Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1861-02-20
DISSENTING OPINION OF
hon. GEORGE w. WOODWARD,
In TnE CArHcART MURDER CASE.

Error to Oyer AMI lermlner OF Clearheld
County. Dissenting opinion by
WOODWARD il regret the necessity |
, am under, to dissent from the opinion Of
the majority of the Court in this case. II
is desirable at all times that The Judgments
of the court should be unanimous, nnd it
10 especially so when the life Of fellow.
being - staked upon the ISSUE The alb
sence OF one Of our number on account Of
sickness, makes it still more important
that the four judges who sat in the 0rgu-
ment should agree in the judgment. Feel
ing the weight Of these considerations,
aud entertaining the most unielGued re-
spect for the opinions Of my brethren, IL
is upon no slight or questionable grounds
that have mad. up my mind to dissent
from their Judgment. Nor have | been
able to content my sense Of duty with a
simple dissent entered Of record but
II seems TO 'c due to the grave questions
before us, that express my reasons. with
as much fulness as the pressure Of official
duties permits and yet with as much
brevi,y as the nature of the questions will
allow.
The government Of the Commonwealth
propose to pu to death a citizen, because
of judicial conviction of the crime Of
murder He has removed the record of
that conviction into this court, and com
plains, among other thirgs, that his con-
stitutienal rights were violated, in the
manner in which his trial was conducted.
Ii this complaint be well grounded, sup
pose the government, through none of its
official organs has the right 10 put him to
death-that he holds his life as every other
man docs, under all tho guarantees OF the
Constitution-thatt the judicial organs of
the government have no jurisdiction to
condemn hia1, except in the very forms Of
the constitution, and that il is not too late
for him to plead his constitutional rights,
whist this, the highest court in ihe Com
monwealth, is delberating on his case.
The particular in which the accused
complains Of the violation Of his constitu-
ional rights, wa, IN The manner of swear
ing the jury. That may omit or mistake
nothing Of the f.cis or reasons on which
the court proceeded in this particular, |
copy The full language Of Judge Linn, as
delivered on the moton for a new trial
and IN arrest Of Judgment, and which he
has Certified and sent up 10 us.
The third reason assigned for new
trial and in arrest OF judgment was, that
the Jurors were not properly sworn; in
commening on and oyerruling which, the
learned Judge said;
"In passing upon this alleged reason for n new
trial. / have oeeB requested by the prisoners
counsel to state lhe manner in which the jury
were sworn so that if an error has been commit
ted the prisoner may not be deprived Of the ben
eft ofit To tho request we cheerfuy assent.
Mono Of the jury were sworn until the whole
twelve we're empaneed. The OATH was then
administerod to them, not separately, but as
many as sworo by the book were asked to arise,
and they were sworn thus: You and each OF
you swear, &c, using the form of oath, and SO
on as 10 those who we're qualified in different
form. Tho defendants counsel now except TO
this mode of swearing the jury. and insist that
each Juror should have been sworn separately.
We arc aware that ordinarily this is done; but
the court were induced in this case to defer
swearing the jury until the panel was full, lest
they might be obliged, on account Of the rumorS
which might prevail throughout the county, 10
dismiss the jury and continue the ease. we can
net see any reason why the mode adopted is un.
lawful. The jurywere by this m9de placed under
the ohligntohs of the oath, just efeotually, to
oil intcnts and purposes, as though it had been
ndminisered to each o1e in succession. We
cannot see how the case Of the prisoner can be
rrejudiced by this practice. Besides, we are Of
opinion that the objection, bein s matter OF
form, should have been made at the ii ne the
jury were sworn, and that it is no reason for
granting a new trial. 1t IS said by the counsel,
that the prisoner may remain silent take his
chances Of an acpuittal, and, nfter conviction,
urge the objection. There are, however, irregu.
laritics, which the prisoner must object to at the
time, or they will be considered as waived; and
il seems % US that this is one of that character
We have thus placed before US, in the
most distinct character possible, the Iact
that The jurors were not sworn severaIly,
one one, bat jointly, as they wonld
have been in a civil action, or on trial
for assault aud battery.
Tie sixth section Of the ninth article Of
the Constitution OF Pennsylvania says,
''that the trial by jury shall be as heretos
fore, and the right thereof remain invio-
late"
This provision has been in all our con-
sti'ni'ons since l776, and has al ways been
unaer'tooi as auarantying to the citizens
OF pennsylvania, the rights Of trial by jury
as they existed at common law at and be
fore that date. Very many cases of civil
jurisdicli"n, and somo Of small misde-
meano:S have been denied trial by Jury,
by legislation; but the legislature have
never atten p'Cd to liter the common law
forms oi trial for the higher crimes. On
the contrary. all our legislation has aimed
Facilitating and systematiling Jury trials
for high crimes and misdemeanors.
How then, were iuries sworn at com
mon law. in capital cases. before the be-
ginning Of our constitutional govern.
ment?
In Hnle's Pleas OF the Crown, cap. Al,
after describing the arraignment Of the
riso.er, the summoning and calling of
The jurors, and the form Of challenges we
afc told. IF no challenge hinders, the
jory are commanded TO look on the piis-
orer, Nnd then ssUeraib t0''ys Of them nei,,
~ mJre nor less, are SWORD. Hon shall
Vel and truly try" &c.
The rule Is laid down in the same words
Y 'acon's Abridgement, 5th volume, page
Blackstone tells us, in 4th vol, p. $50,
W.en The trial is called on, the Jurors
sre 10 De sworn az they 4pPsrr, 10 tss num