Commonwealth v. Kirk
| Citation | 340 Pa. 346,17 A.2d 195 |
| Parties | COMMONWEALTH v. KIRK. SAME v. SKOK. |
| Decision Date | 06 January 1941 |
| Court | United States State Supreme Court of Pennsylvania |
340 Pa. 346
COMMONWEALTH
v.
KIRK.
SAME
v.
SKOK.
Supreme Court of Pennsylvania.
Jan. 6, 1941.
[Copyrighted material omitted.]
Appeals Nos. 22-25, May term, 1941, from orders of Superior Court March term, 1940, Nos. 49-52, affirming judgments and sentences of Court of Quarter Sessions of Dauphin County, Nos. 303 and 304, January Sessions, 1939; Wm. M. Hargest, Judge.
James P. Kirk and Victor Skok were convicted of conspiracy to misuse influence of the office of the secretary of highways for personal aggrandizement of the defendants and of a conspiracy to extort bond business and moneys by misuse of powers, authority and influence of the office of the chief engineer of the department of highways, and others, and they appeal.
Judgments affirmed.
The opinion of President Judge Keller herewith adopted is as follows:
The defendants were indicted, tried and found guilty (1) of the charge (No. 303 January Sessions, 1939) of conspiracy with Warren Van Dyke and others to misuse the power and influence of the office of the Secretary of Highways of the Commonwealth of Pennsylvania for the personal aggrandizement of the defendants; and (2) of the charge (No. 304 January Sessions, 1939) of conspiracy with H. H. Ternple and others to extort bond business and moneys from contractors engaged in the performance of highway construction contracts, and from insurance agents and brokers writing bonds insuring such performance, by the misuse and abuse of the powers, authority and influence of the office of the Chief Engineer of said Department of Highways, and others. Each of them was sentenced on the first charge, to pay a fine of $2,500 and costs of prosecution, and on the second, to pay the costs of prosecution. The defendants severally appealed from each sentence.
The assignments of error may be grouped under three heads: (1) Overruling the respective motions to quash, (2) refusing to direct verdicts of "not guilty"; (3) overruling the respective motions in arrest of judgment. The discharge of the defendants' rules for a new trial was not assigned for error; hence we shall not discuss the reasons presented in the motions for new trial. They are, however, adequately discussed in the opinion of President Judge Reese of the Ninth Judicial District, who, by direction of the Supreme Court, presided at the trial. As to the motions in arrest of judgment, it is well settled that insufficiency of evidence gives no support to a motion in arrest of judgment. Com. v. Jones, 303 Pa. 551, 553, 154 A. 480. Judgments can be arrested in criminal cases only for causes appearing upon the face of the record. Com. v. Bateman, 92 Pa. Super. 53, 56; Com. v. Grant, 121 Pa. Super. 399, 183 A. 663; Com. v. Long, 131 Pa.Super. 28, 30, 31, 198 A. 474. The questions before us may, therefore, be boiled down to two: (1) Did the court err in refusing to quash the indictments? (2) Did the evidence in the record require a directed
verdict of acquittal? We shall discuss them in that order.
(1) Overruling motions to quash.
These prosecutions had their origin in the grand jury investigation, conducted in Dauphin County, the seat of the state government, into the acts and conduct of certain public officials, which was considered and passed upon in various phases by the Supreme Court in Re Dauphin County Grand Jury Investigation Proceedings, (No. 1), 332 Pa. 289, 326, 335, 2 A.2d 783; In re Dauphin County Grand Jury Investigation Proceedings (No. 2), 332 Pa. 342, 346, 2 A.2d 802, 804; In re Dauphin County Grand Jury Investigation Proceeding, (No. 3), 332 Pa. 358, 2 A.2d 809. As a result, Honorable Paul N. Schaeffer, President Judge of the Twenty-Third Judicial District, consisting of the County of Berks, was directed by the Supreme Court to lay aside his regular judicial duties and proceed to the Twelfth Judicial District, comprising the County of Dauphin, with Harrisburg as the county seat, there to preside over and take control of the proposed investigation by the Grand Jury of Dauphin County, with the same power and authority as is vested in the law judges of the Twelfth Judicial District.
