Commonwealth ex rel. Fletcher v. Cavell

Dissenting Opinion by

Mb. Justice Musmanno :

James Morris Fletcher, the petitioner for a writ of habeas corpus in this case, was convicted in Greene County, of murder in the first degree and sentenced to life imprisonment, which he is now serving in the Western State Penitentiary. Although his conviction was affirmed by this Court in Commonwealth v. Fletcher, 387 Pa. 602 , he has applied for relief on the ground that two of the jurors who convicted him did not wear that robe of impartiality which is assured under our system of trial by jury. One of them (juror No. 1) was a son-in-law of the county detective who conducted the investigation in the case for the Com *145 monwealth, and the other juror (No. 7) was related to Gerald Tanner, the victim of the homicide.

This Court is denying the petition because it says that (1) a petition for a writ of habeas corpus may not be used as a substitute for an appeal for the review of alleged trial errors, and (2), the presence of the two alleged partial jurors did not deprive the defendant of due process of law.

I take a different view. It seems to me that if I, as a spectator, stepped into a courtroom where a murder trial was in progress and I was informed that the foreman of the jury was a son-in-law of the county detective, who perhaps was the person most interested in getting a conviction since it was upon his investigation that the prosecution was based; and I was further informed that juror No. 7 was related to the person who was killed by a shotgun allegedly fired by the defendant, I would first rub my eyes in astonishment and then I would wonder what has happened to our vaunted impartial trial by jury which we like to apostrophize in speeches at bar association conventions and at banquets offered to legal luminaries. I would also wonder, with two such interested persons on the jury, what has happened to the pristine neutrality that we always ascribe to an Anglo-Saxon jury. And if I allowed my fancies to roam I would painfully recall that in primitive times the relatives of a deceased victim were the ones who would pass judgment on the type of punishment which was to be meted out to the assumed slayer.

It seems like carrying coals to Newcastle or transporting spaghetti to Naples to say that a juror should never have a personal reason, apart from the evidence in the case, to desire a verdict for one side or the other. While much alleged levity and rather feeble attempts at humor are directed toward the family “in-law” re *146 lationship, I believe that it can be stated as a fact that in the usual American family the son-in-law cherishes great respect, mingled with affection, for the father of his wife. Certainly he would have more reason to see his father-in-law triumph in a controversy than a total stranger. I am not saying that the son-in-law here, the foreman of the jury, was influenced by his marital relationship to the detective-prosecutor to the extent that he overlooked evidence favoring the defendant and emphasized the evidence supporting the prosecution. I am not saying that, but at the same time I am also not saying that he was not so influenced. And if there existed only the probability that he could have been so influenced, the defendant was unquestionably denied a fair trial.

Nor can it be argued that a case cannot be decided on probabilities. That is exactly what it is decided on. If it had developed that the foreman of the jury was the son of the prosecutor this Court would have no hesitancy in saying that in all probability a son would favor his father over a defendant and would grant immediate relief to the defendant, summarily dismissing any argument that the son could have been so honest and so conscientious that he would have ignored filial attachment and decided the case on merit alone.

The other alleged partial juror (No. 7), a Mrs. Nellie Barnhart, was, as I view it, even more disqualified than the foreman. She was related by blood to Gerald Tanner, whose blood, it was charged, was spilled by the defendant. The Majority Opinion derogates the degree of relationship between Mrs. Barn-hart and Gerald Tanner by saying that it was too remote and that the two people “lived twenty-five miles apart; and that they had never visited each other.” Relatives may indeed live miles apart (in this case the distance was 25 miles), but such distance is wiped away *147 when they experience a common emotional experience, whether it be one of happiness or of sorrow.

