a judgment of guilty of murder in the first | murder, his counsel presented a petition, degree, he appeals. Reversed. In a preliminary proceeding to determine the sanity of the prisoner the jury found the prisoner sane. Thereafter the prisoner, by his counsel, pleaded guilty and the court found him guilty of murder of the first degree and passed sentence of death. Errors assigned, among others, were the third, fourth, and sixth, which were as fol lows: signed by them in his behalf, in which it was alleged that he was then insane and not sel or to comprehend the nature of the promentally competent to confer with his counceedings on a trial of the indictment, and it was asked that an issue be framed to try the question of his sanity, as provided by section 67 of the act of March 31, 1860 (P. L. 446). The petition was granted by the court, an issue was framed, and the jury found the prisoner was sane. On the trial of this pre"(3) The court below erred, in the trial of the preliminary issue of the defendant's pres-in order to find the appellant insane, they liminary issue the jury were instructed that, ent insanity, in charging the jury as follows: 'Now he has had hallucinations; he has had delusions; and the doctors say to us that they are of a fixed and of a permanent character; that is, he cannot dissuade himself of those false impressions, whether they were derived externally from the intuition of the senses or were received in that way from the generation of his own impression, so he can not get rid of them. If you believe that, if you think that is true, from all you have heard, and if you are satisfied beyond a reasonable doubt, then you ought to say that this man is insane.' "(4) The court erred in the trial of the said issue, in charging the jury as follows: "The presumption of law is that everybody is sane, and before a person can be said to be insane by a jury, the jury must be satisfied beyond a reasonable doubt by the fair preponderance of the testimony in the case.'' "(6) The court erred, in the trial of the said issue, in charging the jury as follows: "Therefore it is essential and necessary that a jury must be satisfied beyond a reasonable doubt of the sanity of an individual before they can say he was insane. Now are you so satisfied? If you are satisfied that the man is insane, from what these people have told you here, then you ought to say so, because then it would be his unfortunate condition, and we would be required to take him and put him in some place where he could properly be restrained until such time as he may be restored to health, if that be possible, and, if not possible, then to be kept in custody until such time as nature works his dissolution.'" Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. William M. Faussett, of Pottsville, and R. A. Reick, of Frackville, for appellant. E. J. Maginnis, of Girardville, and M. F. Duffy and C. A. Whitehouse, Dist. Atty., both of Pottsville, for the Commonwealth. FELL, C. J. [1] When the prisoner was called to the bar of the court to plead to the indictment charging him with the crime of must be satisfied of his insanity beyond a reasonable doubt. This instruction was incorrect. Sanity is the normal condition of mind, and its existence is presumed. But in order to overcome the presumption of sanity it is not necessary that insanity should be established beyond a reasonable doubt. That this measure of proof is not required when insanity is set up as a substantive defense on the trial of the main issue has been held in a long line of our cases which are reviewed by our Brother Brown in Commonwealth v. Molten, 230 Pa. 399, 79 Atl. 638, and reaffirmed by the decision in that and in subsequent cases. The same rule obtains on the trial of sane. a preliminary issue to determine whether a prisoner, who is called to plead, is then inThe question to be decided is whether he is mentally able to make a rational defense and this fact is to be decided by a preponderance of the evidence. [2, 3] The error in the trial of the preliminary issue rendered all subsequent proceedings of which it was a part invalid. It was not afterwards cured by the withdrawal of the plea of not guilty, entered by direction of the court when the prisoner stood mute, and by the entry, by advice of counsel, of the plea of guilty. That plea was entered under a misapprehension by counsel of the facts which induced them to consent to it, and to which it is unnecessary to refer further than to say that neither their good faith nor the wisdom of their action in the light they then had can be questioned. But the plea was entered in behalf of a prisoner who on the averment of his counsel was not mentally competent to understand the proceedings in court, or to confer with them in relation to the charge of the indictment. He should not be held to be bound by it. "In a criminal case there is no warrant of attorney, actual or potential." Prine v. Com., 18 Pa. 103. The prisoner never had a trial of the preliminary issue which was properly submitted to the jury, and his right to one could not be waived by counsel. The third, fourth and sixth assignments of error are sustained. The judgment is reversed, and a venire facias de novo is awarded. (242 Pa. 406) COMMONWEALTH ▼. SUSHINSKIE. (Supreme Court of Pennsylvania. Nov. 7, 1913.) 