
    In the Supreme Court of Pennsylvania. EASTERN DISTRICT.
    JOSEPH BROWN v. THE COMMONWEALTH OF PENN’A.
    The criminal court of Schuylkill county was right in overruling a plea to its jurisdiction. Commonwealth v. Green, 8 P. F. S., 226, and Commonwealth v. Hippie, 19 ib. 9, reaffirmed. .
    Counsel’s notes of testimony of C. E., a deceased witness, taken before a committing magistrate, at a preliminary hearing, at which hearing defendant and his counsel were present, were offered in evidence by the commonwealth, objected to by defendant and admitted by the court.
    
      Held — There was no error in the admission of the testimony.
    Defendant was indicted for the murder of a man and his wife in two separate bills. On the trial of the defendant on the indictment charging him with the murder of the man, it was error to admit the dying declarations of the woman. The general rule is that dying declarations are admissible only, when the indictment is for the murder of the party making the declarations.
    Where it appeared on a challenge to the array of grand and petit jurors, that the jury-wheel from which they were drawn, had not been properly secured, i. e., not sealed with the respective seals of the two jury commissioners and the sheriff, as required by the act of 14th April, 1834, the array should have been set aside, and the indictment quashed.
    "Writ of Error to the Criminal Court of Schuylkill County.
   Opinion of the court, delivered April 5th, 1873, by

Read, C. J.

This is a writ of error to the criminal court of Schuylkill county, sued out under the act of the 15th February, 1870, upon the oath of the defendant, and brings up the whole record.

The constitutionality and jurisdiction of this court has been finally settled in Commonwealth v. Green, 8 P. F., Smith 226, and in Commonwealth v. Hipple, 19 Ib. 9, and its concurrent jurisdiction with the courts of quarter sessions of the peace and oyer and terminer and general jail delivery of the county of Schuylkill, is fully recognized and established by the act of the 22d of April, 1870; P.L. 1254, and the court below were therefore right in overruling the plea to the jurisdiction entered by the defendant.

On the preliminary hearing'before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant’s counsel, and the witness having died before the trial, the notes of his evidence proved by the counsel under oath, were offered in evidence, objected to, and admitted. It was objected that by the constitution of the state the defendant was entitled to meet the witness face to face.

The doctrine on this subject is thus laid down in the third volume of Bussell on Crimes, by Greaves, fourth edition, 1865, page 249: “If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness given upon oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give evidence,” and the same is repeated at page 424 in the note. We find the same rule in Phillips & Arnold’s Evidence, p. 306-7, and in x Pitt Taylor on Evidence, fourth edition, 1864, pages 445, 447. Dr. Wharton on his valuable treatise on criminal law in the United States, volume x, page 667, says :

“The testimony of a deceased witness given at a former trial, on examination may be proved at a subsequent trial by persons who heard him testify. Even the notes of counsel of the testimony of such witness on a former trial between the same parties touching the same subject matter, are evidence when proved to be correet in substance, although the counsel does not recollect the testimony independent' of his notes. The better opinion seems to be that it is sufficient to prove the substance of what the deceased witness said, provided the material particulars are stated. Though it has been sometimes held that unless the precise words could be given, the testimony would be rejected.

In tine Commonwealth v. Richards, 18 Pickering 434, it was held that the 12th article of the declaration of rights, which provides that in criminal cases, the accused shall have the right “to meet the witnesses against him face to face,” is not violated by the admission of testimony in a criminal trial before a jury to prove what a deceased witness testified at a preliminary examination of the accused, before a justice of the peace.

This case was affirmed seven years afterwards in Warren v. Nichols, in 6 Metcalf 261, and the further ruling in that case, “ that the whole testimony of the deceased witness upon the point in question, and the precise words used by him, must be proved,” was substantially affirmed. Hubbard, Justice, dissented from this ruling, and assigned very cogent reasons against it. As the decision now stands, says this able judge, it prescribes .a rule for the admission of testimony, which the imperfection of our nature in the construction of our memories will not warrant. It in truth, excludes the thing it proposes to admit, and at the same time opens a door for 'knaves to enter where honest men cannot approach. Other learned judges .have maintained that a rule so rigid was unwise, and I confess I prefer the ■reasoning of Gibson, J., in the case of Connell v. Green, 10 S. & R. 16, to that of the learned judge in Commonwealth ¶. Richards, and with him agrees also the learned author of the treatise on the law of evidence. 1 Greenleaf § 165.

