Commonwealth v. Edmiston

• Decision Date: 13 January 1906
• Docket Number: 202-1905
• Citation: 30 Pa.Super. 54
• Parties: Commonwealth v. Edmiston, Appellant
• Court: Pennsylvania Superior Court

30 Pa.Super. 54

Commonwealth v. Edmiston, Appellant

No. 202-1905

Superior Court of Pennsylvania

January 13, 1906

Argued November 13, 1905

Appeal by defendants, from order of Q. S. Blair Co.-1905, No. 38 refusing to quash indictment in case of Commonwealth v. Lewis Edmiston and Scott Shaw.

Indictment for keeping a gambling house.

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

Error assigned was order refusing to quash indictment.

H Price Graffius, for appellants. -- Only those individuals whose names have been indorsed on the bill by the district attorney can be sworn. If others are examined, and their names then added by the jurors, it is improper, and the bill will be quashed on motion: Sadler's Criminal Procedure p. 245, sec. 195; Com. v. Price, 3 Pa. C.C. 175, 4 Kulp, 289; Com. v. Schall, 9 Lanc. L.Rev. 332; 5 York Leg. Record, 139; Com. v. Frescolm, 11 Lanc L.Rev. 161; Com. v. Wilson, 9 Pa. C.C. 24; Jillard v. Com., 26 Pa. 169.

J. Banks Kurtz, for appellee, filed no printed brief.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

OPINION

RICE, J.

The defendants were charged in an indictment containing two counts with violations of sec. 55 of the act of March 31, 1860 P. L. 382 relative to gambling. The direct evidence of their guilt adduced at the trial was abundant and uncontradicted; it also was shown, and of this there was no denial, that by payment of money they induced two of the commonwealth's witnesses to absent themselves at the time the grand jury was in session in order to prevent the finding of a true bill. They offered no evidence whatever, and the court submitted the case to the jury with brief but adequate description of the offenses charged, entirely justifiable comments on the testimony and, in conclusion, the instruction that if the jury had a reasonable doubt as to the guilt of the defendants they were entitled to the benefit of the doubt and to an acquittal. No exception was taken to the charge or to any ruling upon evidence, and the defendants raise no question on this appeal, and could raise none which would have legal merit, as to the form or substance of the indictment, the sufficiency or competency of the evidence, the charge of the court, or the sentence imposed. The single matter assigned for error is the denial of their motion to quash the indictment upon the ground, as stated in the motion, " that a witness, whose name was not marked on the back of the indictment, was called before the grand jury and sworn by the foreman." It appears by the docket entries that the motion was overruled, the defendants excepted and a bill was sealed. After this appeal was taken and on the same day that the certiorari was deposited in the office of the clerk of the quarter sessions the defendants presented a petition to that court, alleging that upon the hearing of the motion to quash, the district attorney admitted in open court certain facts, which they were advised should have been stated in the ruling of the court, and, since they were not so stated, praying the court to designate a time " to technically formulate the exception and seal a bill for the defendants." On the day appointed pursuant to the petition the president judge filed a paper purporting to " add to the record" a statement of what occurred upon the hearing of the motion to quash, which, although not sealed, was evidently intended to be the perfected bill of exceptions, and we shall so treat it. The facts set forth in it, so far as material here, are, that the district attorney did not deny that the indictment was found a true bill upon the testimony of a single witness whose name was not indorsed on the indictment, but he claimed that he was justified in sending such witness before the grand jury because the defendants had induced the witnesses named on the indictment to abscond; also -- this is the judge's finding -- that counsel for defendants, before making the motion, knew the name of the witness who testified before the grand jury, but said witness did not testify in the trial of the case.

The district attorney questions our authority to review the action of the quarter sessions in refusing to quash an indictment. We hold, following the Pennsylvania decisions in which the question has been duly considered, that we have such authority in a proper case: Commonwealth v Bradney, 126 Pa. 199; Commonwealth v. Hall, 23 Pa.Super. 104. Where, however, the action of the court is purely discretionary it will not be set aside unless there be an abuse of discretion both manifest and flagrant: Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531; ...