VOL VI.] THURSDAY, APRIL 24, 1879. [No. 37.

Supreme Court.

Jan. '79, 69.

The Court charged the jury, inter alia, as follows: "As the law presumes sanity to be the normal condition of the prisoner, and insanity an abnormal condition, the burden rests on him to prove his insanity as an excuse

this defence must be satisfactory to the jury, and the con-
The evidence, therefore, which is intended to establish
clusion such as fairly results from the evidence."
Held, not to be error.

Error to the Oyer and Terminer of Philadelphia County.

Alexander B. Sayres was indicted for the murder of his wife Elizabeth. Plea, "not guilty."

Jan. 9, 1879. Upon the trial, before LUDLOW, P. J., the following facts appeared:

Sayres v. The Commonwealth.

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The history of writs of error in criminal cases in Pennsylvania reviewed by PAXSON, J.

On the trial a juror was called as Joseph Dugan, 1001 Lemon St.; his real name was Joseph Dougan, his resi

dence 1008 Lemon St., and he had a son Joseph Dougan; a challenge for cause by the prisoner was overruled; the prisoner did not exhaust the peremptory challenges allowed him by law:

Held, that the overruling his challenge was not error. The Court properly refused to admit evidence that the deceased, after the infliction of the fatal wound, said "My husband shot me, but I don't want him punished," offered for the purpose of showing that she believed him to be insane, and not accountable for his actions.

The prisoner was married to Elizabeth M'Murray, Nov. 29, 1866. In 1875, there was a violent quarrel between the prisoner and his wife, in

which he threw her down stairs, and broke her arm; for this offence she had him arrested, prosecuted, and sentenced to imprisonment. The evidence as to this quarrel, and the subsequent conviction and imprisonment, was given by James M. Sayres, a son of the prisoner by a former wife, who was offered by the Commonwealth to prove the foregoing facts, to be followed by proof of previous quarrels and disputes about property, and that their relations had been of an unfriendly character-in order to show motive and malice. Objected to on the ground that there was subsequent condonation shown in his efforts to return and live with her; objection overruled, and evidence admitted; exception (second assignment of error).

The record of the Quarter Sessions and the bill of indictment in this case were also put in evidence, and it thereby appeared that the prisoner had pleaded guilty, and been sentenced for nine months. After this time, Mrs. Sayres continued to live at the old residence with her husband's two sons, and refused to have him live in the house with her. After he had been in prison one month he was liberated at her instance; he then boarded at various places, and obtained such employment as he could find, but was frequently out of employment, and was poor and failing in health. He frequently expressed a Evidence that the prisoner and the deceased about two desire to return and live with his wife, and in the years before the murder had a quarrel, in which the deceased was thrown down stairs, following evidence of autumn of 1877 said, if he could only get back general domestic infelicity, is admissible for the purpose there it would be all right with him. He tried of showing motive and malice on the part of the prisoner. to get his friends to induce his wife to let him Letters of the accused ten years old are admissible in return, and a few days before the shooting, went rebuttal of the plea of insanity, where the prisoner's evi- himself, with a friend, to the house; but when dence of insanity runs over the whole period of his life. Mrs. Sayres saw him she locked herself in her The prisoner, though separated from his wife for several room and would not see him, and as he went years, a few days before the shooting, offered, as he had away called out to him, "I'll never have anyrepeatedly done before, to return to her; she refused to re-thing to do with you on this side of the grave.' ceive him; the bank deposit-books of the prisoner and the He still wished to return, saying that, if he had deceased, showing that the former had not and the latter had money, were admitted in evidence for the purpose of showing a motive for the prisoner's desire to return to

his wife :

Heid, that such evidence was properly admitted.

got in everything would go right; and when told that he would be no better off than before, said she'd know better than to treat him bad, for if she did he'd break her neck. He was boarding

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at this time with a Mrs. Haddon; was failing in health and out of employment, and was unable to pay his rent.