Upon this subject, the ablest discussion of the whole question is to be found in the opinion of Judge Drummond, in the U. S. v. Macomb, 5 McLean’s rep. 286, delivered in the circuit court of the United States for the district of Illinois, at July term, 1851, at the preliminary examination, a witness since deceased, testified in relation to the offence, which was robbing the mail, the accused was present, and his counsel cross-examined the witness. Witnesses were permitted on a trial before a jury, under an indictment found for the same offence, to prove what the deceased witness testified to at the preliminary examination. It is sufficient in such case, to prove substantially all that the deceased witness testified,' upon the particular subject of inquiry. A decision upon the same point is to be found in U. S. v. White, 5 Cranch’s circuit court reports, page 460.

The 6th article of the amendments to the constitution of the United States provides, that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him.

The constitution of Pennsylvania of 1776 provided, “that in all prosecutions for a criminal offence, a man hath a right to be confronted with the witnesses. The declaration of rights in the constitution of 1790, changed the phraseology from’confronting, to “to meet the witnesses face to face.”

The doctrine enunciated by Judge Drummond in 1851, was followed by the supreme court of Missouri, after a very exhaustive argument on the constitutional question, in the State v. McO’Blenis, in 24 Missouri (3 Jones) 402; and the State v. Baker, ib. 437, in 1857; and in the State v. Houser, 26 Missouri (5 Jones) 431, in 1858; and by the supreme court of Ohio in Summons v. The State, in 50 Ohio (N. S.) 325, in 1856.

In this state, the most liberal rule has been adopted in relation to the evidence of what was testified to by a deceased witness on a former trial or examination, as will be seen by referring to Cornell v. Green, 10 Serg. & Rawle 14; Chess v. Chess, 17 ib. 409; Moore v. Pearson, 6 Watts & Serg. 50; Rhine v. Robinson, 3 Casey 30; in which case C. J. Lewis said : “ The notes of counsel showing what a deceased witness testified to on a former trial between the same parties, touching the same subject matter, are evidence, when proved to be correct in substance, although the counsel did not recollect the testimony independent of his notes, and although he did not recollect the cross-examination.” To which may be added the decision in the Phila. & Reading R. R. v. Spearen, 11 Wright 306, the opinion being delivered by my brother Agnew.

There was, therefore, no error in the court admitting the notes o Mr. Farquhar, of the testimony of Ewing, a deceased witness, in the exam ination before the committing magistrate, or the notes of any other counsel, or those of the committing magistrate himself.

“Upon the trial of any indictment for murder or voluntary manslaughter, it shall and may be lawful for the defendant or defendants to except to any decision of the court upon any point of evidence or law, which exception shall be noted by the court, and filed of record, as in civil cases; and a writ of error to the supreme court may be taken by the defendant or defendants, after conviction and sentence.” “ If during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion upon any point submitted and stated in writing; it shall be the duty of the court to answer the same fully, and file the point and answer with the records of the case.” Criminal procedure act of March 31, 1860, sections 57 and 58, P. L. 444.

Under this head is ranged the reception under objection, of the dying declaration of Mrs. Kraemer, the wife of the murdered man. “ The dying declaration of a person who expects to' die, respecting the circumstances under which he received a mortal injury, are constantly admitted in criminal prosecutions, where the death is the subject of criminal inquiry, though the prosecution be for manslaughter, though the accused was not present when they were made, and had no opportunity for cross-examination and against or in favor of the party charged with the death. ’ ’ “When every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating the most impressive of sanctions.” 1 Wharton’s Criminal Law, § 669; 3 Russell by Greaves 250; 1 Greenleaf, § 156, 162, 346; 2 Taylor on evidence; 616.

“The constitutional provision,” says Dr. Wharton, “that the accused shall be confronted by the witnesses against him, does not abrogate the coinmon law principle, that the declarations in extremis of the murdered person in such cases are admissible in evidence.” Ibid.

In Woodsides v. The State, 2 Howard, Mississippi Reports, p. 655. The court at page 655, in answer to the constitutional objection that the prisoner had a right to be confronted with the witness against him, say: “But it is upon the ground alone, that the murdered individual is not a witness, that his declarations made in extremis can be offered in evidence upon the trial of the accused. If he were, or could be a witness, his declaration upon the clearest principle would be inadmissible. His declarations are regarded as facts or circumstances connected with the murder, which when they are established by oral testimony, the law has declared to be evidence. It is the individual who swears to the statements of the deceased, that is the witness, not the deceased.”

In Anthony v. The State of Tennessee, 1 Meiggs 277, the court ay upon the first ground of objection, we are all of opinion that the bill of rights cannot be construed to prevent declarations properly made in articulo mortis from being given in evidence against defendants in cases of homicides.”

The same doctrine is to be found in The State of Iowa v. Nash, 7, Iowa, 347; and in Robbins v. State of Ohio, 8 Ohio St. R. 6 (N. S.) 131; Com. v. Casey, 11 Cushing 417, and very directly in Com. v. Casey, 12 Cushing 246. There are also .various statements to the same effect in most of the decisions cited above in 'relation to the admission of evidence of the testimony of a deceased witness.

