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March 20, 1959


Habeas corpus proceeding.


Marjorie Hanson Matson, for petitioner.

Glenn R. Toothman, Jr., District Attorney, for Commonwealth.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 395 Pa. Page 135]


By this petition for a writ of habeas corpus, which is here under our original jurisdiction, the relator, James

[ 395 Pa. Page 136]

Morris Fletcher, seeks release from his present restraint in the Western State Penitentiary where he is serving a life sentence for his conviction of murder in the first degree.

The principal contention, which the petitioner now advances, was urged upon the court below in support of his motion for a new trial following his conviction. After the new trial motion had been denied and sentence of life imprisonment, as fixed by the jury's verdict, had been imposed upon the defendant, he appealed the judgment of sentence to this court. Here, he assigned as trial error the same reasons which he had relied upon in the court below. Following argument of the appeal, we overruled the assignments of error and affirmed the judgment of sentence (Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897). The defendant then petitioned the Supreme Court of the United States for a writ of certiorari which was denied sub nom. Fletcher v. Pennsylvania, 354 U.S. 913.

Fletcher's main contention in support of his petition for a writ of habeas corpus is that he was denied due process at his trial for murder, in violation of the 14th Amendment of the Federal Constitution, by not being permitted to challenge, either for cause or peremptorily, two of the sworn jurors in circumstances about to be related.

Pursuant to the trial procedure which obtains in Greene County (where Fletcher's trial was had), as well as in many other counties of the Commonwealth, a juror who has been examined on his voir dire and accepted by both sides is immediately sworn upon his being accepted and is not again sworn. In short, the jury, when completed, is not sworn as a body, each juror having been sworn separately.

After eight jurors had been selected and so sworn, the defendant's counsel moved the court for leave to

[ 395 Pa. Page 137]

    challenge juror number one for the reason that he was the son-in-law of a county detective who had been an investigating officer in the case, and juror number seven because of her (actually very remote) relationship to the victim of the felonious homicide for which the defendant was being tried. These matters, concerning jurors one and seven, were not known to the defendant at the time those jurors were selected and sworn. When the motion to challenge was made, the defendant had twelve peremptory challenges left. The trial judge ruled that the proposed exercise of challenges came too late and, accordingly, denied the motion. This ruling Fletcher assigned as trial error on his appeal to this court. It was then fully considered by us and rejected for the specific reason that "Since defendant made no objection to the Court's failure to discharge these jurors until after the jurors had been sworn, the verdict cannot be challenged because of any juror's disqualification ..." In the course of our discussion of the issue thus raised by the appellant we quoted from Section 9 of the Act of May 17, 1939, P.L. 157, 17 PS ยง 1340, just as the court below had done in denying the defendant's motion for a new trial. Section 9 provides that "After jurors are sworn without objection all objections to their qualifications as prescribed by this act or to the manner of their selection, drawing, or summoning shall be deemed to have been waived." It so happens, however, that the Act of 1939 is applicable to third class counties whereas Greene County, the venue of Fletcher's trial, is a sixth class county.

It is plain enough that the fact that the Act of 1939, supra, was not applicable to trials in Greene County was of no material moment whatsoever and does not affect in the slightest the merit of either the lower court's decision or our affirmance. The applicable common law rule of criminal procedure uniformly enforced

[ 395 Pa. Page 138]

    throughout the State is the same as that declared by the Act of 1939, supra, for counties of the third class. The controlling rule was well stated in Traviss v. Commonwealth, 106 Pa. 597, 607, where the defendant was likewise appealing from a sentence imposed upon a first degree murder conviction. As there enunciated, "The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party. ..." Then followed the observation that "it is not even pretended there was anything of the kind in this case" - a circumstance that is equally the situation in the case now before us.

In Commonwealth v. Walker, 283 Pa. 468, 472-473, 129 A. 453, before quoting the rule as stated in Traviss v. Commonwealth, supra, this court declared that, "It is the duty of parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors. Here there was no deception by the juror or anyone as to the fact; no effort was made to elicit such information; the failure to do so and to make objection at the proper time operates as a waiver [citing authorities from various jurisdictions]." The Walker case was also an appeal by a defendant from a sentence imposed upon a conviction for murder in the first degree.

In Commonwealth v. Penrose, 27 Pa. Superior Ct. 101, 111, President Judge RICE said, after noting that, "The only remaining question that need be noticed is that which relates to the refusal of the court to grant a new trial, upon the ground, not discovered until after the trial, that one of the jurors was an alien. It is to be observed in this connection that ... when he was drawn as a juror in the defendant's case he was accepted and sworn without being interrogated by counsel

[ 395 Pa. Page 139]

    on either side as to his qualifications .... [The disqualification] would have been disclosed, if he had been interrogated at the time he was sworn, but the defendant voluntarily omitted to avail himself of the means at his hand for informing himself and the court upon the subject. He preferred, perhaps, to hold them in reserve to be used in the event of an adverse verdict, as he had a perfect right to do, if the position of his counsel is correct. We think, however, that their position is not tenable."

Again, in Romesberg v. Merrill, 99 Pa. Superior Ct. 197, 200, the court said, "As stated above, the time to challenge is before the juror is sworn. If not exercised then, the right is waived. Traviss v. Com., supra; Com. v. Dombek, 268 Pa. 262; Com. v. Penrose, 27 Pa. Superior Ct. 101; Com. v. Walker, 283 Pa. 468. There was no attempt to show that there was any misconduct." The same was equally true here.

But, even if it had been permissible for the defendant to challenge for cause after the jurors had been sworn, it clearly appeared at the time of Fletcher's appeal to this court that there was no valid cause ...

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