On Sunday, November 18, 1877, he went to the church, of which his wife was a member, and where he had formerly been a regular attendant, having with him a pistol, which he had procured in July previous, during the riots, on the pretext that he was a private watchman. He walked up the aisle in which his wife's pew was, approached a pew on the opposite side of the aisle and lower down, as if to enter; then continued up the aisle and sat down in the pew directly behind that in which his wife and children were sitting. He took part in the service by rising and kneeling, making responses, etc. When the service was over and the people were beginning to leave the church, and while Mrs. Sayres was speaking to a friend, he stepped out of the pew close up behind his wife and fired the pistol at her, the ball taking effect in the back near the spine. He then dropped the pistol and began to walk rapidly out of the church, but was stopped on the steps and taken to a station-house without any resistance on his part. In reply to remarks made to him on the way to the station-house, he complained of pain in his head, and put his hands up to his head, saying, "Oh, my poor head." Mrs. Sayres was removed to the vestry-room, and thence to the hospital, where she died on November 29th, from shock produced by the injury to the spine.

The Commonwealth offered in evidence three deposit-books in the Philadelphia Savings Fund, stated by a book-keeper of the company to be the deposit-books of Alex. B. Sayres and Elizabeth Sayres; the purpose being to show that she had saved money, while he had some time before drawn out all of his account, in order to show motive for his wishing to live with her. Objected to; objection overruled; exception (fourth assignment of error).

There was no dispute as to any of the material facts connected with the shooting. The defence relied on was insanity. On this point much evidence was produced by both sides, which was very conflicting. The defence offered to prove by two nurses at the hospital that when Mrs. Sayres was brought there she said, "My husband shot me, but I don't want him punished," as showing that the deceased knew he was insane and not accountable for his actions. Objected to; objection sustained; exception (fifth assignment of error).

The Commonwealth offered in evidence five letters written by the prisoner prior to 1866, to show by the internal evidence of the letters that the prisoner had been at that time of sound mind. Objected to as not rebuttal; objection overruled; exception (third assignment of error).

During the calling of the jury in the Court below, the regular panel of jurors being exhausted, a special venire was issued, and the next morning, among those called from the special venire, was Joseph Dugan, 1001 Lemon Street, who testified on voir dire that his name was Joseph Dougan, that he resided at 1008 Lemon Street; and that there is no such number as 1001 Lemon Street; that his name is pronounced as if spelt Dugan; that he had a son, Joseph Dougan, who sometimes signs himself Joseph Dougan, Jr.; that he sometimes signs his name as Joseph Dougan, Sr., but not always. Challenged for cause by the prisoner; challenge overruled; exception (first assignment of error).

The prisoner did not exhaust the number of peremptory challenges allowed him by law. The Court charged the jury, inter alia, as follows:*

"As the law presumes sanity to be the normal condition of the prisoner, and insanity an abnormal condition, the burden rests upon him to prove his insanity as an excuse for an aot which would otherwise be criminal. The evidence, therefore, which is intended to establish this defence, must be satisfactory to the jury, and the conclusion such as fairly results from the evidence.

It is right to remark, without intending to disturb your right to fix the degree of crime, that in a case in which if the jury believe a deadly weapon has been used under circumstances of atrocity, and with wilful deliberation and premeditation, and with intent to kill, it is difficult to perceive how a verdict less than that of murder in the first degree could be rendered."

The jury found a verdict of guilty of murder in the first degree, and on July 13, 1878, sentence was pronounced on the prisoner. The prisoner took this writ, assigning for error the overruling of his challenge for cause to the juryman called as Joseph Dugan, the rulings upon the evidence above given as excepted to, and the portion of the charge above quoted.

The writ was taken out without a special allocatur on Nov. 30, 1878, after a warrant had issued for the execution of the prisoner, and it was not brought into the Oyer and Terminer until Dec. 9, 1878. A motion was subsequently made on behalf of the Commonwealth to quash the writ of error on the ground that it had not issued within the time prescribed by the Act of 24 March, 1877 (P. L. 40), which provides:

"That no writ of error or certiorari in capital offences shall be issued from the Supreme Court to any Court of Oyer and Terminer and General Jail Delivery, to remove the indictment record and proceedings to the Supreme Court for review, after twenty days from sentence, unless

* For a more extended report of the charge see 5 WEEKLY NOTES, 424.

specially allowed by the Supreme Court or a Judge there- | such other criminal cases as may be so provided


A special allocatur was subsequently applied for, but was refused.

[The case came up really to be heard on the motion to quash, but by agreement of counsel, the writ of error was argued on its merits; the briefs on the motion to quash were merely submitted without oral argument, and with a request that the Court would give a decision on the question involved in the motion to quash; that part of the argument which relates to the motion to quash is taken from the briefs submitted.]

C. F. Warwick and W. H. Ruddiman (with them J. L. Kinsey), for plaintiff in error.

In a case like this, involving life and death, the prisoner's challenge for cause to the juror whose name was misspelled, and residence wrongly given, should have been allowed; we were obliged to challenge peremptorily.

