Commonwealth v. Brownmiller
| Court | Superior Court of Pennsylvania |
| Citation | 9 A.2d 155,137 Pa.Super. 261 |
| Parties | COMMONWEALTH v. BROWNMILLER et al. |
| Decision Date | 15 November 1939 |
137 Pa.Super. 261
COMMONWEALTH
v.
BROWNMILLER et al.
Superior Court of Pennsylvania.
Nov. 15, 1939.
Appeal No. 62, February term, 1939, from order and decree of Court of Quarter Sessions, Luzerne County, No. 600, February Sessions, 1939; B. R. Jones, President Judge.
Roy E. Brownmiller, Secretary of Highways, of the State of Pennsylvania, and others were charged with having conspired to defraud the Commonwealth of Pennsylvania. From an order quashing the indictment, the Commonwealth appeals.
Order affirmed.
Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES, and HIRT, JJ.
Leon Schwartz, Dist. Atty, and Mitchell Jenkins and Francis J. Beckley, Assts. Dist. Atty, all of Wilkes-Barre, for appellant.
Roy B. Pope, F. Merle Mackin, William A. Corcoran, Frank P. Lenahan, James M. Stack, all of Wilkes-Barre, Frank J. Flannery and Patrick J. Flannery, both of Pittston, H. O. Bechtel, of Pottsville, John H. Bigelow, of Hazelton, and Charles M. Bowman, of Wilkes-Barre, for appellees.
CUNNINGHAM, Judge.
The grand jury functioning at the April Term, 1939, of the Quarter Sessions Court of Luzerne County returned an indictment against Roy E. Brownmiller, Secretary of Highways of the State of Pennsylvania, William J. Carroll, a District Engineer of the Highway Department, and John Conlon, Jr., Superintendent of State Highways in Luzerne County, in which they were charged with having conspired, shortly before the general election of 1938, "to cheat and defraud the Commonwealth of Pennsylvania of its moneys and property * * * by a wasteful, wicked, corrupt and unauthorized expenditure of public moneys for political purposes." Among the overt acts charged were the making of "grossly excessive overdrafts of the funds allotted
for State Highway purposes in Luzerne County," and the "submission and passing for payment" of fraudulent payrolls.
On July 24th the court below, upon motion of counsel for the defendants, quashed the indictment by reason of "fatally defective" procedure in obtaining it, and suggested that the district attorney prepare a new indictment "along the regular line of legal procedure" and present it to the August grand jury. Instead of adopting that suggestion, the representatives of the Commonwealth took this appeal from the order quashing the indictment as returned.
Shortly after the oral argument in this court we entered an order, dated September 29, 1939,1 affirming the action of the court below, without prejudice to the right of the district attorney to renew the prosecution in a legal manner, and stating an opinion would follow at our earliest convenience.
A general outline of the history of the indictment from the quashing of which this appeal was taken is essential to an understanding of the question of law involved thereunder.
Upon the petition of the district attorney, alleging that an investigation made by him had disclosed competent and credible evidence of the commission of various criminal acts by officers, agents and employees, of the Highway Department of the Commonwealth affecting the public generally, the presiding judge of the quarter sessions gave in charge to the April grand jury the matter of investigating the charges set out in detail in the district attorney's petition. In his special charge to the grand jury he recapitulated the charges contained in the petition of the district attorney and submitted them to the grand jury for a full and prompt investigation. After defining and describing the crimes of conspiracy to defraud the Commonwealth, violation of election laws, blackmail and extortion charged in the petition, the following instruction relative to procedure was given: "Now, members of the jury, if in the present proceedings after hearing such witnesses as shall be sent before you, you conclude by the affirmative vote of twelve of your number that there is probable cause to believe that some unlawful act or acts have been committed, you will make a presentment thereof to the court, setting forth informally the nature of the offense, the names of the persons who, you believe, committed or participated in the offense and the time and place of the commission thereof as accurately as you may. Thereupon the court will direct the district attorney to prepare an indictment or formal statement of the charge charging the persons named by you with the offenses so found. Thereafter the case will proceed in the same manner as all other criminal cases, no matter how instituted. When the indictment has been laid before you, you will have to determine whether or not it correctly sets forth the charge contained in your presentment and whether it shall be returned as a 'true bill' or 'ignoramus.' It can be returned as a true bill only if
twelve of your members so affirmatively declare." (Italics supplied)
On April 6, 1939, the grand jury made a presentment, charging in detail that the defendants, and some forty-eight other persons connected with or employed by the State Highway Department, had...
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