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January 14, 1955


Appeal, No. 188, Oct. T., 1954, from judgment of Court of Quarter Sessions of Montgomery County, June T., 1953, No. 58, in case of Commonwealth of Pennsylvania v. John Kopitsko. Judgment affirmed.


Morton Witkin, with him Witkin & Egan and Charles F. Nahill, for appellant.

Justin G. Duryea, with him Alfred L. Taxis, Jr., Assistant District Attorneys, J. Stroud Weber, District Attorney, and J. William Ditter, Jr., Assistant District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 177 Pa. Super. Page 162]


Following a trial by jury in Montgomery County, John Kopitsko was convicted of burglary and larceny. The evidence was introduced on Monday, November 2, 1953. Court was then recessed because of the general election scheduled for the following day. When court reconvened on Wednesday, Kopitsko's attorney made a motion for the withdrawal of a juror based upon the discovery that one of the members of the jury was an attorney, and "as a lawyer he is disqualified". On the list of petit jurors available to counsel, this juror's occupation was listed as "Insurance".*fn1 The motion was refused, and the trial proceeded. The court below subsequently refused to grant a new trial, sentence was imposed, and this appeal followed.

Appellant relies upon Section 2 of the Act of May 17, 1939, P.L. 157, 17 PS § 1333, which reads as follows: "Only adult citizens of the United States, residents0 of the county and able to understand the English language, shall be eligible as jurors. Persons under

[ 177 Pa. Super. Page 163]

    indictment, whether for felonies or misdemeanors, and persons who have been convicted of felonies are ineligible for jury service. Attorneys at law and physicians in active practice shall not be listed for jury service. If the name of any person who is ineligible for jury service is placed on the jury list the name of such person may be stricken off by the court of common pleas, oyer and terminer or quarter sessions, on motion made and proof offered of such ineligibility. This power may be exercised at any time before any such juror is called and sworn as a member of any jury".

It should be noted that the enactment in question does not make attorneys ineligible for jury service. It merely provides that they shall not be listed. This statutory treatment of attorneys, as well as physicians, is in no way a reflection upon their capacity, integrity, or impartiality. On the contrary, it was the intention of the legislature to distinguish between persons ineligible because of unfitness to serve as jurors, and persons fit to serve as jurors but exempted from such service because the good of the community is promoted by the uninterrupted continuation of their regular duties. Such exemption is a privilege for the benefit of the exempted class and not for that of the litigants. In the words of Blackstone: "Besides these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded... This exemption is also extended, by divers statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impaneled, must show their special exemption": Blackstone's Commentaries, Book III, page 364.

[ 177 Pa. Super. Page 164]

Appellant's real complaint is that, according to his theory, the occupation of the juror in question was incorrectly listed. He alleges that "he never would have permitted to go unchallenged the presence of a practicing attorney on the jury had he known that such was the case". It would not be unreasonable to hold that, since the juror was employed by an insurance company, his occupation*fn2 actually was insurance. Persons legally educated frequently follow other vocations. Howbeit, Section 9 of the Act*fn3 (17 PS § 1340) expressly provides that objection to a juror based on disqualification for jury service must be made before he is sworn. Appellant's trial counsel did not exercise his right to examine the prospective jurors on their voir dire. He was not ...

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