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COMMONWEALTH v. STEWART (10/04/72)

decided: October 4, 1972.

COMMONWEALTH
v.
STEWART, APPELLANT



Appeal from judgment of Court of Common Pleas of Dauphin County, Sept. T., 1960, No. 19, in case of Commonwealth of Pennsylvania v. Frederick Charles Stewart.

COUNSEL

Norman M. Yoffee, for appellant.

Marion E. MacIntyre, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts joins in the opinion of the Court and files a separate concurring opinion, in which Mr. Justice Nix and Mr. Justice Manderino join.

Author: Eagen

[ 449 Pa. Page 51]

This is a direct appeal from the judgment of sentence of life imprisonment imposed on Frederick Charles Stewart following his conviction by a jury in Dauphin County of murder in the first degree.*fn1 We reverse and order a new trial.

[ 449 Pa. Page 52]

Stewart was charged with killing his wife in a bar in Harrisburg by stabbing her with a butcher knife, and otherwise assaulting her with a beer bottle and a bar stool. After the jury was sworn and the trial commenced, defense counsel was informed by a juror on the panel that Fletcher Smith, the father of the victim of the killing, Dorothy Stewart, was on the panel of jurors from which the trial jury had been selected, and had been in the same room with the jurors who were hearing the case for as long as two and one-half days. (Stewart's counsel had a list of the panel of jurors in advance of trial, but for some reason not disclosed in the record, he did not know of the relationship of Fletcher Smith to the victim until so informed by the juror, and Fletcher Smith was never called for voir dire examination.) Defense counsel immediately moved for the withdrawal of a juror. The Commonwealth objected to the motion. The district attorney admitted he knew of the relationship before the trial jury was sworn, but had failed to bring it to the attention of the court or defense counsel. The trial court denied the motion without a hearing or an inquiry of the jurors selected to try the case, as to whether any of them had any type of conversation or association with Fletcher Smith before being accepted as jurors in the case.

The minimal standards of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and "indifferent" jurors. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639 (1961),*fn2 and 1 Burr's Trial, 416 (1807).

[ 449 Pa. Page 53]

Given this premise, it appears to us that what was said by the Supreme Court of the United States in Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546 (1965) is apropos instantly. Therein, the Court dealt with the following factual problem. Petitioner Turner was tried over a three-day period for the crime of murder, and found guilty. Two principal witnesses for the prosecution were deputy sheriffs for the county who gave very damaging testimony for the state and their credibility was vigorously attacked on cross-examination. The jurors were sequestered and were placed in the custody of the county sheriff, which meant the jurors were under the control of deputy sheriffs. Two of the deputy sheriffs who were in continual contact with the jury in this capacity were the two deputies who were the key witnesses for the state. Defense counsel challenged this practice and requested a mistrial. A brief hearing was held which established the deputies freely mingled and conversed with the jurors; however, the motion was denied on the grounds there was no showing either deputy had talked with any member of the jury about the case itself. Notwithstanding the lack of evidence

[ 449 Pa. Page 54]

    with regard to the deputies discussing the case with the jurors, the Supreme Court found a due process ...


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