Commonwealth v. O'Brien

Citation132 A.2d 265,389 Pa. 109
Decision Date27 May 1957
Docket Number3309
PartiesCOMMONWEALTH of Pennsylvania v. J. Francis LAUGHLIN and John George O'Brien. Appeal of John George O'BRIEN.
CourtUnited States State Supreme Court of Pennsylvania

Argued April 15, 1957

Appeal, No. 177, Jan. T., 1957, from decree of Superior Court of Pennsylvania, Oct. T., 1956, No. 106, affirming decree of Court of Quarter Sessions, Oyer & Terminer and General Jail Delivery, Montgomery County, Sept. T., 1953, No. 169, in case of Commonwealth of Pennsylvania v. John George O'Brien. Appeal dismissed.

Same case in Superior Ct.: 181 Pa.Super.Ct. 382.

Indictment charging defendant with robbery and burglary.

Order entered dismissing motion to quash indictment, opinion by CORSON, J. Defendant appealed to the Superior Court, which affirmed the order of the lower court. Appeal by defendant to Supreme Court allowed.

Appeal dismissed.

W Edward Bushong, Jr., for appellant.

Herbert C. Nelson, Assistant District Attorney, with him Edward E. DiJoseph, District Attorney, for appellee.




This appeal was allowed from a judgment of the Superior Court affirming the order of the Court of Quarter Sessions of Montgomery County in which the appellant's motion to quash an indictment brought against him was refused.

The appeal raises the following question: May a grand jury indict, without special permission of court, a defendant who serving a prison sentence in another county, was not present at the preliminary hearing? The Superior Court rendered a decision on the merits reported in 181 Pa.Super. 382, 124 A.2d 666 (1956).

It was not necessary for the Superior Court to have determined the substantive question. Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court's order is interlocutory and hence, not appealable.Petition of Quay, 189 Pa. 517, 542, 42 A. 199 (1899).

The Superior Court should, therefore, have quashed the appeal to it from the order of the quarter sessions court.



On October 21, 1953, a Justice of the Peace in Montgomery County held a preliminary hearing charging the defendant, John George O'Brien, with armed robbery, burglary, and violation of the Firearms Act. Testimony was heard, the Justice of the Peace rendered a decision holding the defendant for Court, a return was made to the Montgomery County Courts, the District Attorney submitted a bill to the Grand Jury, and the Grand Jury returned an indictment against the defendant on the charges mentioned. Everything seems to have been done regularly and in accordance with established procedure - with one important exception: the defendant was not present at the hearing! To have a hearing without the accused is like having a performance of Hamlet without the Dane; it is like serving dinner to a phantom guest.

What is a preliminary hearing? Bouvier's Law Dictionary defines it as follows: "The investigation by an authorized magistrate of the circumstances which constitute the grounds for an accusation against a person arrested on a criminal charge, with a view to discharging the person so arrested, or to securing his appearance for trial by the proper court, and to preserving the evidence relating to the matter. Practically, it is accomplished by bringing the person accused, together with witnesses, before a magistrate (generally a justice of the peace), who thereupon takes down in writing the evidence of the witnesses, and any statements which the prisoner may see fit to make. 2 Leach 552. And see 4 Sharsw. Bla. Com. 296." [*]

Black's Law Dictionary defines a preliminary hearing in this language: "The hearing given to a person accused of crime, by a magistrate or judge, exercising the functions of a committing magistrate, to ascertain whether there is evidence to warrant and require the commitment and holding to bail of the person accused. See Bish. New Cr. L. §§ 32, 225."

The very word "hearing" imports a listening to, an auscultation of accusing evidence, but how can one listen to an accusation if he is not present? To say that there can be a hearing without the presence of the person accused is to me shocking, unless, of course, the accused waives a hearing, purposely absents himself or has fled the jurisdiction. Magna Charta, the Bill of Rights, and all the landmarks of human liberties in the English law are shining beacons of protest against ex parte proceedings.

Why was the defendant not present at the preliminary hearing in Montgomery County? The explanation is a very simple one - he was in prison in another County - Philadelphia. The Montgomery County authorities knew that the defendant languished in the Philadelphia County prison but they made no effort to have him released for the hearing, they made no arrangements to have him brought to Montgomery under guard, they did not even consider it worthwhile to notify him of the hearing. If this had happened in former Nazi Germany or in any of the Soviet countries, censure against the Nazi and the Bolsheviks would have been heavy and long continued. Why is there no censure here?

How can our Courts treat so unconcernedly so fundamentally a violation of the rights of a citizen of this Commonwealth? A preliminary hearing is not a mere decoration on the cloak of criminal procedure. It is part of the very robe of assumed innocence with which the State invests the accused from the very beginning of the prosecution. It can happen at the preliminary hearing that the accusing witnesses will find themselves to have been mistaken when they now behold the defendant before them and will so declare. It can happen that an explanation by the defendant of seemingly involving circumstances will demonstrate him innocent and he can thus be released and exonerated at once. It can happen after hearing the evidence produced against him, the defendant may suggest the calling of other witnesses whose testimony will cancel out the unfounded suspicion of guilt. All these things are not only possible but they happen every day in the orderly administration of criminal procedure in America.

When the defendant here, John George O'Brien, moved in the Montgomery County Court to quash the indictment because he had been denied the opportunity to be present at the preliminary hearing, the presiding Judge treated the...

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8 cases
  • Com. v. Barber
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 3, 1975 indictment is, in most instances, interlocutory and thus not appealable. See Commonwealth v. Bunter, supra; Commonwealth v. O'Brien, 389 Pa. 109, 110--11, 132 A.2d 265 (1957). The order appealed from in this case is not a final judgment but a refusal to quash indictments. That fact, howe......
  • Commonwealth v. Bunter
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 12, 1971
    ...obtain permission of the court to submit the bill.' Commonwealth v. O'Brien, 181 Pa.Super. 382, 398, 124 A.2d 666, 674, appeal dismissed 389 Pa. 109, 132 A.2d 265 (1957). The indictment here was initially defective because it is impossible to tell whether the presentment was done with leave......
  • Com. v. Bunter
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 12, 1971
    ...of the court to submit the bill.' Commonwealth v. O'Brien, 181 Pa.Super. 382, 398, 124 A.2d 666, 674, appeal dismissed 389 Pa. 109, 132 A.2d 265 (1957). The indictment here was initially defective because it is impossible to tell whether the presentment was done with leave of court. However......
  • Com. v. Sacarakis
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 24, 1967
    .... Page 743. 229 A.2d 743. 425 Pa. 439. COMMONWEALTH of Pennsylvania. v. Anthony SACARAKIS, Appellant. Supreme Court of Pennsylvania. May 24, 1967.         [425 Pa. 440] Irving Wilson Coleman, ......
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