1. JURY (§ 103*)-QUALIFICATIONS OF JURORS -CHALLENGE FOR CAUSE-HOMICIDE. It was not error in a homicide case to excuse a juror challenged for cause, where he stated on his examination voir dire that he had an opinion which would require strong evidence to change, and that, if sworn as a juror, he would have to take his seat in the jury box with a formed opinion which he could not set aside until he had heard evidence enough to remove it, though the juror had previously stated when questioned by defendant's counsel that, though he had formed an opinion, he could and would, if sworn as a juror, render a verdict according to the evidence. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461–479, 497; Dec. Dig. § 103.*] 2. CRIMINAL LAW (§ 11662*)—APPEAL-DisCRETIONARY RULING-EXCUSING JUror. Since a challenge of a juror for cause is addressed to the trial judge's sound discretion, the ruling thereon will not justify a conviction, unless palpably erroneous. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3114-3123; Dec. Dig. 8 11662.*] 3. JURY (§ 107*)-QUALIFICATION OF JURORS CHALLENGE FOR CAUSE. In a homicide case, it was not error to excuse a juror challenged for cause by the commonwealth, where he stated that "circumstantial evidence could not be strong enough for me to convict a man of murder in the first degree." From the record it appeared that two of the jurors challenged by the commonwealth for cause and excused by the court, when examined on their voir dire, testified as follows: "M. J. Gilmartin, sworn. Q. Have you any conscientious scruples against capital A. Not if the evidence warpunishment? rants, providing it is not circumstantial evi- say in this case whether or not you would [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 486-488, 495; Dec. Dig. 107.*] 4. CRIMINAL LAW (§ 1119*)—APPEAL-ASSIGN- mind, I would do so, but, if there was evi MENTS OF ERROR-SUFFICIENCY. Assignments of error complaining of alleged improper remarks by the district attorney and of the court's refusal to withdraw a juror thereafter and to instruct the jury to disregard such remarks will not be considered, where the record fails to show what the remarks were or that accused requested the withdrawal of a juror. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2927-2930; Dec. Dig. § 1119.*] dence clear to my mind that he is guilty, I could and would do so. Q. Notwithstanding the fact that some of it might be circumstantial? A. Some of it might be, no doubt about that. I want to be clear in that respect; some of the evidence might, but if there was evidence enough, plain to my mind, to warrant conviction, I would convict him. Q. Do you mean by that that you would not pay any attention to circumstantial evidence? 5. CRIMINAL LAW (§ 570*)-INSANITY AS DE-A. I will pay lots to the circumstantial eviFENSE-QUANTUM OF PROOF. Evidence which creates a mere doubt or a reasonable doubt as to defendant's sanity and does not fairly preponderate is insufficient to sustain the burden resting upon him to prove insanity as a defense, and thus justify his acquittal. 570.*] 6. CRIMINAL LAW (§ 756*) - INSTRUCTIONS EVIDENCE. dence, but if there was evidence enough to convince me outside of that that the man was guilty, I would convict. Q. Suppose the case depended on circumstantial evidence? A. I would not convict a man of first degree if the case was depending on circumstantial evi[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1285-1288; Dec. Dig. §dence. Q. No matter how strong? A. The circumstantial evidence could not be strong enough for me to convict a man of murder in the first degree. Mr. Whitehouse: ChalIt was not error for the trial judge to re-lenged for cause. The Court: We sustain it. fer in his charge to his notes of testimony, where he told the jury that they were to be guided by their own recollection of the testimony, and "James Mitchell, sworn. Examined by Mr. not by his reference, if he erred in quoting it. Reilly: Q. Have you heard or read about this [Ed. Note. For other cases, see Criminal case against John Sushinskie? A. Heard Law, Cent. Dig. §§ 1766-1771; Dec. Dig. § and read of it. Q. Both read and heard 756.*] about it. From what you read and heard, Appeal from Court of Oyer & Terminer, have you formed any opinion as to his guilt Schuylkill County. or innocence? A. I did, yes. Q. Have you John Sushinskie was convicted of murder of such an opinion now? A. Yes, I still got that the first degree and appeals. Affirmed. opinion. Q. If you were sworn as a juror in Defendant excepts. Bill sealed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. this case and took an oath to render a ver- | placed on record, in refusing to withdraw a dict according to the evidence as you would juror and continue the case after such rehear it here in court, could you and would marks were made, in refusing to instruct the you render a verdict upon the evidence and jury to disregard such remarks and the above that alone, wholly uninfluenced by any opin- instruction. ion that you previously formed or now have? A. I could, yes, sir. By the Court: Q. What would you do with your opinion if you were sworn as a juror? A. I would have to cast it