Nor can one overlook the human trait of self-aggrandizement through geographical or eventful propinquity. It is one of the weaknesses of human nature, especially where one is not educated enough to withstand the urge, to identify oneself with events and personalities which have momentarily or permanently aroused the interest of the community, state, nation, or world. If a glorious event unfolds, if a fire sweeps a block, if disaster hits a city, if a spectacular crime bursts on a community, everyone in the vicinity will consider himself a part of the happening and manage somehow to vicariously participate in the event and to heroize himself, at least to the extent of making himself a subject of enviable interest because fate has placed him in the very center of history. Who could deny to every person who lived in or near Runnymede, Waterloo, Johnstown, Appomattox or Gettysburg the right to feel himself a part of the world-shaking events which have made those towns immortal on history’s page? If mere geographical affinity makes one an integral part of an event over which he has had no control, how much more would consanguinity make one part of a tragedy occurring on the family tree of which he is a living component, even if only an outspreading twig or leaf? Mrs. Barnhart was a second cousin (once removed) of the murdered Gerald Tanner but it is no empty phrase to say that blood is thicker than water.

The relationship between Mrs. Barnhart and Gerald Tanner was not ascertained until after she had been sworn, and her brother, Scott Marshall, was also called as a juror. The Commonwealth rejected Marshall for cause, but Mrs. Barnhart was allowed to remain as a juror,

*148 The Majority Opinion says that Mrs. Barnhart and Gerald Tanner never visited each other, but this does not exclude that they knew each other and had met. This does not exclude that they had a high regard for each other as relatives. This does not exclude that Mrs. Barnhart resented and felt a revulsion against the person who was charged with slaying her second cousin, once removed, by lying in wait and blasting him into eternity.

It is my considered opinion that a person on trial for his life does not get a fair trial when it is established that the foreman of the jury trying him has a family reason to see him convicted, and that another juror may have a consanguineal axe to grind.

The Majority Opinion says that when this Court considered the case on appeal, the Court said: “Since defendant made no objection to the Court’s failure to discharge these jurors until after the jurors had been sworn, the verdict cannot be challenged because of any juror’s disqualification.” It may be that at that time the facts were not as clear as they are now. In any event, if we erred then, there is no reason to repeat the error. It cannot, and should not, be said that there comes a time when a verdict cannot be challenged because of a juror’s disqualification. It is admitted that the defendant did not know of the disqualifications in question when he was questioning the involved jurors on their voir dire, and he at once challenged for cause when he did learn of their interest.

The Majority Opinion cites the case of Traviss v. Commonwealth, 106 Pa. 597, 607 , to the effect that “The time to challenge is before the juror is sworn; if not exercised then, the right is waived.” But in the Traviss case the involved juror was “absolutely ignorant of any relationship [between him and the deceased victim] until several days after the verdict was *149 rendered.” In the case at bar no such ignorance of relationship was averred or established. Moreover, the jury had not been collectively sworn when the motion for the challenge was made as to jurors Nos. 1 and 7. In Alexander v. The Commonwealth, 105 Pa. 1, 9 , this Court said: “The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is impaneled and sworn.” In Commonwealth v. Almeida, 362 Pa. 596, 638 , we said: “A jury does not come into being until it is completely selected and sworn.”

But, over and above all this, what difference does it make when the objection to a juror’s disqualification is made if, in fact, he is, disqualified? I don’t think that if it developed that a juror had suddenly become deaf after being sworn and had then sat in on a trial for a week without hearing a word of testimony, that anyone would seriously contend that it was too late to complain about his deafness before or after verdict because he had been sworn before objection was made. The test should be whether or not the juror is really qualified, not when it is learned that he is disqualified. The cook who discovers, after he has cooked a dinner, that, by mistake, he used lye instead of flour, would not, or should not, insist on serving the meal merely because it would be too much trouble to re-cook it. Whatever is wrong is wrong until it is corrected. And if it is not corrected, it will remain wrong until the slate of life is wiped clean on the Great Day of Final J udgment.

In declaring that the writ of habeas corpus cannot be used to correct a trial error, the Majority Opinion says: “In the time-honored decision in Passmore Williamson’s Case, 26 Pa. 9, 17 , Pennsylvania’s eminent jurist, Honorable Jeremiah S. Black, in discussing the purpose of the writ of habeas corpus, enunciated *150 the following presently significant utterance: ‘A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment even of a subordinate state court cannot be disregarded, reversed, or set aside, however, clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong.’ ”

I will gladly bow to the wisdom and genius of Justice Jeremiah Black, I will spare no eulogy in praising his juristic qualities, and I will step aside for no one in pronouncing him as one of the brightest adornments of the Pennsylvania judiciary for all time, but I cannot go as far as the Majority goes in intimating that when we come across a statement by Justice Black in the dusty tomes of the Supreme Court we must abdicate our own judgment, stifle our own independent observations, and say that once Justice Black has spoken there can be no room for disagreement.

