Commonwealth v. Spahr , 211 Pa. 542 ( 1905 )

Pee Cueiam,

The first and second assignments of error are to the overruling of challenges for cause to jurors on account of opinions formed .and expressed by them. As the prisoner did not exhaust his peremptory challenges the acceptance of the jurors did him no injury: Com. v. Fry, 198 Pa. 379.

But it does not appear that challenges were improperly overruled. In the present day when everybody reads the news with the more or less conscious result of acquiring views which may vary from transitory impressions to fixed opinions, to exclude such readers from the jury box would be to exclude the most intelligent and competent members of the community. How far impressions already existing may affect the judgment upon evidence to be produced can only be known positively to the juror himself and perhaps not always with certainty to him. Much latitude must therefore be left to the discretion of the trial judge to be exercised in view of the appearance, bearing, etc., of the juror, as well as upon his literal words. “ The established test is whether or not the juror can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must be allowed to the court below which had the juror below it.” Com. v. Eagan, 190 Pa. 10; Com. v. Roddy, 184 Pa. 274.

None of the other assignments of error are in accordance with the requirements of the rules of court, as they do not set forth the evidence or matter objected to, or even refer to the place in the record where they can be found. None of them have any merit, and the only one that is worth while to notice is the seventh, in relation to the admission of the dying declaration of the murdered wife. So far as appears the objection was to the declaration as a whole. The commonwealth as required to do offered it as a whole and as the greater part of it was clearly competent the objection should have been specific. But even if the parts objected to had been specified it is by no means clear that the objection should have been sustained. The declaration was made under the full legal sanction of belief in impending death, which the law regards as equivalent to an oath. If the wife had survived and had taken the stand on a trial for attempt at murder everything in the declaration would have been competent testimony from her. It is true that dying

declarations are admitted from necessity and not being subject to cross-examination are in general to be confined to the res gestae of the killing. But in the present case the circumstances of the killing were admitted and the only defense was insanity. The previous threats had an obvious and intimate connection with the act, and in the very closely analogous, case of People v. Beverly, 108 Mich. 509,^* it was held that the circumstances made the declaration admissible, even as part of the res gestee. Whether we need to go this far or not in our view of the strict law, it is manifest that the declaration did not relate to any disputed fact, and could not possibly have done the prisoner any injury.

Judgment affirmed and record remitted for purpose of execution according to law.

* Also reported 67 N. W. Repr. 379. Reporter.