Opinion of
Mr. Justice Sterrett,dissenting:
It is not my purpose to do more than indicate some of the grounds on which, in my opinion, the judgment of the court below should be reversed.
The unceremonious dismissal of the juror, W. Monroe, was practically a denial of legal right, wholly unwarranted in the circumstances of the case.
For the purpose of ascertaining the qualifications, fitness, etc., of the juror, he was called and sworn on his voir dire. What then occurred is stated in the record as follows:
Quest. (By Mr. Brungard, district attorney.) “ Have you formed or expressed any opinion as to the guilt or innocence of the defendant ? ”
Ans. “ Well, yes, I signed that petition.”
By the Court: “ What ? ”
Mr. Brungard: “ He said he signed the petition.”
By the Court: “ Call another.”
Exception and bill sealed.
It is conceded that the petition referred to was signed by the juror and about 1200 other residents of the county, and is as follows:
“ To the Honorable, the Judges of the Court of Oyer and
Terminer of the County of Clinton:
“ The petition of the undersigned citizens of the commonwealth of Pennsylvania, residents of the said county, respectfully shows:
“ That we are informed as to the general line of the testimony produced and the facts established in the former trial of Charles Cleary, for the homicide of Philip Paul. And further, that the counsel for the prisoner are willing, if the court will accept it, to enter a plea of murder of the second degree, without further trial. That your petitioners are of the opinion that the requirements of justice will be fully satisfied by the entry of said plea, and the imposition of sentence in pursuance thereof. That the general sentiment of the people in the portion of the county in which we live is opposed to incurring the expense of anoth*43er trial, and imposing its burden on the taxpayers of the county, while substantial justice may be reached in the maimer proposed. We therefore pray the court to receive the plea of murder of the second degree tendered by the prisoner.”
There is nothing in this petition that is in the slightest degree disrespectful to the court, or that indicates any desire to improperly interfere with the due administration of justice. It is predicated of the prisoner’s guilt of murder, coupled with a doubt as to whether the grade of the felony is higher than murder of the second degree. At most, it is nothing more than a prayer for a merciful disposition of a case, in which the petitioners were, at least, doubtful whether the crime was of the higher grade. It cannot therefore be doubted that the action of the court in waiving the juror aside was prompted solely by the consideration that, by merely signing the petition, he had forever disqualified himself from serving as a juror in this case, notwithstanding the commonwealth, or the defendant, or both, might be satisfied as to his competency and impartiality. If his examination on his voir dire had been permitted to proceed in the usual and orderly way, who can undertake to say that his answers to the questions that would have been propounded would not have convinced the court, as well as the parties, that he was just such a juror, and that he would have been accepted as such ? The right of challenge is vested by the law, not in the court, but in the respective parties to the issue. In effect, the action of the court in this case was a usurpation of that right. The juror was not challenged by either of the parties. His examination, for the purpose of ascertaining what, if any, opinion he then entertained on the subject of capital punishment, guilt or innocence of the prisoner, etc., preliminary to exercising the right of challenge, was arrested in limine by the action of the court in curtly dismissing the juror, and ordering the clerk to call another. The prisoner was thus deprived of the legal right, which he undoubtedly had, to then and there interrogate the juror as to all matters bearing on his competency, impartiality, etc., and, after eliciting the facts, to ask the court to decide any question that might arise thereon, and have the same made a matter of record for the purpose of review in this court. It is, of course, utterly impossible for any one to say what facts would have *44been established and spread upon the record, if the legal right of the defendant had not been denied. It is no answer t'o say that the prisoner was not, and could not, have been prejudiced by the denial of the right in question. No appellate court has a right to speculate as to what may, or may not, have been the effect of the denial of a legal right. Nor will it do to say that, because the juror appended his name to the petition, he was irrevocably disqualified, and forever disbarred from serving as such on the trial of this case. Such a proposition as that must necessarily rest upon the absurd assumption that there could be no locus penitenthe in such a case, that the juror could not have been convinced, in the interim, that the opinion entertained when he signed the petition was erroneous, in that it was founded on a. misapprehension of the facts, etc. The former judgment was reversed by this court in May, 1890. The second trial commenced nearly a year thereafter. The petition must have been signed after the first judgment was reversed, but whether immediately thereafter or not does not appear. It is quite certain, however, that the time which must have elapsed between signing the petition and examination of the. juror was not so short as to preclude a change of opinion.
The facility with which signatures to petitions are procured is matter of every-day experience. If the juror had been permitted to testify to the circumstances under which his name was appended to the petition, it might have conclusively appeared that he signed at the request of some friend or neighbor, without having any knowledge of the facts stated therein, other than that communicated to him orally by others. But it is useless to speculate as to what facts might have been established if the court had not erroneously interposed and closed the door against further inquiry. It is quite sufficient, for present purposes, to know that the prisoner had a clear legal right to interrogate the jurór, and that, by the action of the court, the privilege of exercising it was denied.
As already suggested, it might have been shown by examination of the juror that, for satisfactory reasons, he had discarded any opinion he entertained when the petition was signed, and was fully prepared, at time of the trial, to take his seat as a juror, hear the case, and render a verdict according to the *45law as explained by the court, and the testimony as given by the witnesses, uninfluenced by any opinion he may have theretofore entertained or expressed. That is the true test; and any ruling that deprives a defendant of the opportunity of having it properly applied to any juror that may be called is error, too grave to be excused, much less sanctioned, by this court, especially in a capital case.
Another ground of reversal is refusal to change the venue.