aside. Q. Could you cast it aside, and would you cast it aside before you heard any evidence, or would it take evidence to remove it? A. It would take evidence to remove it. Q. Then until you heard evidence in the case you would still be of the opinion you now have? A. Yes, sir. Q. Is it a strong, fixed opinion? A. Well, no, not just in this case were challenged by the common very strong. Q. Would it require much evidence to remove it? A. It would require strong evidence to remove it,-good evidence to remove it. Q. You could not lay it aside until you heard evidence enough to remove it? A. No, I could not. Mr. Reilly: You answered differently a moment ago. (By request, the stenographer read the last question put by Mr. Reilly to this witness and his answer thereto.) By Mr. Reilly: Q. And would do so? A. And would. * By James B. Reilly and Z. F. Rynkiewicz, both of Pottsville, for appellant. C. A. Whitehouse, Dist. Atty., and M. F. Duffy, Asst. Dist. Atty., both of Pottsville, for the Com monwealth. BROWN, J. [1] Two of the jurors called wealth for cause. The first two complaints of the appellant are that the challenges were sustained. The first juror, when examined on his voir dire by counsel for the prisoner, stated that, though he had formed an opinion as to the guilt or innocence of the accused, he could and would render a verdict according to the evidence, if sworn as a juror in the case; but, in answer to a question by the court, before he was passed over to the commonwealth, he said it would require Mr. Whitehouse: Q. You say you have an strong evidence to change that opinion, and opinion now as to his guilt or innocence? A. that he could not lay it aside until he had Yes, sir. Q. Would you take that opinion heard evidence enough to remove it. Upon with you into the jury box and keep it until his examination by counsel for the commonyou heard evidence that would change it: wealth, he said he would take his formed A. Yes, sir. Q. You would take the opinion opinion with him into the jury box, and with you into the jury box and keep that would keep it until he heard evidence to conopinion until you heard evidence to contra-tradict or offset it. He was thereupon chaldict it or offset it? A. Yes, sir. Mr. White-lenged for cause, and, excused. house: Challenged for cause. The Court: opinion was, does not appear; but it did We will let you go. Mr. Reilly: We ask an exception. The Court: Yes. He told me he could not pass on the case until he heard evidence to remove his opinion. I want to get jurors that will be absolutely fair to both sides. Defendant excepts. Bill sealed." The remarks of the district attorney complained of by the defendant did not appear in the transcript of testimony and the only reference thereto was as follows: "Mr. Whitehouse sums up for commonwealth: During the course of Mr. Whitehouse's address to the jury, in speaking of another case in which a patient stabbed a nurse, he stated that the defendant was convicted of murder in the first degree, Mr. Reilly requested that the words be taken down and that he be granted an exception thereto." What his clearly appear out of his own mouth that, if he had been sworn as a juror, he would have taken his seat in the box with a formed opinion that he could not lay aside until he had heard "evidence enough to remove it." In the trial of cases, and especially capital cases, the great concern of counsel as well as of courts should always be to secure jurors free from feeling, prejudice, or opinions formed as to the questions at issue; for only such jurors can be safely trusted to return verdicts based upon evidence alone. [2] The challenge of a juror for cause is addressed to the trial judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the The court charged the jury, inter alia, as follows: "With this burden of proof upon the defendant, evidence which creates only a mere doubt or a reasonable doubt as to his sanity is insufficient to justify his acquittal." | printed record. They are first to be weighed The jury found a verdict of guilty of murder of the first degree upon which sentence of death was passed. Errors assigned, among others, were in excusing jurors M. J. Gilmartin and James Mitchell, in refusing to direct that the alleged by the trial judge who sees and hears the juror, and, in the exercise of a wide discre tion, may conclude that he is not competent to enter the jury box for the purpose of rendering an impartial verdict, notwithstanding his words to the contrary (Ortwein v. Com., 123 Pa. 555, 16 Atl. 795; Com. v. Roddy, 184 | dence which creates only a mere doubt or a Pa. 274, 39 Atl. 211; Com. v. Eagen, 190 Pa. reasonable doubt as to his sanity is insuffi10, 42 Atl. 374; Com. v. Spahr, 211 Pa. 542, 60 Atl. 1084), and nothing short of palpable error will justify a reversal of a trial judge in passing upon a challenge for cause (Com. v. Crossmire, 156 Pa. 304, 27 Atl. 40). No such error is disclosed by the first assignment, and it is therefore dismissed. [3] The second juror was challenged by the commonwealth because he stated that he would not convict of murder of the first degree on circumstantial evidence, adding: "Circumstantial evidence could not be strong enough for me to convict a man of murder in the