Commonwealth v. Hubbs

• Decision Date: 10 October 1939
• Docket Number: 172-1939
• Citation: 137 Pa.Super. 229,8 A.2d 611
• Parties: Commonwealth, Appellant, v. Hubbs (No. 1)
• Court: Pennsylvania Superior Court

8 A.2d 611

137 Pa.Super. 229

Commonwealth, Appellant, v. Hubbs (No. 1)

No. 172-1939

Superior Court of Pennsylvania

October 10, 1939

Argued May 5, 1939

Appeal from order of Q. S. Phila. Co., Nov. Sessions, 1938, No. 649 in case of Commonwealth v. Edward Hubbs.

Indictment charging defendant with perjury.

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

Rule to quash indictment made absolute, opinion by Lamberton, J Commonwealth appealed.

Error assigned was the action of the court below in quashing the indictment.

Order affirmed.

Bryan A. Hermes, with him Thomas I. Guerin, Deputy Attorneys General, Claude T. Reno, Attorney General, James N. Lafferty and Gilliat G. Schroeder, Assistant Deputy Attorneys General for appellant.

Thomas D. McBride, for appellee.

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

OPINION

Cunningham, J.

In behalf of the Commonwealth of Pennsylvania, its Attorney General, acting in his official capacity, has appealed from an order of the Quarter Sessions of Philadelphia County quashing an indictment returned against Edward Hubbs and charging him with having committed wilful and corrupt perjury while testifying, on October 14, 1937, as a witness before the October, 1937, grand jury, relative to matters into which it had been specially directed and charged to inquire. As that grand jury, by direction of the court, remained in session and continued its investigations long after the expiration of the term of court for which it had been summoned, it may be designated an investigating, as distinguished from an indicting, grand jury. See Shenker v. Harr, 332 Pa. 382, 2 A.2d 298; and Com. v. Wilson, 134 Pa.Super. 222, 4 A.2d 324.

The indictment with which we are now concerned was an Attorney General's bill, signed by the Attorney General then in office and presented to the November, 1938, indicting grand jury by leave of the court below. Marked by a Deputy Attorney General on the back of the bill were the names of six witnesses, including two court stenographers who took "notes of testimony for the special October, 1937, grand jury." It was returned a "True Bill" the same day it was presented.

The background of this indictment and of another, returned against the same defendant by the same indicting grand jury on the same day to No. 650 November Sessions, 1938, in which he was charged with having "misbehaved himself in office," and from the quashing of which the Commonwealth has also appealed to No. 173, October Term, 1939, of this court, may be thus sketched from the faces of the indictments, the petitions of the defendant for rules to show cause why they should not severally be quashed, the answers of the Commonwealth, the hearing below before Lamberton, J., and his opinion filed in compliance with our Rule No. 58.

In response to the petition of the District Attorney of Philadelphia County, Bok, P. J., then presiding in the quarter sessions, charged the October, 1937, grand jury "to inquire into and investigate, amongst other matters and things then and there given them in charge, the alleged breakdown of law enforcement, particularly in respect to gambling, as well as the neglect, inefficiency and connivance of members of the Bureau of Police."

Subsequently, the Attorney General superseded the District Attorney and appointed certain Deputy Attorneys General to conduct the investigation and prosecute any criminal charges arising therefrom.

At that time the defendant was the Superintendent of the Bureau of Police, Department of Public Safety, of the City of Philadelphia.

Among other things, this investigating grand jury made a presentment in which they charged the defendant with having perjured himself while testifying before it, and with the common law offense of misbehavior in office. It was upon these presentments that the indictments above mentioned were framed and laid before the indicting grand jury functioning for the November, 1938, term of the court below.

As the questions involved upon the present appeal from the order quashing the perjury indictment are unrelated to those involved in the appeal to No. 173, October Term, 1939, from a similar order quashing the misdemeanor in office indictment, we shall confine the remainder of this opinion to the perjury case and file a separate one in the misbehavior in office charge.

