Brown v. Commonwealth

• Decision Date: 10 May 1875
• Citation: 78 Pa. 122
• Court: Pennsylvania Supreme Court
• Parties: Brown <I>versus</I> The Commonwealth.

78 Pa. 122

Brown versus The Commonwealth.

Supreme Court of Pennsylvania.

March 12, 1875.

May 10, 1875.

March 12th 1875.

Before AGNEW, C. J., SHARSWOOD, MERCER, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Oyer and Terminer of Bradford county: Of January Term 1875, No. 132.

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H. W. Patrick (with whom was J. F. Sanderson), for plaintiff in error: as to the finding of the indictment in the Quarter Sessions, cited Act of March 31st 1860, sect. 32, Pamph. L. 437; 1 Br. Purd. 382, pl. 35. As to trying in Oyer and Terminer an indictment found in the Quarter Sessions and not certified to the Oyer and Terminer, sect. 21, pl. 34. As to the charge of the court on the question of insanity, they cited State v. Bartlett, 43 N. H. 228; Hopps v. People, 31 Ill. 385; Chase v. People, 40 Id. 224; Polk v. People, 19 Ind. 170; Stevens v. State, 31 Id. 485; People v. Garbat, 17 Mich. 9; People v. M'Cann, 16 New York 58; Smith v. Commonwealth, 1 Duvall 224; Ochletree v. Hale, 28 Id. 693.

H. N. Williams (with whom was J. B. Reeve, District Attorney), for Commonwealth, defendant in error.—The caption is no part of the indictment: Whart. Crim. Law, sects. 219, 220; 4 Comyn's Dig. 672, note (h); Pennsylvania v. Bell, Addison 156; Comm'th v. Bechtell, 1 Amer. L. J. 414. Amendments will be made when justice requires. Steffy v. Carpenter, 1 Wright 41. Records made in a wrong case may be transferred to the proper case: Sweeney v. Delany, 1 Barr 320. A fact not on the record which ought to appear, can be put on nunc pro tunc: Breden v. Gilliland, 17 P. F. Smith 34. There is no difference as to amendments between penal and other actions: Griffith v. Eshleman, 4 Watts 55; Megargell v. Hazleton Coal Co., 8 W. & S. 347. The court may amend after the term: Rhoads v. Comm'th, 3 Harris 276; Bailey v. Musgrave, 2 S. & R. 219; and after error brought: Ordroneaux v. Prady, 6 S. & R. 511; Murray v. Cooper, Id. 126; De Haas v. Bunn, 2 Barr 335; Sheppard's Case, 27 P. F. Smith 295; Dougherty v. Comm'th, 19 Id. 286. As to proof of insanity: Comm'th v. Mosler, 4 Barr 264; Ortwein v. Commonwealth, 26 P. F. Smith 414. Every unlawful killing is presumed to be murder, and the burden is upon the prisoner to rebut the presumption, whether the defence be insanity or anything else: O'Mara v. Comm'th, 25 P. F. Smith 424; Commonwealth v. Dunn, 8 Id. 9; Pennsylvania v. Bell, Addison 156.

Chief Justice AGNEW delivered the opinion the court, May 10th 1875.

This case has been presented with much ability by the counsel of the prisoner, who have spared no labor or pains in performing their whole duty to a client whom they were appointed to defend, without hope of reward, other than that which attends a consciousness of duty well performed. The prisoner, miserable in severable senses, has been convicted, on a full and fair trial, of a most revolting crime; yet, owing to the mixed system of criminal proceedings in this state, and the want of skill, or of care, in the double office filled by a single clerk, we are perplexed with errors of procedure which under a single system of criminal jurisdiction, and more skill in the office, would not occur. We are relieved partially in the consideration of the assignments of error, by the full and complete record of the trial in the Oyer and Terminer, made out probably under the superintendence of the presiding judge. The rule of this court being to confine itself strictly to the record proper, and to affirm, if no error affecting the rights or interests of the prisoner appear therein, we are saved from considering the formal errors assigned, excepting two; Cathcart v. Commonwealth, 1 Wright 108; Girts v. Commonwealth, 10 Harris 351.

The first is as to the amendment of the caption of the indictment which was entitled as in the Oyer and Terminer, but was amended after trial, conviction and sentence, so as to be entitled, as in the Court of Quarter Sessions. It would be a shame if this were not amendable, and we think there was sufficient before the court to amend by. No venire for grand jurors had issued out of the Court of Oyer and Terminer, and the indictment was, in fact, found in the Court of Quarter Sessions, from which the venire had issued, so that the mistake in the caption was obvious, and its amendment affected no real interest or right of the prisoner. The Court of Quarter Sessions having jurisdiction to find the indictment and send it into the Court of Oyer and Terminer for trial, the error in the caption was purely technical, and the amendment did the prisoner no harm.

The next assignment of error is more formidable, yet we think it fell within the power of amendment. The indictment found in the Quarter Sessions had not been formally certified into the Court of Oyer and Terminer at the time of trial. Afterwards, under a nunc pro tunc order, it was regularly certified in due form into the Court of Oyer and Terminer, and so appears on the record of that court. We think, under the authority of Dougherty v. The Commonwealth, 19 P. F. Smith 293, the amendment nunc pro tunc was properly allowed. The prisoner was tried before judges having jurisdiction of his crime, by a jury duly selected and empannelled, on an indictment found by a grand jury having power to inquire of the offence, in a court having jurisdiction of the inquiry; and the indictment being, in fact, sent into and in possession of the Oyer and Terminer, and sufficient and regular in charging the offence. Both courts are held by the same judges, and a single clerk fills the office...