Quigley v. Com., 3 Norris, 18. [SHARSWOOD, C. J. Were your peremptory challenges exhausted when the jury was selected?] They were not.

for. In the one case, legislative provision is specifically authorized, in the other it is entirely omitted; the principle expressio unius est exclusio alterius is fairly applicable. This provision in the present Constitution is a new one, and it is a principle of construction that if a thing is limited to be done in a particular way, it excludes every other mode.

Sedgwick on Construction of Statutory and Constitutional Law, p. 31, note a.

Cooley on Constitutional Limitations, p. 78. A right conferred by the Constitution is beyond the reach of legislative interference.

McCafferty v. Guyer, 9 Sm. 109.

Henry S. Hagert, District Attorney, for the Commonwealth.

The error as to the name and address of the

juror was merely clerical. Any inquiry in the neighborhood would have found him, and no injury has been suffered.

The evidence of the quarrel was given in corroboration of the testimony we had previously given, without objection, that the prisoner and his wife did not get on well together. The letters The evidence covered by the second assignment objected to were offered in rebuttal of their plea of error was only calculated to inflame the minds of insanity; they had introduced evidence as to of the jurors; there was no direct testimony as insanity, running over the whole of the prisonto the motive of the shooting, and therefore this er's life, and these letters were certainly admisoffer was irrelevant. The accused had subse-sible in rebuttal of that evidence. The depositquently tried to return and live with his wife, and the law is that, if two persons quarrel, and are afterwards reconciled and subsequently fall out again, and one kills the other, it will not be sumed that they fought on the old grudge. 1 Hale, P. C. 451.

books, too, were part of our case as showing the prisoner's poverty, and his motive for desiring to return to live with his wife. Both these depositpre-books and the letters are now objected to as not having been properly proven; they were proven, and besides no such objection was made at the time; the only one was to their irrelevancy.

What the wife said at the hospital should have been admitted as a part of the res gesta, and as corroborating our evidence of insanity; for it showed that she knew her husband was not of sound mind, and was not accountable for his actions. In the charge, the Court, when speaking of the evidence necessary to establish the defence of insanity, should not have stopped when it had said it must be satisfactory and the conclusion such as "fairly results from the evidence," but should have gone on and said that the satisfaction need not be beyond a doubt. The Court is bound to charge fully on all points though not specially called on to do so.

Meyers v. Com., 3 WEEKLY NOTES, 506.

The last part of the charge that "in a case in which if the jury believe a deadly weapon has been used under circumstances of atrocity," etc., was certainly calculated to produce a strong impression against the prisoner in the minds of the jurors.

Art. V. Sect. 24 of the New Constitution makes two distinct classes subject to review; one, all cases of felonious homicide without reference to any provision for them by law; the second,

The offer in evidence by the prisoner of the wife's speech at the hospital was certainly inadmissible. We had previously offered a dying declaration of hers, and it was excluded. It was at most a mere conjecture to suppose that the words used by the wife indicated her belief in the insanity of her husband. The charge of the Court was strictly in accordance with the law as it has lately been announced by this Court.

Meyers v. The Com., 3 WEEKLY NOTES, 506. The part of the Constitution which it is claimed is inconsistent with the Act of March 24, 1877, is not contained in the Bill of Rights, but in the same Article of the Constitution which provides that the Supreme Court shall have appellate jurisdiction "by appeal, certiorari, or writ of error, as is now or may hereafter be provided by law;" and this section clearly provides for legislative regulation of the right of appeal. At common law the writ of error was of grace in all criminal cases. In this State a special allowance of the writ was always required until the Schoeppe Act. A portion of this Act was embodied in the New Constitution, that the writ should be obtainable in

all cases, but this does not prohibit the legislature | effect of this law seems not to have excited from regulating the mode of exercising the power. attention. It has changed the whole doctrine of

January 20, 1879. THE COURT. The Act of 24 March, 1877 (P. L. 40), entitled "An Act to prevent delay in the review of capital cases in the Supreme Court," provides: "That no writ of error or certiorari in capital offences shall be issued from the Supreme Court to any Court of Oyer and Terminer and General Jail Delivery, to remove the indictment record and proceedings to the Supreme Court for review after twenty days from sentence, unless specially allowed by the Supreme Court or a Judge thereof." The plaintiff in error was convicted of murder in the first degree in the Court below, and sentenced in accordance with law on July 13, 1878. This writ of error was not taken out until November 30, 1878. There was no special allowance thereof by this Court or a Judge thereof. It is but just to the learned counsel who issued the writ to say that they were not aware at the time of the passage of the Act above cited. After their attention had been called to it, they applied to Chief Justice SHARSWOOD to allow the writ nunc pro tunc, with whom I united in a denial of the application upon the merits, no point having been made at that time as to the constitutionality of the Act of 1877.