first degree." The second assignment is so utterly without merit that it is dismissed without comment. [4] By the third, fourth, and fifth assignments the court is charged with error in not directing that alleged improper remarks of the district attorney be placed upon the record, in not directing a juror to be withdrawn after they were made, and in not instructing the jury to disregard them. It is sufficient to say that it does not appear from the record what the remarks were, nor that any request was made for the withdrawal of a juror, and the said assignments are therefore dismissed. cient to justify his acquittal. The jury must be satisfied by fairly preponderating evidence." We need not now review the cases cited in the Molten Case as sustaining this instruction. A brief reference to two or three of them will suffice. In Ortwein v. Com., supra, the chief question in the case arose under the fifth point of the prisoner, which was: "If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict." This was refused by the court below, and, in holding that the refusal of the point was correct, it was said: "A reasonable doubt of the fact of insanity cannot therefore be a true basis of the finding of it as a fact and as a ground of acquittal and of legal custody. To doubt one's sanity is not necessarily to be convinced of his insanity. * * * Merely doubtful evidence of insanity would fill the land with acquitted criminals. The moment a great crime would be committed, in the same instant, indeed often before, would preparation begin to lay ground to doubt the sanity of the perpetrator. The more enormous and horrible the crime, the less credible, by reason of its enormity, would be the evidence in support of it; and proportionately weak would be the required proof of insanity to acquit of it. Even now the humanity of the criminal law opens many doors of escape to the criminal. Then a wider door would be opened by the doubtful proof of insanity, made still more open by the timidity of jurors, their loose opinions on the subject of punishment, and their common error that the punishment is the consequence of their finding of the truth of the facts, instead of the consequence of the commission of the crime itself. The dan[5] As to the defense of insanity, the jury ger to society from acquittals on the ground were instructed that the burden of proving of a doubtful insanity demands a strict rule. it was upon the defendant, and that evidence It requires that the minds of the triers which created only a mere doubt or reason- should be satisfied of the fact of insanity.” able doubt as to sanity was insufficient to This rule was reannounced shortly afterjustify acquittal. This instruction is the wards in Meyers v. Com., 83 Pa. 131, where subject of the eighth assignment. We are it was said, through Mr. Chief Justice Agnew: again called upon to say that such instruc- "A reasonable doubt of the fact of insanity, tion was correct, though we ought not to be on the other hand, is not sufficient to acquit required to do so after what was distinctly upon a defense of insanity. This has been said upon a review of well-considered cases, held in several cases. Ortwein v. Com., 76 in Com. v. Molten, 230 Pa. 399, 79 Atl. 638. In Pa. 414 [18 Am. Rep. 420]; Lynch v. Com. 77 referring to the defense of insanity set up in Pa. 205; Brown v. Com., 78 Pa. 122. Sanity that case, we said: "It is not, however, suffi- being the normal condition of men, and incient that the evidence had merely raised a sanity a defense set up to an act which other · doubt as to his insanity, for a doubt is to not wise would be a crime, the burden rests upon believe, and nothing but belief that the pris- the prisoner of proving his abnormal condioner was actually insane at the time of the tion. But the evidence of this need be only commission of the offense charged against satisfactory, and the conclusion such as fairly him could have justified the jury in acquit- results from the evidence." Another case to ting him on that ground. Such a belief, under which reference may be made is Com. v. the humane rule of our cases, is one that re- Gerade, 145 Pa. 289, 22 Atl. 464, 27 Am. St. sults from a fair preponderance of the evi- Rep. 689. In the comparatively recent case dence." The language of the trial judge com- of Com. v. Lee, 226 Pa. 283, 75 Atl. 411, we plained of in the present case was: "With said, through our Brother Stewart: "A rea No complaint is made of the inadequacy of the charge, nor of any error in it as to the defense of insanity, except that portion of it complained of by the eighth assignment. The court was therefore not required to affirm defendant's fourth and fifth points. The answers to them, in view of what was said in the general charge, were sufficient. Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, 22 Atl. 761, 14 L. R. A. 89; Com. v. Danz, 211 Pa. 507, 60 Atl. 1070. operate to acquit when this defense is set up." The correct rule was followed by the court below in that portion of the charge complained of by the eighth assignment, and it is therefore dismissed. [6] In referring to his notes of testimony, the trial judge distinctly told the jury that they were to be guided by their own recollection of it, and not by his reference to it, if he erred in quoting it. This leaves the ninth, tenth, eleventh, and twelfth assignments without merit. Upon consideration of the whole record, no error is discoverable. It remains, therefore, only to say that the judgment is affirmed, and that the record be remitted to the court below for the purpose of execution. (242 Pa. 372) COMMONWEALTH v. HENDERSON. 