Appeals, Nos. 74 and 75, Jan. T., 1956, from judgment of the Superior Court of Pennsylvania affirming Sentence of Court of Oyer and Terminer and General Jail Delivery for City and County of Philadelphia, Feb. T., 1954, No. 564, in case of Commonwealth of Pennsylvania v. Leo Coleman, alias Clee Coleman, Roy Dixon, Caswell Curtis, etc. Judgment affirmed; reargument refused January 19, 1956.
I. Raymond Kremer, with him Morton Witkin and Witkin & Egan, for appellant.
Victor Wright, Assistant District Attorney, with him Vincent G. Panati, First Assistant District Attorney and Samuel Dash, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
The judgment of the Superior Court is affirmed on the opinion of Judge ERVIN, reported in 179 Pa. Superior Ct. 1.
ING OPINION BY MR. JUSTICE MUSMANNO:
I would grant a new trial in this case for any one of three reasons: (1) Two strangers had dinner with the jury; (2) The trial assistant district attorney, with evidence in the case that the defendant was a Republican ward leader, charged that the Republicans had misruled Philadelphia for 69 years; (3) The assistant district attorney told the jury that he could not call certain witnesses because of fear they might possibly be
murdered, presumably by the defendants, of whom the appellant here was one.
1. Two strangers dined with the jury.
When it appears to the trial judge that a trial may be unduly protracted, he may, under the Act of May 1, 1935, P.L. 127, 17 P.S. § 1153, allow the selection of two additional jurors "who shall be seated near the jury," to take the place of one or two who may die or become incapacitated. The Act is to cover only such emergencies as may arise during the trial, so that if no substitution occurs within that time, the alternates "shall be discharged upon the final submission of the case to the jury." The Act also specifically states that the alternates "shall not retire with the jury of twelve after the case is submitted to it."*fn*
In the case at bar, two additional jurors were chosen and attended upon the trial until the last day, March 24, 1954. At 6:45 p.m. on that day the Trial Judge completed his instructions to the jury without having had to use the two alternates. It became his duty, then, at that moment, to discharge the alternates, as the Act mandatorily directs. From that instant the alternates had no more right to sit with the jury than did the spectators in the courtroom. The two alternates in this case never really formed part of the jury. They were, as it were, vice-jurors, and could not function as jurors any more than vice-presidents or lieutenant-governors may act in an executive capacity unless their principals die or are disabled.
It needs no citation of authority to show that a case is "submitted" to the jury when the Judge completes his charge. The Judge, therefore, properly declared as the termination of his instructions that the services of the two alternates "will no longer be required on
this jury." At this point the two alternates were no more privileged to participate in the trial than plumbers have the prerogative to remain to dine and socialize with the family after they have completed the repair work for which they were called. But the learned Trial Judge here, instead of thanking and bidding the alternates good-night and good-bye, as he should have done, invited them - unquestionably in a spirit of hospitality, cordiality and good nature - to have dinner with the jury. This was error. He then compounded the error by adding that: "I am certain that they [the alternates] will be interested in the outcome that will be arrived at by their colleagues in the jury box." As a matter of reality, the original twelve were no longer colleagues of the two alternates. With the ending of the trial, the law intends that the jury shall disappear behind a curtain which is to be impenetrable not only to alternates but to the entire world as well. By declaring that the alternates would "be interested in the outcome," the Judge suggested, unintentionally of course, that the alternates had a right to have that interest satisfied. But, so far as the law is concerned, the interest of the alternates could arise ...