Commonwealth v. Gerstman , 64 Pa. Super. 484 ( 1916 )

Opinion by

Portee, J.,

The specifications of error in this case refer only to the action of the court below in overruling the .defendant’s motion to quash the indictment. The motion to quash was for reasons not appearing upon the record, and the burden was upon the defendant to establish the facts which he alleged as grounds for quashing the indictment. The bill of exceptions in this case brings up no evidence with the record; it could not do so, for the reason that the defendant took no testimony upon his motion to quash. The assertion of the defendant was that the grand jury had voted simultaneously upon a number of indictments, charging different defendants with separate and distinct offenses, having no connection with each other. He argued that from this alleged fact it must be assumed that the grand jury, in passing upon this particular bill, had considered the testimony of the witnesses who had appeared with regard to each and every one of the other bills and whose names had been properly endorsed upon the indictment with respect to which they had testified. The only thing brought up by this bill of exceptions is the ruling of the court upon the extent to which the defendant would be permitted to interrogate the members of the grand jury as to the proceedings of that body, and which was as follows: The defendant proposed to call certain members of the grand jury and interrogate them as to their proceedings. The district attorney objected to permitting any member of the' grand jury to give testimony impeaching any act of the grand jury, involving the deliberations of that body or how its members voted. He expressly conceded the right of the defendant to examine the grand jurors as to what witnesses had testified with regard to this indictment and what the testimony of such witnesses had been. The court in passing upon this objection ruled that members of the grand jury could not be interrogated as to the opinions expressed by the members of that body in passing upon this indictment, nor as to the manner in which they voted nor as to whether they voted upon this bill and other bills, having, no connection with it, at the same time, This ruling having been made, the defendant made no attempt to prove the fact that witnesses •whose names were not endorsed upon this particular indictment had been produced and testified at the time testimony was being taken before the grand jury with regard to the indictment, which the. ruling of the court would have permitted him to do. He made no offer to prove such facts as would have been admissible under the authority of Commonwealth v. Bradney, 126 Pa. 199; Commonwealth v. Green, 126 Pa. 537, and Commonwealth v. Edmiston, 30 Pa. Superior Ct. 54. It must be assumed, therefore, that the only purpose of the defendant in calling members of the grand jury as witnesses was to impeach the action of the grand jury, by showing that in their deliberations they had voted upon several distinct indictments at the same time. There is in this case no suggestion of the presence or interference of any outside party during the deliberations of the grand jury, if there was any impropriety it was that of the grand jury, while acting as a deliberative body. No member of the grand jury can be permitted to testify how he or any member of'the jury voted, nor what opinion any of them expressed in relation thereto, nor the act of either which might invalidate the finding of the grand jury. His action, and the action of his fellow jurors, must be shown only by the returns which they make to the court: Gordon v. Commonwealth, 92 Pa. 216; Commonwealth v. Zeigler, 10 Sadler 404. There was no error in the ruling of the court below as to the extent to which the grand jurors might be interrogated, under the conditions presented in this case. The specifications of error are dismissed.

The judgment is affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been performed at the time this appeal was made a supersedeas.