1. JURY (§ 109*)-RIGHT TO EXCUSE JUROR- In a prosecution for murder, the matter of excusing a juror because he was crippled and it appeared to the court that he was physically unable to stand the strain necessarily imposed upon him as a juror rested within the sound discretion of the trial court, though the juror did not ask to be excused. [Ed. Note.-For other cases, see Jury, Cent. Dig. 8 524-540; Dec. Dig. § 109.*] 2. JURY (§ 108*)-RIGHT TO EXCUSE JUROR DISCRETION-HOMICIDE. In a homicide case, it was not an abuse of discretion to excuse jurors for cause on account of their having stated that they were opposed to capital punishment, though they also stated that they could disregard their conscientious scruples and render a verdict according to the law and evidence. [Ed. Note.-For other cases, see Jury, Cent. Dig. 88 489-491, 496; Dec. Dig. § 108.*] 3. CRIMINAL LAW (§ 1166%*)—APPEAL-DISCRETIONARY RULING-EXCUSING JUROR. A conviction will not be reversed because the trial judge in the exercise of his discretion excuses a juror as incompetent, where the ruling is not palpably erroneous. | a conviction of murder in the first degree, where the trial judge found that the attorney did not intend to abuse his power, and it appeared that defendant was not harmed. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 1171.*] 7. CRIMINAL LAW (§ 368*) — EVIDENCE - RES GESTE. mit a witness to testify that she had destroyIn a murder case, it was not error to pered a note found by her on the body of deceased, though there was no evidence that defendant was present, where the finding of the note was part of the res gestæ of the discovery of the body, and it was proper for the prosecution to show why the note was not produced in court. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 806, 812, 814, 815, 821; Dec. Dig. § 368.*] 8. CRIMINAL LAW (§ 1169*)-APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE. The admission of a witness' testimony, in a murder case, that she had destroyed a note found by her on the body of deceased, if error, was harmless, where she had previously been permitted to state without objection that she had destroyed the note. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] 9. CRIMINAL LAW (§ 456*)-OPINION EVIDENCE- - NONEXPERT - COMPETENCY - PRELIMINARY PROOF. The refusal to permit nonexpert witnesses for defendant, in a murder case, to testify on the question of his sanity was not error, where no proper foundation was laid for the opinion of such witnesses, though similar witnesses for the commonwealth were permitted to testify on such question after they had testified to an acquaintance with accused, and to opportunities for observation sufficient to qualify them for the purpose called. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. § 456.*] 10. CRIMINAL LAW (§ 814*)-REFUSAL OF IN STRUCTION-EVIDENCE. It was not error, in a murder case, to refuse an instruction on the law governing cases of hallucinations and delusions, where there was no evidence justifying such instruction. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*] [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. 11. CRIMINAL LAW (§ 773*)-REFUSAL OF IN11662.*] 4. CRIMINAL LAW ($ 1166%*) — APPEAL – HARMLESS ERROR-EXCUSING JUror. The erroneous excusing of a juror as disqualified is not prejudicial to accused, where the full panel is not exhausted. STRUCTION-MENTAL CONDITION. In a murder case, it was not error to refuse loosely-drawn instructions to convict accused if he was "laboring under mental derangement, although not constituting total insanity," or was "so addicted to the use of cigarettes" as [Ed. Note. For other cases, see Criminal to "poison his faculties and make him unconLaw, Cent. Dig. §§ 3114-3123; Dec. Dig.scious of a moral sense of right and wrong," 11662.*] or to refuse an instruction, that, "if the jury had a reasonable doubt of the mental respon5. JURY ( 85*)-TRIAL BY IMPARTIAL JURY-sibility of defendant, * * such a doubt RIGHT TO PARTICULAR JUROR. * prevent a conviction of murder in the first degree." [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1821-1828; Dec. Dig. § The right to have a cause tried by an impartial jury does not give a right to the services of any particular individual as a juror. must [Ed. Note.-For other cases, see Jury, Cent. 773.*] Dig. 405; Dec. Dig. § 85.*] 6. CRIMINAL LAW (8 1171*) - APPEAL · GROUND FOR REVERSAL-REMARKS OF DISTRICT ATTORNEY. That the district attorney failed to keep a promise made in his opening statement to introduce proofs was not ground for reversal of 12. CRIMINAL LAW (§ 789*)-INSANITY-INSTRUCTIONS-REASONABLE DOUBT. In a murder case, a requested instruction that, "if the jury have a reasonable doubt as to the mental responsibility of defendant at the time of the commission of the crime, such doubt must * * * prevent a conviction of murder |