Two specific charges were made in the perjury indictment. The first was that the defendant, having been duly called as a witness before the October, 1937, investigating grand jury and having taken an oath that the testimony he was about to give "would be the truth, the whole truth, and nothing but the truth," did "wilfully, knowingly, corruptly and falsely swear and testify" that he "did not then know that gambling had been conducted on a large scale in the City of Philadelphia during the year 1937; whereas in truth and in fact, he, the said Edward Hubbs, then and there well knew that gambling had been [there] conducted on a large scale" during that year. The other charge was that defendant denied he had received, during 1937, any reports from Harry Wissler and three other named patrolmen "that gambling resorts were established and in operation" in Philadelphia; whereas he well knew Wissler had reported to him, during August of that year, that approximately one hundred and twenty-five such resorts were in operation, and had given him in writing lists "of the addresses and locations of such gambling resorts."

A number of grounds were advanced in defendant's petition for quashing this indictment. All of them but one -- an alleged illegality in the administration of the oath under which defendant testified -- were overruled, and the indictment was quashed solely upon the ground that the oath had been illegally administered, in that it had been administered by "a person not legally qualified to do so."

It was recited upon the face of the indictment that one, Landis R. Klinger, was the duly appointed foreman of the October, 1937, investigating grand jury and that he, as such foreman, administered to defendant the oath under which the latter testified before that body and under which the Commonwealth charged, in the indictment found by the November, 1938, indicting grand jury, the perjury had been committed.

It was averred in defendant's petition that "Landis R. Klinger, foreman of the October, 1937, grand jury, was without lawful and competent power and authority to administer such oath in the premises." A further averment of the petition was that defendant "was not sworn by or before a judge of the court of quarter sessions prior to his appearance" before that grand jury.

The Commonwealth, in its answer, admitted defendant had not been sworn by or before the judge of the court under which the grand jury was conducting its investigation, but averred that its failure to have defendant sworn in open court before appearing for examination by the grand jury was an "immaterial" matter because the foreman of that tribunal "had lawful and competent power and authority to administer," and did administer, the oath under which defendant testified.

We, therefore, now have before us for consideration and disposition a pure question of law. No extended discussion is required to support the proposition that the crime charged in the present indictment could have been committed only if the defendant was testifying under the sanction of an oath "legally administered": Act of March 31, 1860, P. L. 382, Section 14, 18 PS § 311; Linn v. Com., 96 Pa. 285; Com. v. Stiles, 97 Pa.Super. 559.

We adopt the following statement by the Commonwealth of the question involved upon this appeal: "Has the foreman of a grand jury in the course of an investigation under the direction of the court [legal] authority to administer an oath to a witness before it?"

As we read the opinion of the court below, it may be thus outlined: At common law all witnesses summoned to appear before any grand jury were sworn in open court "and sent to the grand jury to give their evidence to them in the room to which they [had] retired." This procedure was in force in this Commonwealth (Com. ex rel. Minerd et al. v. Margiotti, 325 Pa. 17, 188 A. 524) as to all grand juries, whether engaged in investigating matters given them in charge by a court or in considering formal indictments submitted to them by the proper prosecuting officer, until it was modified to a limited extent by the Act of April 5, 1826, P. L. 204, reenacted as Section 10 of the Act of March 31, 1860, P. L. 427, 19 PS § 731, and reading: "The foreman of any grand jury, or any member thereof, is hereby authorized and empowered to administer the requisite oaths or affirmations to any witness whose name may be marked by the district attorney on the bill of indictment." (Italics supplied)

As the October, 1937, grand jury was merely an investigating body when the defendant was called to testify before it and no indictment against any person for any offense had been submitted to it with any name or names of witnesses "marked" by a prosecuting officer upon it, the foregoing statutory authorization to the foreman, or any member, of a grand jury to administer the requisite oaths or affirmations to such witnesses could have no application to the administering to the defendant of the oath here involved.

The representatives of the Commonwealth concede, as they are obliged to do under such authorities as Proceedings Against the Earl of Shaftesbury, 8 Howell State Trials 759, 771, and 1 Chitty Criminal Law, 3d American Ed. pp. 311-317-321, that the common law of England was as above stated. See also State v. Fasset, 16 Conn. 457, 464, and 28 C. J 807. They contend, however, "that...