
    In the Supreme Court of Pennsylvania.
    JOSEPH BROWN v. COMMOMWEALTH OF PENNA.
    1. The court below refused to permit the grand jurors to be polled on their voir dire before the submission of the bill of indictment. Held, not to be error.
    2. Under an order for a tales de circumslantibus the sheriff may summon the tales-men from either the bystanders or the body of the county, or both. The 41st sec. of the Grim. Procedure act of March 31, i860, construed.
    3. When two persons are murdered at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the same transaction or res gestee, the death of the one and surrounding circumstances may be given in evidence upon the trial of the prisoner for the murder of the other, not as an independent crime, but as tending to show that the motive-was one and the same which led to the murder of both at the same time. Shaffner v„ Comthi distinguished.
    4. On a question of the admissibility of the confessions of a prisoner, which had' in the first instance been admitted by the court, it is not error to submit it to the jury on. the evidence to say whether any improper influence was used, and, in charging, if there-was any, that they should disregard the confession.
    Error to tlie Criminal Court of Sclmylkill county.
   Opinion delivered July 2, 1874, by

Agnew, ,C. J.

On the night of the 25th of February, 1872, Daniel M. Kraemer, a farmer of reputed wealth, aged about sixty years, and hus-wife were murdered on his farm in Washington township, Schuylkill county. She was found on the next morning lying across her bed insensible and partially undressed, but afterwards became conscious and able to state some of the circumstances of that night, and died on the 4th of March following. Her son, living away from home, who first found her,, ran to give the alarm, and on his way discovered the dead body of his-father lying at a distance from the house of about three hundred yards. Near him was found a heavy oak club covered with blood and hair. The wounds on the head of both husband and wife were such as this weapon would probably make, and were of a fatal character. The chest, bureau, and desk in the house had been broken open, and evidence that the perpetrator of the murders had been in pursuit of plunder. The only inmate-of the house beside Mr. and Mrs. Kraemer, was her mother, a lady so old, deaf, blind and helpless that she could furnish no information. All the-circumstances evidenced that the murders and the search for money, were-contemporaneous and part of the transaction.

The prisoner has been twice tried and convicted. The first conviction for the murder of Daniel Kraemer, was reversed for errors more technical than substantial. The second conviction was for the murder of Mrs. Annetta Kraemer, and this is the record before us. Under these circumstances, before reversing a second time, a court should feel satsified a substantial error has been committed. Of the forty-six assignments of error, only a few present questions of substance. Many are unsubstantial, others. are technical, and some are unsupported by the requisite evidence. We shall notice those only we think deserving, and shall group many of them together.

The first subject of remark are the objections to the jurors. In Dyott v. Comth., 5 Wharton 67, it was held that after a prisoner stands mute, •a plea of not guilty is entered for him and he participates in the trial and is convicted, the case falls within the provisions of the act of 21st February, 18x4, enacting that a trial on the merits, or pleading guilty on the general issue, shall be a waiver of all errors and defects or appertaining to the precept venire, drawing, summoning and returning of the jurors. This decision resulted from the language of the act of 23d September, 1791, relating to prisoners standing mute or challenging peremptorily more than the allowable number of jurors, that the trial shall proceed in the same ■manner as if the prisoner had pleaded not guilty, and put himself for trial •on the country. We do not think this decision is applicable to a case where the prisoner makes his objections at first to the panel of jurors, and on their being overruled, takes a proper bill of exceptions; but the decision is strongly illustrative of the unwillingness of courts to sustain objections to the jury, grand or petit, after a full and fair trial on the merits. It is therefore sufficient to say as to the first and eighth assignments of error to the refusal of the court to quash the array of the grand and the petit jurors, that the objections of the prisoner were squarely traversed by ■the commonwealth by plea, while the bill of exceptions contains no •evidence of their truth. We must presume the court had sufficient ground ■to refuse the challenge.

The second, third, fourth, and fifth errors raise the single question, ■whether, upon a challenge to the polls of grand jurors, the prisoner will be permitted to examine them on their voir dire to support his objections. 'The court was willing to receive other proof. As to petit jurors, who try the prisoner, and therefore should be above all exception, the rule is to permit them to be examined on their voir dire to prove objections to their competency. But the reason does not hold good as to the grand jurors, who do not try the prisoner, but merely enquire on the evidence of the • commonwealth alone, whether there is sufficient probable ground of the commission of the offence charged in the indictment laid before them. It would be impossible to conduct the business of the courts of quarter .sessions and oyer and terminer, if every person indicted for an offence ■ could claim the right of polling the grand jurors on their voir dire in order to purge the panel. Indictments for murder may be found in the quarter .sessions and certified into the oyer and terminer. A due regard for pub■lic policy, as well as for the interests of justice and the nature of the inquiry forbids that grand jurors should be polled and tried in this manner. .If the prisoner have evidence to purge the panel let him produce it. Sixth .assignment. — That a bill of indictment may be sent up to the grand jury by the attorney general, or was, by the district attorney, with the sanction of the court, is shown in McCollough v. Comth., 17 P. F. Smith 30 It does not appear that the bill before us was sent up surreptitiously. Tenth assignment. — The 41st section of the criminal proceedure act of March 31, i860, is a summary (say the codifiers) of the 144th, 145th, 146th,, 147th, and 148th sections of the act of 14th April, 1834, which are left unrepealed. 1 Brightly, note C., p. 385. The venire awarded under 147th section, makes no distinction between the bystander and persons-in the county at large. Nor does the 41st section of the act of i860 make a discrimination. There is no ground therefore to support a distinction,, and ir certainly infringes no rule of right or of policy to hold that under an order of talesmen, the venire must issue generally and not specially to-summon the bystanders only, or specially for persons from the body of the-county only. Under the criminal proceedure act, the sheriff may summon the talesmen from either or both. The expression, tales de circumstantibus,. was evidently intended to include both.

