The Ebensburg Alleghanian. [volume] (Ebensburg, Pa.) 1865-1871, 1866-04-12
John B. HOuser and Daniel Bu-
ser VS.. The commonwealth
Error to Oyer and Terminer
of Cambria County
o.. Of the Court WoodUdrd C. j.

| Optnfop -
pollv Paul. an elderly maiden lady,
vbo was reputed TO possess money, and
cassie Munday, young girl who lived
! Nth her, were both cruelty murdered on
the evening of the 7th June, 1865, in
Sumt1erhill township, Cambria county
The plaintiffs in error were defendants
below in an indictment which charged
only the murder of Miss Paul, aud after a
| full and careful trial, were both convicted
of murder in the first degree. The evil
dence was circumstantial. A great num-
Der of independent and connected facts
we're proved, and were so placed before
the jury by the learned Judge who presi-
ded at the trial, that no exception was
taken to his charge, and consequently no
question arises out OF his Instructions to
the jury for our consideration upon this
writ of error. But several bills of excep-
ton to evidence were sealed, and these are
assigned for error. Although the evil
deEce as a whole chain led irresistibly to
the conviction of guilt, yet if any material
link Of it was detective, and such as ought
TO have been rejected, the prisoners have
good right to complain in this Court. Let
| us therefore carefully examine the errors
assigned, to see if any of them are we'll
| founded.
The 1st and 9th errors complain of the
admission of John Buck and George W.
Kerbey, two of the jurors in the box, as
witnesses on the part of the Common
wealth. In respect to the first of these
witnesses, it might be sufficient to say
! that the objection was not made until after
! he was sworn as witness, when 1t was too
late to object to his competency; and 10
respect 10 both, it might be said that they
we're called to incidental and comparative
ly immaterial points that did not touch
the corpus deficit but waving these an
swers, let it be distinctly said that jurors
are not incompetent witnesses in either
| criminal or civil issues They have no
interest that disqualiics, and there is no
rule of public policy that excludes them.
On the contrary, 1T hes been our imme-
mortal practice to examine Jurors as wit
hesses when called by either party; it is
sanctioned by Archbold, see l vol. OF
Evidence, p. ISL; was recognized in
prin eiple by us in Plank Road as Thomas,
8 II. 90, where a viewer was held tn be
competent, and is regulated by the 158th
sec. of the Act Of Assembly Of l4th April,
1884, relating to juTies, Purd0n 5S6,
which requires every juror, impanneied
in any cause, 10 disclose his know ledge of
anything relative to the matter In contro-
versy in open Court, before the jury re-
tires to make verdict.
The learned counsel argue that the
practice violates the constitutional rights
of the accused, who are entitled to a
speedy and public trial by an imp 'rtiaI
jury, and to be confronted with the wit
neeses. Our law takes the utmost care 10
secure to the accused IN capital cases an
impartial jury it almost allows prisoners
to select their own triers. They may ex-
anime jurors as to their knowledge OF
circumstances, their expressions, opinions
or prejudices, and challenge as many as
they can show cause for, and may chal-
lenge twenty without showing cause, and
then if any juror happens to have knowl-
edge of any pertinent fact, he is bound to
| disclose It in time for the accused to cross
examine him and to explain or contradict
his testimony. If this be not a fulfilling
of the constitutional I'M JUNCTION in behalf
of impartial jurors, it would be difficult to
invent plan that would fulfill it, and at
the same time be consistent with the de-
mands of public justice.
But counsel imagine that the constitu-
tional right to confront witnesses would be
abridged in the instances of witnesses ia
ken from the jury-box, because their truth
and veracity could not be attacked without
damage to the attacking party. As to
material witnesses, those, we mean, upon
whose testimony the event is essentially
dependent, we think they ought not to be
admitted into the jury-box, and we believe
the general practice is to exclude them
where the fact is discovered IN time, but
we do not think the constitutional provis-
ion alluded to nor any rule of law is vlo-
lated by the examination OF juror as a
witness. The priori presumption Is
| that he is a man of truth and veraclry, or
he would not have been summoned as a
juror and confronting witnesses does
not mean impeaching their character, but
means cross-examination In the presence
of the accused
When the Common Law of England
was transported to these Colonies, IL gave
a person charged with capital crime no
compulsory process to obtain witnesses
and entitled him co no examination Dy
himself or his counsel of witnesses brought
against him. As Queen Mary said to her
Chief Justice, Sir Richard Morgan, "it
did not admit any witness to speak on any
other matter to be heard In favor OF the
adversary, her majesty being party" TO
remedy this state of the law, our consti-