harris 16; Mansel v. The Queen, 92 E. C. L. Rep. 52.

The 3d, 4th, 5th, and 6th errors are not well taken. Drunkenness, to reduce homicide to the second degree, must be such as to incapacitate the prisoner to commit wilful, deliberate, and premeditated murder. It is no excuse, but is only evidence of the status of the prisoner's mind when the offence was committed: Penn. v. McFall, Addison 285; Wha. C. L. 369. As to the 8th and 9th assignments of error, the answer was as favourable as the prisoner could expect, and as to the 10th error, it is unsupported by evidence. It is not necessary to prove motive: Commonwealth v. Mosler, 4 Barr 264; Kilpatrick v. The Commonwealth, 7 Casey 198.

The opinion of the court was delivered January 28th, 1861, by THOMPSON, J.

The first assignment of error in this case is to the allowance of peremptory challenges on the part of the Commonwealth. It was allowed pursuant to the provisions of the 37th section of the "Criminal Procedure" Act of 1860. Four such challenges are given to the Commonwealth by this act, in all cases, without regard to any distinction between misdemeanours and felonies.

The question is now presented whether the provision is in conflict with that portion of our constitution which declares "that trial by jury shall be as heretofore, and the right thereof remain inviolate."

This was an early fundamental principle with us. It appears in substance in the first constitution or charter by William Penn to the people of the colony of Pennsylvania: 1 Col. Rec. 37; so in the constitution of 1776, and it is in words the same in the constitutions of 1790 and 1838.

Those who might doubt the power of the legislature to enact the provision in question, will find many statutes in our books, since the first announcement of this fundamental rule of legal polity, seemingly more in conflict with its letter than the one under consideration, which have been often discussed, considered and sustained by our courts. I will notice a few of them. The Act of 1774, which conferred civil jurisdiction upon justices of the peace to the extent of £20, and the Act of 1810, further extending it to $100, together with the provision making the magistrate's judgment final under $5.34, are of this sort. The restrictions upon the enjoyment of the right of trial by jury, involved in the necessity of entering bail, as provided for in these acts for an appeal, although it cannot be doubted but that it is to some extent a clog upon the right, was never held to be an infraction of the constitutional provision, the ultimate right being retained: 1 Binn. 416, 6 S. & R. 240, 4 Id. 135, 16 Id. 242. Nobody now thinks of doubting the constitutionality of these laws: and the reason is that the right of trial by jury still remains.

In many of the states of the Union, the same principle has been announced, in regard to enactments for facilitating judicial business. I will cite but a few of them: Beers v. Beers, 4 Conn. 535; Colt v. Eves, 12 Id. 243; Stewart v. The Mayor and Citizens of Baltimore, 7 Mar. Rep. 500. I might very greatly extend the citation of authorities to the same point, but think it unnecessary.

The Arbitration Act of 1814 and 1836, and the various acts regulating the taking of judgments for want of affidavits of defence, are also of the same species of legislation, and have been uniformly sustained by the courts.

"Laws such as these," (the Act of 1810), it was said by Tilgh man, C. J., in Biddle v. The Commonwealth, 13 S. & R. 410, "promote justice, and leave the existence of trial by jury unimpaired and that is all that is required by the expression in the constitution, `that trial by jury shall be as heretofore.'"

It is a mistake that is often made, to suppose that every modification of its accompanying powers detracts from the right. This is too narrow and rigid a rule for the practical workings of the constitution and the rights guarantied by it in the particular in question. There is no violation of the right unless the remedy is denied, or so clogged as not conveniently to be enjoyed. But, in practice, the giving of bail, making affidavits, and entering appeals, has never been found so onerous as to amount to any serious derogation from the right. The framers of the constitution in which this right has been so sedulously guarded, undoubtedly knew and intended that legislation must provide the forms under which the right was to be enjoyed, and they meant no more than that it should be enjoyed under regulations which should not take away the right deemed necessary to order itself.

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