During the course of that investigation, evidence came into the possession of the district attorney, which, in his opinion, warranted an inquiry and investigation into whether these defendants in conjunction with Warren Van Dyke, then Secretary of Highways (now deceased), and others had conspired to misuse the power and influence of the office of Secretary of Highways for the personal aggrandizement of the defendants; and together with H. H. Temple, then Chief Engineer of the Department of Highways, had conspired to extort bond business and moneys from contractors engaged in the performance of highway construction contracts, and from insurance agents and brokers writing performance bonds on such contracts. Upon his petition setting forth the foregoing, an order was made by Judge Schaeffer, presiding over said grand jury investigation, amplifying the scope of the matters originally directed to be investigated by it, so as to include the conduct of these defendants and others in connection with the obtaining and writing of performance bonds on state highway construction contracts. On the conclusion of its investigation, the grand jury, in a report made on February 27, 1939, designated as its second presentment, recommended that the matters so found by them and reported be referred for consideration to the current grand jury.
Pursuant thereto, the district attorney, with leave of the court first obtained, presented these indictments to the regular, current January, 1939, grand jury, which, on March 9, 1939, returned a true bill against Kirk and Skok on the indictment to No. 303, and a true bill against Kirk, Skok and Temple on the indictment to No. 304.
On May 1, 1939, the defendants moved to quash the indictments on the following grounds:
(1) Because of the presence during the taking of the testimony before the investigating grand jury of two special assistants to the district attorney, appointed pursuant to the order of the Court of Quarter Sessions of Dauphin County, who participated in the examination of witnesses; for the reason (a) that they were not lawfully appointed, and (b) thereby the secrecy of the grand jury was invaded, and the constitutional and statutory rights of the defendants were violated.
(2) The secrecy of the grand jury was also violated in that three other special assistants to the district attorney, alleged to have been unlawfully appointed as aforesaid, were assigned to work in conjunction with the grand juries making the investigations and considering the indictments, and had access to and did obtain information concerning the proceedings before each grand jury.
(3) The secrecy of the investigating grand jury was further violated, in that two stenographers regularly, by turns, took stenographic notes of the testimony before such grand jury and dictated them onto wax cylinders in dictaphone machines; and two dictaphone operators transcribed such testimony into typewriting, making several copies thereof, which were accessible, with the consent of the district attorney, to other persons who examined them in whole or in part.
(4) The district attorney and his representatives took an undue interest in the actions of the investigating grand jury and the indicting grand jury, exceeding their authority.
(5) The safeguards surrounding the grand jury were breached by said appointments, intrusions and conduct of those purporting to be special assistants of the district
attorney, which influenced the grand juries making the investigation and considering the indictments, respectively, in believing that the Commonwealth desired the finding and return of the indictments.
(6) The indictments were not based upon a complaint made before a committing magistrate, etc, and the offenses charged were not of such a nature, nor was there such pressing necessity, as to require or justify the extraordinary intervention of the court and an investigation and indictment, respectively, by a grand jury without a prosecution before a magistrate.
(7) The offenses as charged in the indictments were barred by the statute of limitations.
(8) The indictments are duplicitous.
(9) The indictments fail to charge any indictable offense.
By permission of the court, the defendants were allowed to take testimony in support of the reasons filed which were outside the record, and the matters were fully argued. The court, acting through Judge Hughes, President Judge of the Twenty-Seventh Judicial District, specially presiding by direction of the Supreme Court, on May 29, 1939, overruled the motions to quash, filing an extended opinion in the case of Com. v. David L. Lawrence and others, 47 Dauph. Co.Rep. 376, where a similar motion was pending, and a supplementary opinion in these cases. 47 Dauph.Co.Rep. 411.
Judge Hughes' opinion (47 Dauph.Co. Rep. 376) is too lengthy to be included in this opinion or in the reporter's statement of the case, but it constitutes a full and complete justification of the court's action in overruling the motion to quash.
The first five reasons assigned in the motion to quash have been fully considered and disposed of by Judge Baldrige, speaking for this court in Com. v. Brownmiller, Pa.Super, 14 A.2d 907, opinion filed July 19, 1940, where identically the same points were raised in a motion to quash. We shall not repeat what was so well said there, but refer to it, as if a part of this opinion.
However, as respects the alleged violation of the secrecy of the grand jury by the special assistants to the district attorney, the two stenographers and...
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