It is plain that the writ was issued in direct violation of the terms of that Act. But it is alleged that the Act is in conflict with Article V. Section 24 of the Constitution, which provides that "in all cases of felonious homicide, the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the Supreme Court for review, and in such other criminal cases as may be provided for by law." The object of the Act of 1877 is clearly expressed in its title. It was to prevent delay in the review of capital cases in this Court. It became apparent soon after the present Constitution went into effect, that the section thereof above quoted would seriously interfere with the efficient administration of the criminal law, unless the exercise of this right should be regulated by legislation. The punishment of crime should not only be certain but speedy. The result was that in practice writs of error were usually delayed until the death warrant had been issued. This, under the system of return days then in force, involved an average delay of nearly or quite a year, to which an additional year might sometimes be added in the absence of any rule advancing such cases upon our crowded lists. The evils of such a practice were pointed out by this Court in commenting upon the Act of 1870, commonly called the Schoeppe Act (Schoeppe v. The Commonwealth, 15 P. F. S. 51), in which case it was said by AGNEW, J.: "The

the criminal law as to the speed and certainty of punishment, and left to the felon both the hope and a door of escape, not only from the law's delay, but by prison breach and all the various means of avoiding retributive justice. At this moment, two cases occur to my memory of convictions of murder in Allegheny County delayed by dilatory motions, where the prison doors opened by unknown means, and the prisoners escaped forever. Any murderer may, under this law, though, like Probst, he may have murdered a whole family, take. out his writ of error without limitation of time or condition, whether in prison under sentence, or stepping upon the trap of the gallows, with cause or without it, and suspend his case until the next term of the Supreme Court. No one could condemn him if, the death warrant not preventing, he should wait till the term of the Supreme Court be passed, and then take out his writ of error to delay the execution of his sentence for a whole year. That only security to the public, the examination of the case, and allowance of the writ for cause is repealed.” The incorporation of the principle of the Schoeppe Act into the fundamental law did not tend to lessen the evils above referred to. To remedy them in fact, this Court adopted a rule in 1877 making the first Monday of each month a special return day in capital cases, and requiring such cases to be heard on the fifth Monday after the writ is taken out, provided the Court be in session in any part of the State. This rule in connection with the Act of 1877, prohibiting the issuing of a writ of error or certiorari more than twenty days from judgment would seem to provide against unreasonable delays. It remains to consider whether said Act is constitutional.

A writ of error in criminal cases is not of course, by the common law (4 Black. Comm. 392). It was of grace, not of right. But, in the third year of Queen ANNE, ten of the Judges expressed the opinion, that in all cases under treason and felony it was not merely of grace, but ought to be granted, not that it was of course, but that where there was probable cause it ought not to be denied. (Rex v. Wilkes, 4 Burr. 2550.) There has been no time in this State, at least not within the last one hundred and fifty years, when a party aggrieved could not have his writ of error. The Act of 22 May, 1722, § 9 (1 Smith's Laws, 238) provides: "That if any person or persons shall find him or themselves aggrieved with the judgment of any of the said Courts of General Quarter Sessions of the Peace and Gaol Delivery, or any other Courts of Record within this province, it shall and may be lawful to and for the party or parties so aggrieved to have his or their writ or writs of error; which shall be granted them of

