Commonwealth v. Jester

• Decision Date: 12 February 1917
• Docket Number: 274
• Citation: 100 A. 993,256 Pa. 441
• Parties: Commonwealth v. Jester, Appellant
• Court: Pennsylvania Supreme Court

100 A. 993

256 Pa. 441

Commonwealth v. Jester, Appellant

No. 274

Supreme Court of Pennsylvania

February 12, 1917

Argued January 4, 1917

Appeal, No. 274, Jan. T., 1916, by defendant, from judgment of Superior Court, Oct. T., 1915, No. 186, affirming judgment of O.T. Philadelphia Co., May Sessions, 1915, No. 583 sustaining conviction on indictment for rape in case of Commonwealth of Pennsylvania v. Benjamin Jester. Reversed.

Appeal from Superior Court.

Defendant was indicted for rape.

The facts appear by the opinion of the Supreme Court and in Commonwealth v. Jester, 63 Pa.Super. 291.

Verdict of guilty. Defendant was sentenced to imprisonment of not less than two years or more than three years in the Eastern Penitentiary. The Superior Court affirmed the sentence of the Court of Oyer and Terminer. Defendant appealed.

Error assigned, among others, was in refusing defendant's motion for a new trial.

The judgment is reversed and a new trial granted.

Walter Thomas, for appellant. -- An appellate court can hear evidence aliunde the record: Mix v. North American Co., 209 Pa. 636; Commonwealth v. Fisher, 226 Pa. 189; Gosline v. Place, 32 Pa. 520; Commonwealth v. Gibbons, 9 Pa.Super. 527.

Defendant was entitled to be represented by Jacobs v. Commonwealth 5 S. & R. 315; Prine v. Commonwealth, 18 Pa. 103.

In the present case, defendant did not waive his right to be represented: Prine v. Commonwealth, 18 Pa. 103; Jacobs v. Commonwealth, 5 S. & R. 315; Crain v. United States, 162 U.S. 625; Grigg v. People, 31 Mich. 471.

Defendant was entitled to notice of the time set for his trial: Galpin v. Page, 85 U.S. 350; Hovey v. Elliott, 167 U.S. 409; Roller v. Holly, 176 U.S. 398; Commonwealth v. Lehigh Valley R.R. Co., 165 Pa. 162.

James Gay Gordon, Jr., Assistant District Attorney, with him Samuel P. Rotan, District Attorney, for appellee.

Before BROWN, C.J., MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE FRAZER:

Defendant was arrested May 29, 1915, and held for court, without bail, on an information charging a felony. On June 2, 1915, a true bill was found against him, and two days later he was brought from the county prison to the city hall, Philadelphia, and placed on trial, without being represented by counsel, and without opportunity to prepare his defense. In his petition for allowance of appeal to this court, as well as in his petition for a supersedeas to the Superior Court, and his motion for a new trial in the Court of Oyer and Terminer, defendant averred he had no notice or knowledge that he was to be placed on trial, and was ignorant of his rights, and of court procedure. He was found guilty, and sentenced to a term of not less than two, or more than three, years in the Eastern Penitentiary. A motion for a new trial was overruled, and defendant appealed to the Superior Court, which court made the appeal a supersedeas, and admitted him to bail. The judgment of the court below was affirmed by the Superior Court, and, on petition by defendant, an appeal to this court was allowed. The only question raised is whether or not, in refusing to grant a new trial on the ground that defendant was forced to stand trial without opportunity to be represented by counsel or procure witnesses to testify in his behalf, the trial judge abused his discretion.

The opinion of the Superior Court is based on the ground that the facts disclosed by the record fail to clearly show an abuse of discretion on the part of the court below, either on the trial of the case, or in dismissing the motion for a new trial. From the facts set forth in the motion for a new trial, and the affidavit accompanying the petition to the Superior Court, and also to this court, for an allowance of an appeal, it appears defendant retained Edward A. Kelly Esq., of the Philadelphia bar, to represent him at the trial, and that, on June 4, 1915, the day of the trial, Kelly was actually engaged in room 696, city hall, in entering bail for defendant's release from custody, at the time defendant was being tried in room 453. No notice was given either defendant, or his attorney, of the date of trial, and the latter, in his affidavit, states he had no knowledge whatever that the case was to be tried at that time. Depositions showing these facts are printed in the appendix of appellant's paper book. There is nothing, however, in the docket entries, or in any part of the record, to indicate they were filed of record, or taken pursuant to rule or regular practice; they were apparently taken and used in support of a petition for a writ of habeas corpus, presented to, and refused by, the Superior Court. While part of the proceedings in the lower court, these papers form no part of the present record: Road in Little Britain, 27 Pa. 69; Shisler v. Keavy, 75 Pa. 79; Lee's Est., 18 Pa.Super. 513; Wyatt v. Szymanski, 38 Pa.Super. 525. Nevertheless, counsel for the Commonwealth, on argument of the case, frankly...