Commonwealth v. Franklin

• Citation: 172 Pa.Super. 152,92 A.2d 272
• Decision Date: 12 November 1952
• Docket Number: 7458
• Parties: COMMONWEALTH v. FRANKLIN.
• Court: Pennsylvania Superior Court

92 A.2d 272

172 Pa.Super. 152

COMMONWEALTH v. FRANKLIN.

No. 7458

Superior Court of Pennsylvania

November 12, 1952

The following is the opinion of Judge Milner in the court below:

There is before us for consideration a rule granted upon the district attorney to show cause why a recognizance demanded of the petitioner should not be quashed and discharged.

It is stated in the amended petition that Edward J. Franklin, the petitioner, was indicted for assault and battery and for unlawfully resisting arrest, as of December Term, 1950, No 347, in the Court of Quarter Sessions of the Peace for Philadelphia County. The matter came on for trial before a judge and jury and the petitioner was found not guilty. The trial judge, nevertheless, thereupon ordered that the defendant be 'held in $ 1,000.00 bail to keep the peace for a period of two (2) years. Defendant permitted to sign own bond,' and the order was duly endorsed upon the bill of indictment upon which petitioner had been acquitted. The petitioner that day entered bail so that he would be committed for failure to enter such bond.

The amended petition sets forth, and the district attorney has not controverted, that 'neither the commonwealth nor others had produced evidence upon which there could be found that the defendant had a previous criminal record or had been previously indicted for offenses other than those on which he had been that day acquitted, or that the defendant had the reputation of being a dangerous character in any respect, or that petitioner was 'not of good fame'.' We have examined the record of the trial of defendant Franklin and can find no evidence that he had a reputation of being a dangerous character in any respect or that he was not of good fame. The petitioner contends that the trial judge did not have the power or authority to order him held in such bail; that the 'order was without factual or legal justification'; and that the order is in contravention of petitioner's rights under the 13th and 14th amendments to the Constitution of the United States and of Article I, Sections 9, 10 and 13, of the Pennsylvania Constitution, P.S.

Because we are aware that many judges in this state have exercised a similar power to that which we are now called upon to subject to inquiry, and because we regard the matter as involving fundamental civil rights, we shall undertake an extended review of the authority upon which the power to bind after acquittal is alleged to rest. Preliminarily we must limit our inquiry by noting that we are not here concerned with the admitted common-law power of a judge to impose as part of a sentence, after conviction, a requirement that a defendant enter security for his good behavior. Nor are we considering the statutory peace bond which may be required of a defendant upon complaint of a third person that such defendant has threatened the person or property of the complainant: see Act of March 31, 1860, P.L. 427, section 6, 19 P.S. § 23, and see also Acts of March 18, 1909, P.L. 42, 19 P.S. §§ 24-26, April 27, 1909, P.S. 260, 19 P.S. §§ 27-28, and see 1 Edw. III, Stat. 2, c. 16 (1327). We are here concerned only with the assertion that a trial judge, following a trial resulting in an acquittal of the accused, may require such defendant to post such security, to assure his good behavior, as the trial judge shall, in his discretion direct and for such period of time as such judge may in his discretion direct. ^[1]

In undertaking this inquiry into the legality of the asserted authority we are aware of the fact that our Supreme Court over a century ago would seem to have already passed upon and confirmed the existence of such power. In such circumstance there would ordinarily remain nothing further for consideration by a lower court but compliance with the law as pronounced by the highest tribunal of this Commonwealth. But as we shall hereinafter indicate at greater length, none of the judicial authorities relied upon is of even comparatively recent date and there are raised in this proceeding, for the first time ^[2] constitutional questions of grave import. In the circumstances, we are bound to consider the impact of the adoption of the Fourteenth Amendment to the United States Constitution upon the statutes of this Commonwealth. We have been unable to find any binding authority in this Commonwealth, or, indeed, in any of our sister states, which considered the validity of the ancient English statute of 34 Edw. III, c. 1, in the light of modern constitutional concepts. In Quong Wing v. Kirkendall, 1912, 223 U.S. 59, 64, 32 S.Ct. 192, 193, 56 L.Ed. 350, Mr. Justice Holmes stated, 'Laws frequently are enforced which the court recognizes as possibly or probably invalid if attacked by a different interest or in a different way.'

From our survey we have been unable to find any other state in our Union in which it is maintained that a defendant acquitted in a criminal trial can be held under bond to keep the peace. Yet the practice has persisted for many years in Philadelphia County. The Public Defender, in his excellent brief as amicus curiae, states that the Report of the Board of Inspectors of the Philadelphia County Prison for the years 1939 to 1949 indicates that in that period 478 men, after acquittal of criminal charges, were compelled to serve an aggregate of over 600 years in the Philadelphia County Prison in default of bonds aggregating $ 613,200. Hundreds of defendants, acquitted by juries of their peers, have been placed under the restriction of a bond to keep the peace and many who have been unable to furnish bond or have failed to enter their recognizance have languished in jail and some are now in jail as a result of this practice. The authority for this practice is said to lie in an old English Statute adopted six centuries ago. In the first place we believe, from our review of the history of the Statute of 34 Edward III, that neither it nor the cases relating to it, including the Bamber case [Bamber v. Com.] 10 Pa. 339, decided by our Supreme Court over a century ago, justify the practice, and that in any event, since the adoption of the Fourteenth Amendment to the Constitution of the United States in 1868, and the adoption of the present Constitution of Pennsylvania in 1873, the practice is contrary to our fundamental law, is against common sense and an enlightened sense of justice, and is indefensible.

The Fourteenth Amendment to the Federal Constitution declares that no state shall deprive any person of life, liberty or property without due process of law. This amendment is a limitation on the powers of the states. 12 Am.Jur., Const.Law, Sect. 567, p. 258. In the chapter on Constitutional Law in American Jurisprudence in Section 573, it is stated:

'The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause. One of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College Case, [Trustees of Dartmouth College v. Woodward] 4 Wheat 518, 4 L.Ed. 629, in which he declared that by due process of law is meant 'a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' Somewhat similar is the statement that it is as old as the law that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and oppression and can never be upheld where justice is fairly administered.'

Article I, Sec. 9 of the Constitution of Pennsylvania provides:

'In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecution by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.'

In the case before us the petitioner was held under bond to keep the peace without any information or complaint lodged against him charging him with any offense mentioned in the Statute of 34 Edward III, which is set forth later on in this opinion. He was indicted for assault and battery and found not guilty. He had no notice that he might be accused of being a person 'not of good fame,' or of any other charge which could result in the restraint of his liberty or freedom. Without a trial by a jury of his peers he found himself adjudged quilty by a judge upon a suspicion of what he might do, and was placed under bond. This restriction was a punishment and deprivation of his rights without due process of law.

The argument has been made here that the practice which we condemn existed at common law in England and in the early days of this Commonwealth. We have said that we do not concede there is good authority for the practice in the early common law, but in any event this argument is answered in American Jurisprudence, Constitutional Law, at Section 580, as follows:

'The fact that one of the tests of due process is the common law as it existed at the time of the establishment of our civil and political institutions does not prevent a change in the law as it then existed. There is no constitutional right to have all general pr...