Curley v. Commonwealth

Chief Justice Agnew delivered the opinion of the court, The first assignment of error is not supported. The law has not provided an office for the jury commissioners, nor a place of safety for the custody of the jury wheel. Hence they did the best in their power for its custody, by making an arrangement for its safe keeping in the vault of the county treasurer, and upon the condition that no one but a jury commissioner should enter the vault for the wheel. The evidence shows satisfactorily that the wheel was sealed and the seals were unbroken, and not tampered with. There was no suspicion of any real ground of challenge, either as to the custody or the condition of the wheel. The second exception is not supported by a proper bill of exceptions. If it had been, though evidently 'without real merit in this case, we might have been forced to sustain the assignment. But the challenge to the array was made upon two distinctly stated grounds, which were [156] denied by the Commonwealth, neither having any relation to the sealing of the wheel. These grounds formed the issue upon which the evidence was taken, and to which the exception to the decision of the court must be presumed to refer. What was added, as to the sealing in the certificate of the judge, was therefore extraneous and irrelevant. The merits of the case do not require us to strain a point in order to reach a substantial error not otherwise tangible. But to prevent a misunderstanding of our opinion we may add that, in our judgment, it is not proper for the jury commissioners and sheriff to use one and the same seal, no matter how many impressions are made by it. The sheriff and jury commissioners should each have and use his own seal, so that he alone shall have its custody. If but one seal be used for all, but one person can have its custody, who, if disposed, could break the seals and replace them, thus affording an opportunity of tampering with the wheel. If each keeps his own seal this cannot be done. The third assignment of error falls with the dismissal of the first and second. The fourth and fifth relate to challenges to the polls. The case of A. K. Lorah falls within the rulings in Ortwein v. Commonwealth, 26 P. F. Smith 414; O’Mara v. Commonwealth, 25 Id. 424, and one branch of Staup v. Commonwealth, 24 Id. 458. The case of Joseph M. Yahn requires more consideration. This juror said he had formed and expressed an opinion, and that it was fixed and determined from what he had read, From this it is argued that his case falls within the principle of exclusion stated in one branch of the case of Staup, supra. This is only apparent, not real. In Staup’s case it was said that: “ Whenever the opinion of the juror has been formed upon the evidence given at a former trial, 'or has been so deliberately entertained that it has become a fixed belief of the prisoner’s guilt, it would be wrong to receive him.” “ But where the opinions or impressions of the juror are founded on rumor or reports, or even on newspaper statements, which the juror feels conscious he can dismiss; where he has no fixed belief or prejudice, and is able to say he can fairly try the prisoner on the evidence, freed from the influence of such opinions or impressions, he ought not to be excluded.” An opinion is not the exact equivalent of a belief. It may be simply a judgment formed upon a given statement of facts, which will yield when the facts stated disappear. A belief of another’s guilt may be a prejudice and exist with little or no evidence. A fixed belief of guilt shuts the door against explanatory evidence, and renders the judgment unsound. Hence the distinction taken in Staup’s case. An opinion formed on the same evidence to be adduced in the trial necessarily affects the juror’s power to decide impartially. So, an opinion which has become a fixed belief of the prisoner’s guilt, even without evidence, disables the juror from performing his duty with [157] fairness to the prisoner. But in Yahn’s case no such opinion or belief was shown. The juror was not asked on what his opinion was founded. It might have been the merest unreliable newspaper statements. When lie said his opinion was fixed and determined from what he had read, he evidently did not mean, that he had a fixed and determined belief of the prisoner’s guilt, for he followed this up immediately by, saying, “ It is not such an opinion as would influence or control me in any degree as a juror. It would not influence me to give an undue weight'to evidence against the prisoner. I feel certain, that as a juror, I could divest my mind of all prejudice and be controlled by the evidence.” Now we find here no opinion formed upon the evidence to be given, no fixed belief of guilt. We see no reason, therefore, to hold that the juror was incompetent on either ground. There is no error in the charge of the judge sufficient as a cause of reversal. His opinion as to the degree of the murder was not delivered as binding on the jury, or as a conclusion against the prisoner. It referred only to the state of facts as found upon the discovery of the body of the deceased. An elderly maiden lady, in good health, is left alone, engaged in ordinary household duties in the morning. In the evening she is found alone, lying on the floor in a pool of blood, and the objects around her are'found stained with its spurting streams. Her skull has been battered with a heavy instrument having a large square head, such as the poll of an axe or of a mason’s hammer of large size. Ten wounds are found upon her head made with such an instrument, eight of which were mortal, crushing in and fracturing the skull at every stroke. It was of such a murder the judge spoke. But the jury were left to decide for themselves upon all the evidence. The only real question in the case was the identity of the offender; and this was fixed upon the prisoner by many and various circumstances, leaving no reasonable doubt of his guilt. The judge stated the facts of the case with great fairness, except that in one instance he appears to have fallen into error. But it was left fully to the jury. The matter referred to is the description given by the prisoner of the person of the “ tramp” he alleged came to the house at dinner time. The judge said he had given five different descriptions in relating the matter to different witnesses. We do not discover this number of variations in substantial matters of description. Yet there were such variations as will often arise in stating the same thing at different times; that is, not absolute contradictions, but variations from different degrees of fulness, or from indifference to precision. These, however, were matters left to the jury, and of which they were quite competent to judge — indeed, in the combination of so many memories, perhaps were more likely to be accurate. We think this is not such a substantial error as to demand a new trial. The errors assigned to the alleged misconduct [158] of the jurors and their officer are not supported by any bill of exceptions. The evidence is therefore not legally before us. There is nothing else in the case worthy of notice. The sentence of the court is therefore affirmed, and the record is ordered to be remitted for execution according to law.