Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1861-02-20
DISSENTING OPINION OF
HON, GEORGE W. WOODWARD,
In TIE CATHcART MURDER CASE.

John Cathcart vs.. the Commonwealth
Error to Oyer and Terminey of Clearfeld
County Dissenting opinion b. ...
Woodward, il regret the necessity
am under, TO dissent from The opinion oI
the majority Of the Court in this case. 1t
is desirable at all times that the judgments
Of the court should be unanimous and it
u especially so when the life of fellow.
being is staked upon the issue. The alb
stnce of one of our number On account of
sickness, makes it still more important
that .he four judges who sat in the argu-
ment should agree in the judgment Feel>
ing the weight of these considerations
and entertaining the most unfegned re-
spect Tor the opinions Of my brethren, it
is upon no slight or questionable grounds
that have made up my mind to dissen t
from their Judgment. Nor have | been
able to content my sense of duty with a
simple dissent. entered of record but
it seems to !e due to the grave questions
before us, that express my reasons with
as much tullness rs the pressure of official
duties permits and yet with as much
brevity as the nature OF the questions will
allow.
The government Of the Commonwealth
proposes to put to death 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 things, that his con-
sliiutional rights were violated, in the
manner in which his trial was conducted.
If this complaint lie we'll grounded, sup
tl... 4 p. ..
official organs, has the right TO put him to
dsath-that he holds his life as every other
man does, under all the guarantees OF the
Constitution--that the judicial organs of
tho government have no jurisdiction to
condemn him, except in the very forms Of
The constitution, and that it is not too late
for him to plead his constitutional rights,
viii i this, the highest court in the Com
monwealtb, is deliberating on his case.
The particular in which tae accused
Complains of the violation of his constitu-
tonal rights, was in the manner of swear
Ing the jury. That may omit or mistake
nothing of the facts or reasons on which
the court proceeded in this particular,
copy the full language Of Judge Linn, as
delivered on the motion for new trial
and in arrest Of judgment, and which he
has certified and sent up TO us.
The third reason assigned for new
trial and in arrest Of judgment was, that
the jurors were not properly sworn in
commenting on and oyerruling which, the
learned Judge said;
"Inpaosing upon this alleged reason for n mo- "
trial have been requested by the prisoners
counsel to state lho manner in which tho jury
we're sworn, so that if an error has been commit
Gd, the prisoner may lot 10 deprived Of the ben
cut Of it, To the request we cheerfuy assent
None Of the jury wero sworn until tho whole
lseyc were empanelled. The oath was then
administered to them, not separately, but as
many as swore by the book were asked to arise
and they we're sworn thus: You and each of
you swear dc., using tho form Of oath, and Sc
osas 10 those who were qualified in n different =
form. The defendants counsel now except to
hi' mode Of swearing tho jury, and insist that
each juror should have been sworn separately. !
Wenre aware that ordinarily this is done but |
he court wore induced in this case to defer |
swearing the jury until tho panel was full, lost
they might be Obliged on account of the rumors |
which might prevail throughout the county, to ,
dismiss the jury and continue the sase. We can
net see any reason why the mode adopted is un-
awful. The jury were by this mode placed under |
OIL intents and purposes, az though it had been I
administered TO each one in succession We |
cannot SEQ how the case Of the prisoner can be
freludiced by this practice. Besides, We are OF
opaon that the objection, bein n matter of
aTn, should have been made at the tiae the |
jury were sworn, and that it is no reason for
snhling new trial. 1t is said by the counsel, !
uat the prisoner may remain silent, take his |
oHlhcas OF an acpuiual, and, after conviction, |
ufge the objection. There are, however irregu- !
antes, which the prisoner must object to at the |
ume or they will be considered MS waived and
HAeems to US that this is one Of that character"
We have thus placed before us, in the |
nosi distinct character possible, the fact !
mat the Jurors were not sworn severally, !
one y one, but Jointly, us they would |
nave been in civil action. or on a trial |
iOr assault and battery.
The sixth section Of the ninth article of
'be Constitution of Pennsylvania says, |
that the trial by jury sha! be rs heretos
lOle and the right thereof remain invio- F,
late"
This provision has been in all our con.
sIIullons since l77G, and has al ways been |
understood rs oudrantying to the citizens |
Pennsylvania, the rights of trial by jury |
Sihey existed at common law at and be-
iore that date. Very many cases of civil
jurisdiction, and some of small misde.
neano.s, have beon denied trial by jury, |
W legislation; but the legislature have /
never attempted to alter the common law
l'ms Of trial for the higher crimes. On
ae contrary, all our legislation has aimed |
taitating and systematizng jury trials
'% high crimes and misdemeanors.
nov then, were .iuries sworn at COM
@On law, in capital cases. before the be.
shhiog Of our constitutional govern. <
nent,
IN HOle's Pleas OF the Crown, cap. Al, .
aser a describing the arraignment of the
puso2er, the summonng and calling of
Mo Jurors, and the form of challenges we
ne told, "lf no challenge hinders, the
Try are commanded to look on the pris-
g.uer and then SeUeraly to6lre Of them, ne,s
m.u I m'renor less, are sworp. Yon shall
"rrl ~ and truly try" &c.
Inc rule is laid down in tie same words |
II W W bhCOns hrid yanaant 9Th vnlun,a paoa