The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-06-10
FIRST EDITION
M A L P r a G T / G E.
A Severe Lesson.
Case of DR.. O. w. Reid.
Judge Paxson's Decision.
Sent to the PenitentiaFY
For Six Years and Five Months.
Points of Law Involved.
Court Of Quarter ssssions-,Judge pansOn.

court OF quarter SeSSIonS-JUdge PdGS0n.
In the case Of DR.. Oliver w. Reid, who was In
January last convicted of performing a criminal
surgical operation, Judge Paxson this morning,
upon motion for new trial, delivered the following
able opinion, overrulng the motion and settling
most vital question OF law, as to the competency OF
wife to testify in such case:-
Twenty-sx reasons In support Of the motion for a
new trial have been filed in the above case The
first, second, and third Of said reasons refer to an
alleged error of the Court in allowing an investiga-
ton in the presence OF the panel OF jurors into the
reason why an ofncer Of the court had been unable
to serve subpoena upon one Anne McKeon, a wit
ness for the Commonwealth. The facts are that
prior to the jury in the above case being impan-
ened and sworn, an ofilcer Of this court was called
and examined publicly in court In regard to the ab-
sence Of the said witness and his efforts to procure
her attendance. One of the co-defendants, Wash
ington Paynter, was shown TO have been in her
company the previous evening. The counsel for
Dr. Reid objected to public examination into this
objection was oVerraled by the Court. We do not
any error In this. Examinations OF this nature
are usually and necessarily In public, aud II we were
possible to make any examination as to the absence
Of witness without withdrawing the whole panel
OF jurors from the courtroom.
The fourth and fifth reasons alege error In over
ruling the prisoners challenge for cause as to
Thomas Stephenson and Thomas Hall, who were
called as jurors. The ground OF the challenge in
each case was that the juror had been present in
court during the investigation above referred to.
The prisoners counsel called two of the reporters of
the press who were in court at the time; another
taken place in the presence of the panel OF urors
and upon this evidence they rested their challenge.
They did not examine either juror to ascertain If he
had heard what had transpred at the time. 1t was
quite possible the attention of the particular Juror
was attracted by something else, and that he did not
even II he had the challenge for cause could not
have been sustained upon that ground. In a capital
case, where the rule upon this subject Is enforced
with more stringency 1t is not enough to disqualify
Juror tnat ne mas read and heard fun accounts OF
the supposed otfense. 1t must be shown that his
mind has received thereby Impressions as to the
guilt or innocence OF the accused which will in
nuepce his Judgment notwithstanding the evidence.
In this case there was no evidence that the Juror
even heard that which 1t was alleged might bias his
mind. This challenge is wholly unsupported by
The sixth and seventh reasons alege error In per-
mitting the Commonwealth to challenge Andrew j.
Damon, a Juror, after the defendant had exhausted
his perenptory challenges. 1t is to be noted that In
stating these reasons the learned counsel have
District Attorney had waived the challenges
allowed him by law when he came to challenge this
Juror In order therefore, that the grounds OF my
state the facts substantially as they occurred.
When the clerk was about to call the jury into the
box, the prisoners counsel asked instructions of
the Court whether they should challenge
slngy, e., as the jurors entered the box, make
their challenges when the box was full. AS there
was nothing before the Court upon which a ruling
could be had, declined to give any advice as to the
commenced challenging as the jurors names were
called, as In capital cases, and when the box had
been bee illed their challenges were exhausted Up to
his right OF challenge, nor had he been called upon
to do so. When the box full he challenged the
juror Damon, which was objected to by the prison
ers counsel upon the ground that the District
Attorney had waived his right of challenge. 1
oyerruled the objection and sustained the chal-
lenge.
1t was contended that under the ssth section Of
the criminal procedure act which provides that ali
challenges in criminal proceedings shall be alter
nate, the Commonwealth first challenging one per-
son and then the defendant challenging one person.
the District Attorney waved his right of challenge
because he failed to exercise it until after the prison.
er had exhausted his challenges; and the case OF
support Of this view In Nartzell vs.. The Com, a
Wright, 4G6, however, 1t was held that this rule does
not apply to capital cases when the jurors cha-
lenged they enter the box the reason that in
| such case the Commonwealth's challenges would be
exhaused uron the first four Jurors. The Supreme
rule requiring alternate challenges to 'clvil cases
| and msdemeanors, where the jurors are all called
into the box before the challenges begin" The
| Com. VS.. Frazier was case OF misdemeanor, and
| the jurors were all called into the box before the
challenging commenced. Here the o1rense charged
was felony, and the defendant challenged as the
| jurors entered the box. If this mode OF challenge
was proper tnen the case comes within the rule In
| Nartzeli VS.. the Com, II, on the other hand, the
challenging should not have commenced until after
the box had been filed, the Commonwealth could
not be deprived OF her challenges by the act OF the
| prisoner in challenging out OF time. The Common
wealth can only be held to alternate challenges
The eighth, ninth, and tenth reasons bring us to
the vital question in this cause, viz whether the
| wife OF co defendant not upon trial can be ex-
amiDed as a witness for the Commonwealth. 1t is
| important, because the case depends upon 1t: IL is
more Important lacJ tnaJ IL involves
| principle OF law never yet decided ia PENNSYLVANIA,
SO far as am informed, and the authorities In re-
gard to which elsewhere are conflicting and unsatis-
factory. Much as we regard the interests OF the
parties In this particular case they fade out OF sight
| when we come to settle an important principle by
which the rights and liberties OF hundreds OF Others
| may be hereafter affected.
The defendant was jointly indicted with one Wash
ington Paynter, under the 95th and 96tb sections OF
the Criminal Code, with procuring and attempting
| to procure by the use OF certain instruments and
| pregnant end quick with child miscarriage. On
the day, the day but one before the trial. Wash
ington Paynter, one OF the defendants was married
10 the said Anne Mckeon, who was the most i'm
poTtant witness for the Commonwealth, and Rlth-
| out whose testimony the charge could not have
| heen made out When the case was called for trial,
the prsoRer movedfor separate trial There being
| 10 objection on the part OF the Commonwealth
allowed the motion, ana the trial proceeded against
was called 10 the stand, the prisoners counsel
| objected to her competency as a witness upon the
ground that she was the wife OF cO-defendant The
witness was examine upon her U0ir dire, aud said
| that she had been married to Washington PagnteI
as above stated. The objection, after argument was
| oVerrued, the witness was examined and IL was
upon her testimony mainly that the prisoner was
convicted. II is upon the propriety OF that ruling
we are now TO pass
not be examined for or against each other has been
| long and we'll established. But the extent OF the
| application OF this principle, and the exceptions
thereto, are not very generally understood, and have
given rise TO variety OF conflicting opinions. shall
endeavor briefly TO examine some OF the most i'm
portant authorities bearing upon this rule the reason
OF the rule; how far II has been modified by recent