The 14th and 15th assignments relate to the evidence of finding the-body of Daniel M. Kraemer three hundred yards from the house; the-condition of the chest, bureau and desk, and the fact that a large sum in silver and gold was known to the prisoner to be in the house. That the commission of a distinct offence, even similar in character, cannot be. given in evidence against the prisoner, was held in Shaffner v. Comth.,, decided at Harrisburg in 1873. But when two persons are murdered at the same time and place, and under circumstances evidencing that botín acts were committed by the same person or persons, and were part of one- and the same transaction or res gestee, and tend to throw light on the-motive and manner of the murder for which the prisoner is indicted, the-case is different. Such was the case here. The club found near to the* husband, being the probable instrument of the death of the wife also, and! the motive, to wit, robbery, being one and the same, which led to the.murder of both at the same time. Being parts of the same res gestae they,, together, tend to throw light on each other, and there is no reasom that the truth should be thrown out by excluding the evidence objected! to. The 16th, 18th, 19th, 21st, 22d, 24th, 25th, 26th, and 34th\ assignments relate to the same' subject. When we consider that! Kraemer was a farmer living in the country remote from a place of safe-deposit, and was unused to the ways of men living in town ; that it was ai period of suspension of specie payments, when silver and gold seek hiding: places in the chests, drawers, and desks of such men as he, and often remain hidden for years, we cannot say the time when he and his wife received the coin was too remote, and its possession on the night of the-murder impossible. The prisoner was the son of a neighboring farmer,, and was without means of his own. This possession of coin and exchanging it for paper money and purchase of clothing, on the next day, at Pottsville, were significant circumstances, while the evidence of his identity as the person exchanging the coin in Pottsville might require the testimony of many witnesses and many circumstances, to make the proof complete. We discover bo error in these assignments.

23d Assignment. The fact that a witness was examined in a certain prosecution, is a matter independent of the record. He may state that fact as inducement, without producing the record : when the purpose is merely to prove the identity of the person then on trial. The most important question which arose in the trial was that to which the 28th, 29th, and 30th assignments relate, to wit, the admissibility of the so-called confessions of the prisoner to John J. Kaercher. But we meet an insurmountable obstacle to its decision in the fact that the testimony of Kaer-cher, and of the witnesses called to show the influence used to obtain the confessions, has not been made a part of the bills of exception.

Without the whole of the testimony of these witnesses before us to enable us to sift it and discover the nature and extent of the influence used, it would be very unsafe to say the judge erred in admitting the confessions. We cannot say that he subsequently erred in submitting it to the jury on the evidence, to say whether any improper influence was used, and in charging them, if there were any, that they should disregard the confessions. This did the prisoner no harm, and might, if true, have availed him much. It is proper, also, to add that the disclosures drawn from the prisoner were rather deductions of certain specific facts than confessions of guilt. It is true that these facts were links in the chain of circumstances to convict the prisoner, and therefore his admissions were to be strictly guarded against any improper influence used to obtain them, but they stand lower in the degree of evidence than actual confessions of guilt. A damaging fact may be admitted without any intention to confess guilt. •

The 31st, 32d and 33d assignments relate to the testimony of Joseph Trumbo, who was permitted to testify to conversations with the prisoner through the soil pipes of the prison. Whether the voice of the prisoner could be recognized by Trumbo through these pipes, and what weight would be given to testimony, were matters within the province of the jury.

If the offer of such evidence had'come from the prisoner, it would have been an error to reject it. E converso it was not error to receive it on part of the commonwealth.

Speaking-tubes-are used in all large hotels and business houses, and it would be going too far to say, as a matter of judicial knowledge, that the voices of those speaking through them cannot be distinguished. The 35th, 36th and 37th assignments are defective, in that the evidence is not made a part of the bills of exception.

The offers of evidence distinctly state that the dying declarations of Mrs. Annetta Kraemer were made when she was fully conscious of her ■approaching death. In the absence of evidence to prove the fact to be otherwise, we must presume that the evidence of her consciousness of approaching dissolution, was sufficient as well as satisfactory to the court.

The whole charge is assigned for error. There seems to be no good reason for this. We discover nothing erroneous in the portion commented upon in-the argument. The indictment consisted of a single count for murder, and the court told the jury that under it they might either acquit or find the prisoner guilty of murder in the first or second degree, and they should find the degree of murder in their verdict.

The complaint against this part of the charge is, that the court did not instruct the jury that there might be a conviction of manslaughter under the count for murder. The court was not asked to give any instruction on the subject of manslaughter, and for the very good reason that nothing appeared in»the evidence on the part of the commonwealth or of the prisoner, to reduce the homicide to manslaughter. It was a question whether the prisoner was the guilty one who took the lives of this aged couple; but there was no question that the homicide was a foul and devilish murder committed for the purpose of robbery. It was no substantial injury to the prisoner therefore to omit to instruct the jury that, as an abstract principle of law under a count for murder, there may be a conviction of manslaughter.

The other assignments of error need not be noticed. We discover no error in the record, and the sentence and judgment of the criminal court is therefore affirmed, and the record ordered to be remitted for execution.  