A panel of 60 jurors was summoned, 52 of whom answered. Out of those, 8 wore selected, 4 of whom were subject to peremptory challenge by the commonwealth; so that when the regular panel was exhausted only 4 jurors were absolutely selected. A special venire for 35 talesman was then ordered, and the jury was finally made up of 6 jurors from the regular panel and 6 talesmen. Before the jury was sworn, defendant petitioned the court for a change of venue, under the act of March 18,1875, which provides that the venue may be changed, on application of defendant, in certain specified classes of cases, the fourth of which is as follows:
“ 4. When, upon a second trial of any felonious homicide, the evidence on the former trial thereof shall have been published within the county in which the same has been tried, and the regular panel of jurors shall be exhausted without obtaining a jury.”
The petition was under this clause, and the averments were substantially in the language thereof. As to two of the three required facts, viz., that this is the second trial, and that the regular panel was exhausted without obtaining a jury, there could be no question, because they were matters of record, of which the court is bound to take cognizance. The only remaining fact, viz., that the evidence of the former trial was published within the county, was susceptible of positive proof, and defendant averred his readiness to produce it. The court, without affording him an opportunity of doing so, but assuming the truth of all the averments necessary to bring the application within the said fourth clause, refused to allow a change of venue, holding that in either class of cases specified in the act, the court, in the exercise of its discretion, might grant or refuse any application. In that, I think, there was error. It is true the language of the second section of the act *46is, “if the court shall be satisfied of the propriety of such change of venue, and that the causes assigned therefor are true, etc.; ” but that language is applicable only to other clauses of the first section, in which the legislative intent to invest the court with such discretionary power is apparent. As to these, the words above quoted have full force and effect, and to them only they were intended to apply.
Assuming, in any given case, the truth of the facts specified in and required by the fourth- clause to be undoubted, the legislature never intended that the court in its discretion might grant or refuse a change of venue. On the contrary, the act was intended to be mandatory, fully as much so as in a case that might be supposed of an application under the first clause grounded on the undisputed fact that the prosecutrix is the wife or daughter of the judge who by law is required to try the case. It cannot be possible that the legislature ever intended any exercise of discretion in such a case, other than in the selection of the county to which the venue should be changed.
The word “ may,” in statutes, is not always employed in a merely directory or permissive sense. It is often mandatory. Whenever it appears that the legislative intent was to impose a duty, and not simply a privilege or discretionary powers, the word “ may” has always been construed “ must ” or “ shall: ” 14 Am. & Eng. Enc. of Law, 979, and cases there cited.
But assuming for the sake of argument, that in a ease like this (fully and fairly within the fourth clause of the first section, according to the undisputed facts) the court is invested with discretionary power in the premises, I think that, in the exercise of a sound discretion, the change of venue should have been ordered. This conclusion is strengthened by what occurred in connection with summoning the talesmen.
The facts upon which the third specification of error is based, in connection with the evidence adduced in support of the motion for a new trial, disclose a proceeding that is not on the lines of orderly and well established practice, especially in capital cases. Probably it was not intended as an effort to secure the selection of talesmen predisposed in favor of the commonwealth rather than the prisoner, but it has, at least, the appearance of being too dangerously near it to justify even the tacit approbation of this or any other court.
*47In his opinion, denying the motion for a new trial, the learned president of the oyer and terminer says, inter alia: “ The sheriff in summoning talesmen asked them these questions;— whether they had any conscientious scruples on the subject of capital punishment; whether they had formed or expressed an opinion as to the guilt or innocence of the prisoner, and whether they had signed the petition requesting the court to accept a plea of murder in the second degree. This was but putting questions to the juror similar to those which are authorized to be put at the examination of the juror as to his competency. But the sheriff is not the proper officer to put such questions, nor decide upon the answer, as the competency of the jurors must be determined by the court. . . . The only instruction given by the court to the sheriff was not to summon persons as jurors who had signed the petition, as all such would be rejected; and the defendant cannot complain of this as error. As to the other questions propounded by the sheriff, he must have received his instructions from the district attorney.”
The evidence, above referred to, in support of motion for new trial, shows that the district attorney did so instruct the sheriff.
It was not incumbent on the prisoner to show that he was prejudiced by what was done. It is enough to know that he might have been; and who can tell that he was not prejudiced ? The only safe rule is to characterize all such dangerous departures from established practice as errors. In the language of the learned judge himself, in the opinion above quoted from: “ It is of the first importance, in all criminal cases, but especially in a capital one, that the defendant should have a trial by a fair and impartial jury. It is a right secured to him by the Declaration of Rights, which declares that in all prosecutions by indictment or information, the accused hath a right to a trial, by an impartial jury of the vicinage.”
What was done in connection with the selection of the tales-men in this case was not in that direction. It was rather the reverse.
While I am in favor of a firm, prompt and fearless administration of the criminal law, especially in the higher felonies, I am opposed to innovations which are calculated to break down *48those safe guards which experience has shown to be necessary to a fair and impartial trial. Speaking of an error into which the court inadvertently fell on the former trial of this case, the present Chief Justice said: “We cannot treat this as an immaterial matter which did not prejudice the defendant. It may not have done so, but we cannot say so. The issue of life and death is so vast, both in this world and the next, that it is our duty to weigh every word carefully, and leave nothing to conjecture : ” Commonwealth v. Cleary, 135 Pa. 86.
The same rule applies with even greater force to acts contrary to the established course of procedure in the trial of criminal cases, and dangerous in their tendency.
For reasons above suggested, I would reverse the judgment and order a new trial.