Williams v. Commonwealth

• Decision Date: 05 January 1880
• Citation: 91 Pa. 493
• Parties: Williams <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

91 Pa. 493

Williams versus Commonwealth.

Supreme Court of Pennsylvania.

October 30, 1879.

January 5, 1880.

October 30th 1879.

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

Error to the Court of Quarter Sessions, of Armstrong county: Of October and November Term 1879, No. 65.

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J. H. McCain, F. Mechling and J. Gilpin, for plaintiff in error.—The Commonwealth cannot challenge a grand juror in any other manner than a private person, and the defendant cannot examine grand jurors on their voir dire as to the alleged cause of challenge. The jurors should have been taken from the jury-wheel and not selected by the elisors. The evil of such a course is manifest in this case, where the elisors went to a hotel, which was the Democratic headquarters, and from the registry of the hotel and those standing around selected the panel.

The defendant, Williams, could get from the indictment not a scintilla of information as to what act or words, done or uttered (during the campaign two years previously), the Commonwealth complained of. No person's name, save that of himself and of the recorder before whom he was sworn, is mentioned in the indictment from its caption to the signature of the district attorney. It nowhere states what he paid or gave, promised to pay or give, whether money, chattels, lands or appointments, or how the election laws or the constitution was violated.

In the construction given to art. 7 of the constitution and to the Act of 18th April 1874, which was passed to enforce it, it did not fully state the construction contended for by the defendant's counsel, which was and is, that said article and act were intended to prevent a candidate from purchasing with money, promises or contribution, either the votes of electors from the electors themselves; as, for instance, going to one and offering or paying him so much money to vote for the candidate, or the control of votes; that is influence; as for instance, the candidate going to the officers of a political club and paying to them money in consideration of the club and its members voting for him, or going to the officers of a railroad company or other corporation, and in consideration of their compelling their employees, by threats of discharge or otherwise, to vote for him, paying money to said officers, or promising to procure benefits (e. g. beneficial legislation) for the corporation; or going to a manufacturer and paying him money to induce him to use his power, as master over his employees, to induce or compel them to vote for him (the candidate). And that neither the article nor the act was intended to prevent a candidate, say for governor, residing in Philadelphia, and perhaps not personally known in the oil country, who learns that damaging and slanderous reports are being circulated about him in the oil district, which will defeat him unless refuted, and which he can only refute by sending his friend, in whom the oil people have confidence, to personally refute and contradict the stories, from sending such friend, and if necessary, paying him for the time lost, and expenses incurred in going, delaying and returning.

A suitor in a court of justice is allowed to pay an advocate to electioneer for him (e. g. use arts, for Gorgias demonstrates that rhetoric is an art) with a jury sworn in the cause. The words for dissemination of information to the public, not dissemination of public information used in the Act of 18th April 1874, were doubtless intended to have some meaning.

Where there are several assignments of perjury in addition to the testimony of a single witness there must be corroborative proof with respect to each: Greenleaf on Evidence, sect. 257.

J. R. Henderson, District-Attorney, for defendant in error.— This is the first indictment under the constitution of 1874, in reference to elections, and demands the most serious attention of the court.

Mr. Justice TRUNKEY delivered the opinion of the court, January 5th 1880.

When the case was called for trial, the court sustained a challenge to the array of jurors made by the Commonwealth, and ordered a venire for twenty-four traverse jurors to be immediately summoned from the bystanders, or from the body of the county at large; and to this action the defendant excepted. In obedience to said order, return was made forthwith, and the cause called for trial, against the defendant's objection. No argument has been made in support of this unusual, if not unprecedented procedure, other than a reference to the opinion of the court, which rests it on the Act of April 14th 1834, sects. 146, 147, Pamph. L. 367. These sections refer to civil cases; the former providing that when a challenge to the array of jurors shall be made by either party to a cause, and sustained by the court, so that there shall be no jury present legally qualified to try the same, the court shall have power, at the instance of either party, to award a venire returnable forthwith for the trial thereof; and the latter, that every such venire shall be directed to the sheriff or coroner, or if the case so require, to two elisors, and shall require him or them to summon and return forthwith twenty-four good and lawful men to be jurors in such case, and upon return thereof the trial shall proceed. Section 148 provides that a court having jurisdiction of any criminal cause, shall "have the like power, whenever a challenge to the array shall be made by the defendant and sustained by such court, so that no jury shall be present legally qualified to try such cause." It is plain that the provisions of these sections do not apply in a criminal case where the challenge is made by the Commonwealth. The first two apply when either party to a civil cause makes the challenge; the last gives like power to courts having jurisdiction of criminal cases, when a defendant's challenge is sustained. Familiar rules of interpretation forbid extending the last to a case not named therein. Probably the legislature thought there was good reason for not allowing a public prosecutor to come into court, challenge the array of jurors, and immediately force a prisoner to trial before those selected in absence of all statutory safeguards against packing the jury. It is public policy to prevent delays in trials by trivial objections to the jury, and it may have been believed in the interest of justice to permit a defendant's challenge to be followed by trial as in civil cases. He takes that risk in making the challenge; yet, I apprehend, few district-attorneys or judges would refuse a continuance until a regular jury could be obtained, if the challenge were not merely for delay, but for meritorious cause.

By section 41 of the Criminal Procedure Act of 1860, it is enacted that "all courts of criminal jurisdiction of this Commonwealth shall be and are hereby authorized and required, when occasion shall render the same necessary, to order a tales de circumstantibus, either for the grand or petit jury. This is a summary of much contained in the sections referred to above of the Act of 1834, including also section 145 of said act; but those sections are not repealed. By itself, the summary authorizes the calling of talesmen in no case when a venire has not been issued and returned with a panel of jurors present. A tales, by its very name, signifies a returning of so many as will make up the full complement; and, therefore, it is not granted where there is a total default, but only where the number is deficient: 1 Chit. Cr. L. 518. The first process for convening the jury is the venire facias, and thereupon then issue the habeas corpora and distringas juratores. If all the jury do not attend, or if so many be challenged and drawn that there do not remain a sufficient number to make a jury, there are at common law the writs of undecim, decem, or octo tales, according as the number was deficient, or by statute, the plaintiff may pray a tales de circumstantibus to prevent the...