January 14, 1955
COMMONWEALTH OF PENNSYLVANIA,
CHARLES YOUNG, APPELLANT
Appeal, No. 153, Oct. T., 1954, from judgment of Court of Quarter Sessions of Montgomery County, June T., 1953, No. 257, in case of Commonwealth of Pennsylvania v. Charles Young. Judgment affirmed.
Frederick B. Smillie and Smillie, Bean & Scirica, Norristown, submitted a brief for appellant.
Justin G. Duryea, Assistant District Attorney, with him J. Stroud Weber, District Attorney, Ardmore, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 167]
OPINION BY WRIGHT, J.,
Following a trial by jury in Monogomery County, Charles Young was convicted of assault and battery. One of the jurors selected to serve in the case was designated in the official jury list as "Wolfe, Elizabeth,
[ 177 Pa. Super. Page 168]
Housewife, 17 E. Airy St., Norristown". Unknown to counsel for either side, Mrs. Wolfe was at the time, in addition to her duties as housewife, an active Justice of the Peace with offices at the address indicated. The court below refused Young's motion for a new trial, and imposed sentence. This appeal followed. As stated by counsel for appellant, the question involved is: "Was it prejudicial error that a Justice of the Peace, listed on the list of Jurors as a 'Housewife,' served as a juror in a criminal matter without knowledge of defendant or defendant's counsel."
It is appellant's contention that a Justice of the Peace is disqualified from serving as a juror in a criminal case because he is an official of the Commonwealth. Section 2 of the Act of May 17, 1939, P.L. 157, 17 PS § 1333, sets forth the qualifications for jurors in counties of the third class. We had occasion to consider this enactment in Commonwealth v. Kopitsko, 177 Pa. Superior Ct. 161, 110 A.2d 745. It does not, either literally or by implication, disqualify a justice of the peace as a juror. However, it is contended by appellant's counsel "that this statute is in no way a comprehensive statement of the necessary qualifications of jurors, or an exclusive listing of items which disqualify certain persons as jurors". He relies principally on Crawford v. U.S., 212 U.S. 183, 29 S. Ct. 260. In that case a juror listed as a druggist was found on voir dire examination to have a post office sub-station in his store. It was held that a challenge for cause should have been allowed on the ground that the juror was an employe of the government, and thus ineligible at common law. But this ruling was in effect disavowed in U.S. v. Wood, 299 U.S. 123, 57 S.Ct. 177, wherein Chief Justice HUGHES said: "In the light of the English precedents, and in the absence of any satisfactory showing of a different practice in the colonies,
[ 177 Pa. Super. Page 169]
we are unable to accept the ruling in the Crawford case as determinative here or to reach the conclusion that it was a settled rule of the common law prior to the adoption of the Sixth Amendment that the mere fact of a governmental employment, unrelated to the particular issues or circumstances of a criminal prosecution, created an absolute disqualification to serve as a juror in a criminal case".
Apparently the only Pennsylvania case in which the general subject was considered is Commonwealth v. Romito, 29 Wash. (Pa.) 155.*fn1 There a juror was listed as an undertaker, although he was also a deputy coroner. A new trial was sought on the ground that, as an employe of the county, the juror was prejudiced in favor of the Commonwealth. In dismissing the contention, President Judge GIBSON said, "... but we know of no law which disqualifies him to act as a juror, and the mere fact that, incidental to his business as an undertaker, he sometimes acted as deputy coroner, furnishes no reason why the verdict of twelve jurors should be set aside". The fact that a citizen of this Commonwealth is serving as a Justice of the Peace should not in itself disqualify him or her from acting as a juror, and we expressly so hold. This is the rule in at least two other jurisdictions,*fn2 and we know of none adopting a position to the contrary.
Appellant further contends that the listing of Mrs. Wolfe's occupation as "housewife" rather than "justice of the peace" was prejudicial since, even though she might not have been challenged for cause, she would
[ 177 Pa. Super. Page 170]
have unquestionably been removed by a peremptory challenge. Appellant's counsel did not exercise his right to examine the prospective jurors on their voir dire. It is not contended that there was any wilful deception on the part of the juror, or that she is actually not a housewife. A similar complaint was considered and rejected in Commonwealth v. Kopitsko, supra. What we said in that case applies as well to the case at bar, and need not be here repeated.