Commonwealth v. Bradley

• Citation: 126 Pa.St. 199,17 A. 600
• Parties: COMMONWEALTH v. BRADLEY et al.
• Decision Date: 06 May 1889
• Court: United States State Supreme Court of Pennsylvania

17 A. 600
126 Pa.St. 199

COMMONWEALTH
v.
BRADLEY et al.

Supreme Court of Pennsylvania.

May 6, 1889.

Error to court of quarter sessions, Clinton county; C. A. MAYER, Judge.

Indictment against Washington Bradley and W. P. Sweeney, supervisors of Chapman township, of said county, for neglecting to keep a road in repair. The indictment was quashed, and the state brings error.

A. W. Brungard, Dist. Atty., and George A. Brown for the Commonwealth. W. C. Kress, for defendants in error.

CLARK, J. As this indictment charges a nuisance, it was competent lot the commonwealth on the trial to take an exception to any decision or ruling of the court, and have a bill thereof sealed according to the practice in civil cases. Act 19th May, 1874, § 1, P. L. 219. The proceeding to quash is properly considered as a part of the trial. Com. v. Jackson, 1 Grant, Cas. 262. But as there was no exception taken or bill sealed upon the competency of the witnesses examined on the hearing of the motion to quash, no question of that character can arise. The testimony so taken is before us for what it is worth, upon the exception to the order quashing the indictment, and the only matter for our consideration is the sufficiency of the evidence to justify that order.

It cannot now be doubted that an indictment may be quashed for matters not apparent upon the face of the record. Bish. Crim. Law, 763. There is an apparent conflict in the cases, but the power of the court in this state has been recognized on frequent instances, and to such an extent as to establish the rule beyond question. In support of this we may cite Gillard v. Com., 26 Pa. St. 169; Brown v. Com., 73 Pa. St. 321; Com. V. Bertillon, 85 Pa. St. 488; and Clark v. Com., 16 Atl. Rep. 795, (a case in the Eastern district.) It is also true that a motion to quash a bill has been treated as a proceeding addressed to the discretion of the court, or discretion regulated by judicial rule; and according to the more common practice, perhaps, the decision is not open to revision in the higher courts, but in Pennsylvania and in some others of the states the practice is otherwise. Com. v. Church, 1 Pa. St. 105; McCullough v. Com., 67 Pa. St. 30; Com. v. Keenan, Id. 203; Hutchison v. Com., 82 Pa. St. 472.

It appears that, while the bill was under consideration of the grand jury, Mr. Brown, the district attorney, told Mr. Summer son, one of the grand jurors residing in the township in which the road was located, that the court had...