Commonwealth v. Brownmiller

• Decision Date: 19 July 1940
• Docket Number: 40-1940
• Citation: 14 A.2d 907,141 Pa.Super. 107
• Parties: Commonwealth v. Brownmiller, Appellant
• Court: Pennsylvania Superior Court

14 A.2d 907

141 Pa.Super. 107

Commonwealth v. Brownmiller, Appellant

No. 40-1940

Superior Court of Pennsylvania

July 19, 1940

Argued March 13, 1940, March 14, 1940.

Appeal from judgment and sentence of Q. S. Dauphin Co., Jan. T 1939, No. 300, in case of Commonwealth v. Roy Brownmiller.

Indictment charging defendant, while Secretary of Highways of Commonwealth, with wilfully and corruptly using the funds of the Commonwealth for political purposes, and with wilfully and corruptly failing and refusing to perform the duties of his office by investigating the waste and misuse of such funds and terminating the same. Before Hughes, P. J. specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, related to the action of the court below in overruling defendant's motion to quash the indictment and in refusing to direct a verdict of acquittal.

Judgment affirmed.

J Dress Pannell, with him O. K. Eaton and H. O. Bechtel, for appellant.

Samuel Handler, with him Carl B. Shelley, District Attorney, and Earl V. Compton, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Parker, Rhodes and Hirt, JJ.

OPINION

Baldrige, J.

The appellant, Roy E. Brownmiller, was indicted March 8, 1939, and convicted June 25, 1939, of misconduct in public office during the time he was Secretary of Highways of the Commonwealth of Pennsylvania. Pursuant to the orders of the Dauphin County Court of Quarter Sessions, an investigation of the conduct of certain public officials, including Roy E. Brownmiller, was conducted by the September 1938 grand jury. Upon the conclusion of its investigation the grand jury made a presentment to the court of quarter sessions that it found Brownmiller had been guilty of unlawful conduct in his office and recommended that the matters therein reported should be considered by the regular current grand jury.

That was done and the January 1939 grand jury returned an indictment against Roy E. Brownmiller containing three counts. The first count charged him, while Secretary of Highways of the Commonwealth of Pennsylvania having the duty of supervising the expenditure of funds of the Department of Highways and the employment of men necessary for construction, maintenance, and improvement of State Highways, with wilfully and corruptly using the funds of the Commonwealth for political purposes, causing a misuse and waste of such funds by authorizing and directing their unlawful expenditure in Luzerne County in the amount of $ 600,000 and upwards.

No reference need be made to the second count, except to state that the court at the trial directed the jury to return a verdict of not guilty as to that count.

The third count charged Brownmiller, acting in his official capacity, with having knowledge of this waste and misuse of funds of the Highway Department in Luzerne County and with wilfully, corruptly, unlawfully, and maliciously failing, neglecting, and refusing to perform the duties of his office by investigating the cause of such wastes and expenditures, and terminating the same, but on the contrary, permitted such wastes and expenditures to continue.

On May 4, 1939, a motion to quash the indictment was presented to Judge Howard W. Hughes, specially presiding in Dauphin County, alleging that there were present during the taking of the testimony by the investigating grand jury unauthorized persons, including Earl V. Compton, Esq. and David Putney, Esq., unlawfully designated and appointed assistants to the district attorney by the court of quarter sessions, who participated actively in the interrogation of witnesses, reviewed and called the attention of the grand jury to the testimony, and advised them of the law applicable thereto, thus influencing them in their deliberations and actions.

The defendant also assigned for reasons in support of his motion that the secrecy of the grand jury was violated by the presence of two stenographers who took the testimony of the witnesses and dictated it onto wax cylinders of dictaphones, from which two dictaphone operators transcribed and made copies thereof, which were accessible to persons other than the district attorney and his statutory assistants.

The court permitted testimony to be taken in support of the averments in the petition, and thereafter an argument was had and upon due consideration the motion to quash the indictment was overruled. The trial of the case resulted in a conviction of the defendant on the first and third counts. Sentence was imposed and this appeal followed.