All these cases .are confined to the dying declarations of the murdered person upon the trial of the individual accused of the murder. At the York assizes on the 17th July, 1837, in Pierce v. Baker, 2 Moody & Robinson 53, it was held on an indictment against a prisoner for the murder of A. by poison, which was also taken by B., who died in consequence, that B.’s dying declarations were admissible. Coliman, J., after consulting Parke B., expressed himself of opinion that as it was all one transaction, the declarations were admissible, and accordingly allowed them to go to the jury; but he said he would reserve the point for the opinion of the judges. The prisoner was acquitted. This case is entitled to greater weight as Baron Parke, the year before, in Shobart v. Dryden, 1 Mason & Welsby 615, had been considering the question o'f dying declarations after full argument, and delivered the opinion of the court. This case is mentioned in 1 Phillips & Arnold, 243 in 3 Russell 268, 1 Taylor on Evidence 618.

In The State v. Terrell, 12 Richardson, S. C. Law Reports, 321, it was held 'that upon the trial of an indictment for the murder of A. by poison, which was taken at the same time by B. and C., both of whom as well as A. died from its effects, the dying declarations of B. are admissible against the prisoner, although the general rule seems to be that dying declarations are admissible only where the indictment is for the murder of the party making the declarations. The murder was effected by putting strychnine in a bottle of whisky, administered by the defendant at the same time to three persons, and caused the deaths of the grandfather and uncle of the prisoner, and of a third person, whose dying declarations were received in evidence upon the trial of the accused for the murder of his grandfather.

Upon the authority of these cases the learned judge admitted the dying declarations of the wife upon the trial of the defendant for the murder of her husband. In this there was "error, for the husband was found dead on Monday morning, 26th February, 1872, 300 yards from his dwelling, and his wife was discovered on the same morning lying across her bed in the house in an insensible condition, and with her face and head terribly beaten and disfigured. Kraemer and his wife were both advanced in years, and there was no doubt that robbery of gold and silver which was known to be in the house, led to their murder, but we do not see any facts that would bring these dying declarations of Mrs. Kraemer within those two authorities, supposing them to be good law. If the prisoner had been tried upon the indictment for the murder of Mrs. Kraemer, her dying declarations would have been strictly legal evidence against him.

Messrs. F. G. Farquhar, Kaercher and Cumming, for plaintiff in error ; Messrs, jfames B. Reilly, district attorney, and Lin Bartholomew^ for defendant in error.

The array of grand and petit jurors was challenged from their being drawn from a jury wheel not secured according to law. By the existing law two jury commissioners are elected triennially, who are substituted for the county commissioners, and who, with the law judge and the sheriff, perform the duties prescribed by the second section of the act of 10th April, 1867, (P. L. 62) who shall “ place the names of the persons so selected in the proper jury wheel, and the said jury wheel locked as now required by law, shall remain in the custody of the said jury commissioners and the keys thereof in the custody of the sheriff of the said county.’ ’

The mode of drawing the jurors is prescribed by the third section; and the 4th section, after repealing certain acts, provides “that all acts and parts of acts of assembly now in force, in relation to the custody, sealing and unsealing, locking and opening of the jury wheel of the respective counties, and all acts and parts of acts of assembly now in force, imposing any penalty or punishment on the sheriff and county commissioners, or either of them, for anything done or omitted by them or eith'er of them, in relation to the keeping, locking, opening, sealing or breaking the seal of any jury wheel, or in relation to the selecting or drawing of jurors, shall be taken, deemed, and held to apply to the said jury commissioners and sheriff. ’ ’ The duties of the sheriff and commissioners, now jury commissioners, are distinctly prescribed, as may be seen by reference to 1 Brightly’s Digest, pp. 830, 831.

The 16th pargraph, which is section 90 of the act of 14 April, 1834, expressly provides, “as soon as the selection of jurors and the depositing of their names in the wheel as aforesaid, shall be, completed, the sheriff shall'cause the same to be locked and secured by sealing-wax, and thereon the said sheriff and (jury) commissioners shall impress distinctly their respective seals. ” It is the jury wheel that is to be locked and sealed. It is clear that only one seal was used, and that it was not sealed with the respective seals of the two jury commissioners and sheriff, making three seals. Of course this was error, and the array so challenged should have been set aside, and the indictment for the murder of Kraemer should have been quashed. The same objection will apply to the indictment for the murder of Mrs. Kraemer. New bills, therefore, sho.uld be presented to a new grand jury.

Strict attention should be paid to the execution of the jury law, so as to avoid these technical objections, which if not made at the time, are ■ cured by the 53d section of the criminal procedure act of 31 March, i860.

The judgment is reversed and the record remanded with this opinion,, setting forth the causes of reversal, to the court below for further proceeding.  