I aver that here there is room for disagreement. Justice Black said that on a habeas corpus a judgment cannot be set aside, “however clearly we may perceive it to be erroneous.” My concept of the obligation of a Supreme Court justice does not permit me to affirm anything that I perceive “to be erroneous.” I believe, moreover, that we are derelict in our duty if we refuse to reverse a judgment “however plain it may be that we ought to reverse it if it were before us on appeal or writ of error.” What does it matter how the question is before us, if we see the need for correction, especially when, in the present condition of the case, habeas corpus is the only avenue left open to the *151 defendant to reach this Court? We have authority under the powers of the King’s Bench to see that justice is done, and when a man is immured in the penitentiary for life on a verdict rendered by a jury, two members of which wore beneath their robes of supposed impartiality the badge of partiality, it is our function to reverse and not to say that “we can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong.” A Court has no right to close its eyes to what is wrong. And this Court, in view of its pronouncement in Commonwealth v. Onda, 376 Pa. 405, 408 , should be es-topped from ever declaring that its library shelves are devoid of books authorizing it to act in any case where justice demands action. In that case, this Court said: “More than two centuries ago section XIII of the Act creating the Supreme Court of this Commonwealth (Act of May 22, 1722, 1 Sm. L. 131) provided that the court should 'minister justice to all persons, and exercise the jurisdiction and powers hereby granted, concerning all and singular the premises according to law, as fully and amply, to all intents and purposes whatsoever, as the Justices of the Court of King’s Bench, Common Pleas, and Exchequer, at Westminister, or any of them, may or can do.”

Moreover, we must consider that the statement of Justice Black, on which this Court relies today, was made in the year 1855. Much has happened during the last one hundred years and we cannot ignore the truism that the standards of frontier days do not always apply to the demands of a modern, complex age. Conditions alter with the passing of the years, sociological change is always with us. We no longer say that the king can do no wrong; we no longer say that a human being can be considered property (a premise accepted in the Wüliamson case); we no longer say *152 that under no circumstances may the Commonwealth be sued; we no longer say that a county, city, or other state subdivision cannot be held liable in tort; we no longer say that the defendant in a criminal case may not testify in his behalf because it must be assumed that he would pervert the truth to his own interest. It is certainly not a shockingly original thought to declare that times change and that the law changes with the change. It may be that the times had begun to change on the very subject under consideration when Justice Black wrote the opinion which this Court accepts as inviolable, for the illustrious Justice Knox dissented from the views held by Justice Black.

But all this is academic and perhaps of historical interest alone, since the highest Court in the land has declared that where justice requires it, habeas corpus may be employed to ascertain and insure the rights of an accused. In the case of Johnson v. Zerbst, 304 U. S. 458, 466 , the petitioner Johnson was tried and convicted in a Federal Court on the charge of counterfeiting. While serving his prison sentence, he applied for a writ of habeas corpus alleging his sentence to be illegal because he was not given, in accordance with the Sixth Amendment, the assistance of counsel at his trial. The District Court denied the writ holding that the proceedings depriving petitioner of his constitutional right to assistance of counsel were not sufficient “to make the trial void and justify its annulment in a habeas corpus proceeding, but that they constituted trial errors or irregularities which could only be corrected on appeal.” The Circuit Court of Appeals affirmed, but the Supreme Court of the United States reversed, declaring in translucent and unmistakable language that: “True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities —not involving the question of jurisdiction — occur *153 ring during the course of trial; and the ‘writ of habeas corpus cannot be used as writ of error’. These principles, however, must be construed and applied so as to preserve — not destroy — constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened — not narrowed —since the adoption of the Sixth Amendment. In such a proceeding, ‘it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court’ and the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record.’ ”

This decision was quoted with approval by the Superior Court in the case of Com. ex rel. Schultz v. Smith, 139 Pa. Superior Ct. 357, 363 . I believe we should be similarly guided.

I dissent.