The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-11-20
-Ju $ tice at La > =
Dougherty and Marrow
Overruled.
TH1 E . EN IT E N @ II.
zach Gets a Fine of $1,000 and an
Imprisonment of Seven
Years

tt lis morning the Court Of Quarter Sessions de-
monstrated to the OF the rufians and to the
qualification Of the law-loving public, that there is
law for protection and that assassins cannot live
in Pennsylvania outside Of a penitentlary. About
half past nine O'Clock this morning strong guard
of policemen 6let down Fourth street, much to the
bewiderment of the citizens who were hurrying to
and fro in their business affairs, and next made
their appearance about the avenues leading to the
Court House and in every corner OF the courtroom,
preventing any access whatever to the prison-van
and any undue rush into court, and giving out to
the friends Of the would-be assassins of
Mr.. Brooks that any attempt at rescue
would be foiled. This unusual scene
attracted large numbers Of citizens Of all professions
to the Court who had the satisfaction Of seeing the
hired murderers, Hugh Marrow and Jas. Dougherty
brought before the tribunal Of justice to receive that
Judgment which they so richly merited. Having
reached the courtroom, the prisoners were at once
escorted to OF the ante chambers and there
searched, to see If they carried any weapons con-
cealed about their persons and were then seated in
the dock. Messrs. Ransford and Cassidy of counsel
for the prisoners being present. Judge Ludlow made
his appearance and proceeded to decide the motion
for new trial and pronounce judgment, which was
that each convict should pay fine of one thousand
pollars and undergo an Imprisonment in the Eastern
Penitentiary OF six years. eleven MONTHS and twen-
ty-three days.
The decision of the Court was as follows:-
The prisoners having been convicted OF an assault
and battery, with intent to kill and murder move
the Court for rule for a new trial. Fourteen rea-
sons have been filed in support of this motion, and
several Of them involve important principles,
they will first be considered.
First 1t Is said the Judge who tried the cause
erred sin allowing the Commonwealth to set aside
Jurors without assigning cause therefor"
1t is cOntended that the State has no such power
in case not capital. The consideration of the
question involved in this reason has obliged to
examine the law relating to 1t very thoroughly, and
aided as we have been by the elaborate and very
learned arguments of the counsel on both sides in
the case, we have arrived at the conclusion now to
be stated.
1t cannot be doubted that at the common law the
King might have challenged peremptorily without
seeking cause, any number Of jurors, and for this
reason the statute 38 Edw. |, st. a., was enacted,
win challenge any OF those jurors they shall assign
FOR their challenge cause" Rob. Dig. p 92S
sent e acce IN to
init the Crown to 'stand aside" jurors until the
panel has been exhausted or IN other words, cause
called. Hale, Pl. Cr., 271; Hawd., Pl Or, ch. As,
sect. 10; Ros. Grim. Ev, 1865 Blackstone, vol; 4,
ienee though granted to the prisoner is denied to
the king by the statute 3S Edw. l, st. A, which en-
assigning cause certain, to be tried and approved
10y the court. However it is held that the king need
gone through, and unless there cannot be full jury
without the person so chalenged and then, and not
sooner the kings counsel must show the cause,
otherwise the Juror shall be sworn"
In Judge Sharswoods edition OF Blackstone find
note by Christian, that the practice Is the same
both in trials for ntiSdenednOFS and Tor capital
ofenses, for which principle he cites Harg st. A.
5l9.
supports the doctrine named in the note, for In the
trial of Lord Grey and Others for a,isdeeanOr, in
1882 the Lord Chief JSstice id:-"If they chal-
lenge any person for the king they must show
in due time for take the course to be that the king
cannot challenge without cause put ne Is not bound
TO sho,c his cause preseny-t Is otherwise in the case
OF another person. =.
The English statute being in force in Pennsylva
nia the law remained unchanged, until the passage
of the act of 29th March, 1918, SIN. Laws, p. 6s,
whereinit declared, that the Commonwealth, "eX-
cept in cases OF felony might challenge no greater
number than the defendant or defendants, and by
the act OF April f. 1902 in all criminal cases, wherein
peremptory challenges have not heretofore been per-
mitted by law, the defendant or the defendants shall
be allowed 70 challenge four persons peremptorly,"
tory challenges in msdemeanors.
Doubtless when the act OF 1913 was passed the
legislators overlooked the fact that under the sta
tnte 80 Edw. /, the Commonwealth had no per-
emptory challenges; the act, therefore was to that
extent unnecessary; though as to the right to chal
might have been useful and necessary.
In 1884 another act of Assembly was passed. and 1t
is to be remarked that this act is Identical with the
law OF 1918, and both but repettons OF the Eng
lish statute. Ch. j. Gibson, in Commonwealth VS..
JOlliffe, Watts, $780, remarks that "the provision
that in any case OF felony the Commonwealth shall
not challenge without cause was repealed by the act
OF 1884 this however Is mistake t or u may De
argument for read for repealed" repeated, we
will settle the difficulty.
said that to the passage OF our penal code in 1850
the COMMONWEALTH, in felonies, had no right per-
emptory to challenge any juror the statute OF Edw.
1 having taken away that right, and our acts OF
Assembly simply re-enacted In terms the Englsh
statute
The right TO "set aside" Jurors being well settled
in practice in England, the question OF the power OF
the Commonwealth never seems TO have arisen in
this State until 1888, when, in Commonwealth VS..
Jollifie, Watts, $780, the Supreme Court expressed
an opinion upon the subject.
BY the act OF April 28, 1922 arson was no longer
capital ollense. Sec. 10, SIN. Laws, 485, JOffe was
indicted for arson, and the Attorney General claimed
the right TO 'set aside" Juror, without presently
assigning any cause, and this right was affirmed by
the Court.
It has been argued that inasmuch as the crime OF
challenge twenty jurors had not been taken away
by the act OF Assembly which changed the punish
ment TO imprisonment In place OF death, that there
fore the court in Commonwealth w. Jollife decided
as 1t did. Doubtless this reason may nave nad weight
with the Court, but in view OF the English practice,
it can hardly be contended that this circumstance
alone settled the controversy. AS the case stands,
it is plain decision that at any rate In 1eonles, the
Commonwealth can claim this indulgence, and
nothing less than reversal OF that decision by the
court which pronounced IL Will shake its authority
Indeed, IN warren VS.. Commonwealth, WE. 40, tnt
Supreme Court although the act OF 1860 gave TO the
Commonwealth four peremptory challenges, refused
TO disturb the practice saying that II descended u
ns, like many other CUSTOMS from the country
whence most OF our laws and customs were derived
as is proved by Gibson c. j. In Jollife VS.. Common
wealth, Watts" Thus in this case, a capital one
Notwithstanding the act OF 1860 the court affirmed
the decision in case not capital, aud felony il
which the point now under consideration wa
directly decided.
tce and with the English statute, acts OF Assembly
and decisions bef0re us, we only say that W,
Woud have erred hdd we refused TO permit th'