The first assignment of error is to the denial of a motion of defendant to quash the indictment. Dauphin is a county of the fourth class and as such is entitled to have a district attorney and four assistants, who were appointed prior to the institution of this prosecution. The district attorney, upon petitions filed with the court of quarter sessions, prayed for the appointment of additional assistant district attorneys by reason of the unusual amount of labor involved in making an intensive investigation, and for the proper preparation of the matters to be presented to the grand jury.

Thereupon, the president judge of the Court of Quarter Sessions of Dauphin County appointed additional special assistants to the district attorney. Thereafter additional similar petitions were presented. The court also authorized the district attorney to engage, in addition to his regular staff, stenographers, typists, a county detective, three investigators, a filing clerk, and a photostat operator.

On account of the large number of people concerned, the facilities afforded by the Dauphin County court-house were inadequate, and therefore the investigation by the grand jury was conducted in another building by direction of the court. This proceeding was undoubtedly of public concern, affecting the interest of the Commonwealth, and to serve the interest of justice and safeguard the public purse, the court, to meet the existing emergency, in the exercise of sound discretion had the power to make such appointments as it deemed necessary to the efficient administration of justice.

The courts under our Constitution have certain inherent rights and powers which do not depend solely upon express constitutional or legislative grants. They may do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction: 14 Am. Jur., Courts, § 171. Judge Maxey now Justice of the Supreme Court, recognized that rule when presiding in Lackawanna County in Re Surcharge of County Commissioners, 12 Pa. D. & C. 471. In an elaborate opinion which included a discussion of inherent powers of the courts of record, he held that it is within the scope of the court's jurisdiction to order the payment of the salary of an employee who was required by a judge to assist him in the administration of justice, as that is within the court's inherent powers. See, also, Commonwealth v. Shaffer, 178 Pa. 409, 35 A. 924; Edwards v. Prutzman et al., 108 Pa.Super. 184, 165 A. 255; Lycoming County Commissioners v. Hall, 7 Watts 290; 15 C. J. § 205, p. 871.

Assuming these assistants to the district attorney were but officers de facto and not de jure, they were discharging their duties on behalf of the public under an appointment, which, if irregular, gave them color of title and therefore they were not mere volunteers. Their authority to act cannot be successfully attacked here: Wm. John Clark v. The Commonwealth, 29 Pa. 129; Krickbaum's Contested Election, 221 Pa. 521, 70 A. 852; Commonwealth ex rel. v. Snyder, 294 Pa. 555, 144 A. 748; Solar Electric Company v. The Public Service Commission, 88 Pa.Super. 495; Commonwealth v. Bleicker, 120 Pa.Super. 397, 183 A. 78.

Furthermore, there was no testimony offered of any improper conduct among the persons designated as unauthorized, any evidence that the grand jury were influenced in their activities, or that the accused was prejudiced in any way. In the absence of proof to the contrary, the presumption is in favor of the legality and regularity of the proceedings before the grand jury: Commonwealth v. Edmiston, 30 Pa.Super. 54.

It is the duty of the district attorney, either personally or through his assistants, to attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required. It is highly improper, however, for the district attorney or an assistant to take part in the deliberations of a grand jury, as it is their duty to consider alone the evidence and apply it to the case. The parties who were in the presence of the grand jury were not intruders or meddlers; they were there in discharge of their official duties, and there is no proof that they acted in excess thereof: Commonwealth v. Bradney et al., 126 Pa. 199, 17 A. 600.

The most that could be claimed is that their presence was an irregularity, but that is insufficient to render an indictment invalid. In Commonwealth v. Hegedus, 44 Pa.Super. 157, President Judge Rice exhaustively discussed the proper conduct of proceedings before a grand jury. There a motion made to quash the indictment was granted because a stenographer, employed by the district attorney, was present during the examination of the witnesses called before the grand jury and took notes of testimony and transcribed it in longhand for the use of the district attorney. We held upon appeal that action was erroneous. The opinion points out very clearly that the oath administered to the grand jury, "the commonwealth's counsel and your own to keep secret," is founded upon the principle...