Bamber v. Commonwealth

• Decision Date: 28 April 1849
• Citation: 10 Pa. 339
• Parties: BAMBER <I>v.</I> The COMMONWEALTH.
• Court: Pennsylvania Supreme Court

Page 339

10 Pa. 339

BAMBER v. The COMMONWEALTH.

Supreme Court of Pennsylvania.

April 28, 1849.

April 28.

IN error from the Quarter Sessions of Philadelphia.

Barnes, for plaintiff in error.—The result of this proceeding is an imprisonment for one year, on evidence adduced in a trial resulting in an acquittal. The verdict is conclusive of the innocence of the accused; and to sustain this order, is to permit the infliction of punishment, at the discretion of the judge, upon one against whom no charge exists. It is a sentence after verdict; and so it was originally written, though now amended to read "order;" but it is, nevertheless, a sentence. Now there is but one judgment which can be entered on the verdict of acquittal "quod sit indè quietus," &c.: Rast. Ent. 55-7, 385; 2 Hal. P. C. 394; and, after final judgment, the court cannot require surety, or make any additional order: 1 T. R. 696; 4 P. & Dav. 415; 12 Ad. & Ell. 599.

The order is, to find surety of the peace and for good behaviour. The former is under the act of 1700, and can only be on the oath of one that he goeth in bodily fear of another. The latter is founded on 34 Ed. 3, c. 1, and ought to be conditioned for the party's appearance to answer, otherwise what becomes of the provision in Mag. Ch. Nullus liber homo capiatur vel imprisonetur . . . nisi per legale judicium parium suorum vel per legem terræ: 2 Hale, 136; 2 B. & Ald. 288. Though it is true the justices have discretionary power to require surety, their discretion is to be exercised according to the law of the land, and not by their private notions: 5 Rep. 100 b; 2 Vent. 22; 14 East, 64; Vaugh. 137; 1 Ash. 140.

W. B. Reed, contrà.—This is a question of authority. Since the case in 2 Yeates, 437, which is direct to the point, the discretionary power to hold to bail for good behaviour, even after acquittal has been exercised in this county, and, for aught I know, in other counties. [COULTER, J. — The practice has existed ever since I came to the bar. ROGERS, J. — I never heard it doubted.] That case, too, rests on authority. The statute 34 Edw. 3, c. 1, authorizes the demand of surety for good behaviour from "persons that be not of good fame." It is in force in this state: 3 Bin. 612. It gives discretionary power to a magistrate to take surety from all those whom he has just cause to suspect to be dangerous: 1 Hawk. P. C. 1, ch. 61, s. 4. These are instances where defendants acquitted against plain evidence of felonies and other enormous crimes, have been bound to their good behaviour: 2 Hawk. B. 2, ch. 47, s. 11; 2 Hale ...