course, in manner as other writs of errors are to | inherent power to control its business, and we be granted, and made returnable to the said Su- have no doubt our action was in entire harmony preme Court of this province." The Constitu- with the Constitution. If the time of returning tion of 1790, as amended in 1838, recognized the writ or of the hearing upon it may be limited this right. Section 5 of Article V. provided that by rule of Court or Act of Assembly, why may "the party accused as well as the Commonwealth not the time be limited during which the writ may, under such regulations as shall be prescribed may issue, of course provided such limitation be by law, remove the indictment and proceedings, reasonable? If the Legislature may fix no limior a transcript thereof, into the Supreme Court." tation whatever upon the issuing of such writs, it The Act of 13 April, 1791 (3 Dallas's Laws, 94), is not too much to say that capital punishment is a substantial re-enactment of the Act of 1722. cannot be hereafter enforced in Pennsylvania. It expressly provides, however, that no such writ A writ of error taken out when the prisoner is of error or certiorari shall issue, unless the same standing upon the trap of the gallows suspends be specially allowed by the Supreme Court, or his execution. Upon the hearing he may suffer one of the Judges thereof, or with the consent a non pros. and then when a second death warof the Attorney General. The Act of 8 Febru- rant issues renew his writ of error, and so on to ary, 1848 (P. L. 26), provides that writs of error the end of the dreary farce. The convention and certiorari may be issued to remove all cases which framed the Constitution, and the people from the Criminal Courts of Philadelphia when who ratified it, intended no such result as this specially allowed by any of the Judges of the when they incorporated the right to a writ of Supreme Court. The 33d section of the Crimi-error into the fundamental law. nal Procedure Act of 1860 (P. L. 437), is almost a rescript of the Act of 1791. It will thus be seen that this State has always had a system providing for the review of criminal cases by the Supreme Court. It commenced with the Common Law, was continued by the Act of 1722, then by the Act of 1791, passed immediately after the adoption of the Constitution, and later by the Act of 1860. Every person convicted of crime had a right to his writ of error, provided he were aggrieved. It is true the writ required a special allocatur, but "when such removal is requisite for the due administration of justice, an allowance by one of the Judges of this Court is grantable to the defendant of right and ex debito justitiæ, and no Judge of this Court can refuse it." (Commonwealth v. McGinnis, 2 Wharton, 113.) It was not until the Act of 15 Feb. 1870 (Schoeppe Act, P. L. 15), that a writ of error could be sued out without cause for the mere purpose of delay upon the oath of the defendant.

It is a well-settled rule that legislation that affects the remedy merely, and does not deny the right, is not open to objection upon constitutional grounds. (Stoddart v. Smith, 5 Binn. 355; Smith v. Merchand, 7 S. & R. 260; Bleakney v. Farmers and Mechanics' Bank, 17 Id. 64; Turnpike Co. v. The Commonwealth, 2 Watts, 433; Clark v. The Navigation Company, 10 Id. 364; Biddle v. Starr, 9 Barr, 461; Taggart v. McGinn, 2 Harris, 155; Keene's Appeal, 14 P. F. S. 268; Carter v. The Commonwealth, 1 Gr. 216; Bank of Kentucky v. Schuylkill Bank, 1 Pars. 180.) The Legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts, without violating the provisions of the Constitution. (Evans v. Montgomery, 4 W. & S. 218.) Even a retrospective act, which merely touches the remedy, by removing a technical impediment is constitutional. (Hinckle v. Riffert, 6 Barr, 196.) So as to limitation acts. (Miller v. Commonwealth, This was the condition of the law when the 5 W. & S. 488; Korn v. Browne, 14 P. F. S. 55.) recent constitutional convention assembled. That Statutes authorizing the entry of judgment for want body did not change the law as it then stood, but of an affidavit of defence have been held not to merely incorporated the principle of the first sec-impinge upon the constitutional right of trial by tion of the Schoeppe Act into the Constitution. jury. (Lawrance v. Borm, 5 WEEKLY NOTES, For what purpose was this done? Manifestly to prevent its repeal by the Legislature. The debates in the convention show this, and there could have been no other object (vol. 4, page 232).

The Constitution then having given a writ of error with or without a cause in a certain class of criminal cases as a writ of right, has the Legislature the power to control and regulate it? It is conceded that the right may not be denied, nor may its exercise be unreasonably obstructed or interfered with. But may not the Legislature fix return days and provide for a speedy hearing? This Court has already done so by virtue of its

187.) In the same line of authority, what are known as stay laws have been held to be constitutional. A State law which suspends for a reasonable time execution of a judgment on a prior contract, is not unconstitutional. (Chadwick v. Moore, 8 W. & S. 49; Breitenbach v. Bush, 8 Wright, 313; Huntzinger v. Brock, 3 Grant, 243; Thompson v. Buckley, 3 WEEKLY NOTES, 560.) A statute punishing the carrying of concealed deadly weapons does not infringe the 21st Section of the Bill of Rights saving the right of the citizen to bear arms in his own defence and that of the State. (Wright v. Commonwealth, 27 P.

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