Commonwealth v. Klein

• Decision Date: 14 July 1909
• Docket Number: 188-1909
• Citation: 40 Pa.Super. 352
• Parties: Commonwealth v. Klein, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 352

Commonwealth v. Klein, Appellant

No. 188-1909

Superior Court of Pennsylvania

July 14, 1909

Argued April 19, 1909 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from order of Q. S. Allegheny Co.-1909, No. 23 imposing fine and imprisonment for contempt of court in case of Commonwealth v. John F. Klein.

Attachment for contempt. Before Davis, P. J.

From the record it appeared that on March 12, 1909, the following suggestion was made to the court of quarter sessions:

W. A. Blakeley, district attorney of Allegheny county, respectfully represents:

1. That at the February Sessions, 1909, of the court of quarter sessions of Allegheny county, certain indictments were tried, charging the defendants, inter alia, with bribery, corrupt solicitation and conspiracy to defraud the city of Pittsburg. That these trials resulted in the conviction of W. W. Ramsey of corrupt solicitation and bribery, and John F. Klein of bribery, and John F. Klein, William Brand and J. C. Wasson of conspiracy, and a plea of nolle contendere to the crime of corrupt solicitation and bribery was entered by one A. A. Vilsack.

2. That at the trial of said causes, the testimony indicated that money had been paid by banks in the city of Pittsburg, in addition to the bank named in said indictments, for their selection as city depositories, and that open and extensive bribery and corruption had been practiced in the passage of the ordinance relating to the selection of bank depositories, as well as ordinances relating to many other matters which had been before and received the consideration of council. That testimony was also given to indicate that in and about the influencing of members of council to obtain their vote for the passage of the bank depository ordinance, moneys, in various amounts, were paid to eighty-eight councilmen, and further, that other moneys were paid to councilmen for their votes and support of a certain filtration deal.

3. That it has been publicly asserted in the public prints of the city of Pittsburg and elsewhere, that bribery had been resorted to in securing the passage of ordinances vacating streets in said city, to wit: ordinance relating to the vacation of South Seventh street, the vacation of Home street, the vacation of Auburn street, the exoneration of certain persons from sewer assessment, of water rents, the vacation of land on the north side of Rose street, the purchase from Chas. O. Lappe of certain property, and the passage of two ordinances providing for the improvements of Rose street.

4. It has further been publicly asserted and is common talk upon the streets and in business houses in said city that bribery and corruption was used to secure the passage of divers other ordinances and to prevent the passage of divers other ordinances.

5. That the mayor of the city of Pittsburg, Honorable George W. Guthrie, has publicly asserted that he is in possession of evidence relating to councilmanic graft and corruption in the city of Pittsburg.

6. That the district attorney of Allegheny county has no power to summon witnesses before the grand jury, or to investigate the same by placing witnesses in possession of information in regard to said alleged bribery and corruption, under oath, nor has he legal authority to submit the matters to the grand jury for their investigation, the said matters pointing to general corruption and bribery and not to the guilt of any one particular person.

7. That the said W. A. Blakeley, district attorney, believes the above matters are public notoriety and are of such a nature, if true, as to affect the body corporate at large rather than any individual, and recognizing his inability under the law to satisfactorily and thoroughly investigate the said public matters, he deems it his duty to submit this suggestion to the court in order that the court, if convinced that the matter is of public notoriety and import and affects the public rather than the individual, may make such order in the premises with reference to submitting the matter to the grand jury as to it shall seem best and proper, both under the circumstances and the law.

The court made the following offer:

And now, to wit: March 12, 1909, the within petition presented in open court and upon due consideration thereof, it is ordered and directed that the said petition or suggestions be filed, and the district attorney be authorized to proceed with the investigation prayed for, and also be empowered to issue such subpoenas or processes as may be necessary to compel and procure the attendance of such witnesses who may in the judgment of the district attorney be competent to give evidence relevant to matters under investigation.

Subsequently the following subpoena was issued and served on John F. Klein:

" Allegheny County, ss: Harry M. Merit.

" The Commonwealth of Pennsylvania. To Wm. Velte, G. W. Heppenstall, Harry P. Dilworth and John F. Klein, greeting:

" We command you, that laying aside all business and excuses whatsoever, you and each of you be and appear in your proper person before our Grand Jury, at Pittsburg, there to be held for the county aforesaid forthwith on the 16th day of March, A.D. 1909, at 9:30 o'clock A. M., to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of councilmen in the City of Pittsburg in our said Court depending, and then and there to be tried between the Commonwealth and a person or persons unknown, defendant on the part of the Commonwealth. And herein fail not, under the penalty of one hundred pounds."

Klein refused to appear before the grand jury on the ground apparently that he was not obliged to testify to matters which would incriminate himself. An attachment was issued against him, and he was adjudged guilty of contempt of court and sentenced to pay a fine of $ 100, and undergo an imprisonment of thirty days.

Subsequently on a writ of habeas corpus from the Superior Court, Klein was permitted to enter bail in the sum of $ 2,500, pending the hearing of the appeal.

Errors assigned were the issuance of the subpoena, the issuance of the attachment, the conviction for contempt, and the sentence to fine and imprisonment.

Marron & McGirr and John S. Robb, Jr., for appellant. -- The lower court was without jurisdiction to summon appellant to appear before the grand jury then inquiring in the county of Allegheny for the purpose of compelling him to testify to bribery and solicitation of bribery, and that the inquiry then being made by the grand jury was not a " lawful investigation or judicial proceeding" under sec. 32, art. III, of the constitution of Pennsylvania.

The subpoena in this case was not lawful: Hartranft's App., 85 Pa. 433; Com. v. Smith, 185 Pa. 553.

The court had no jurisdiction to fine and commit.

Warren I. Seymour, with him William A. Blakeley and Robert T. McElroy, for appellee. -- The court of quarter sessions had jurisdiction of the subject-matter.

Appellant was guilty of contempt of court in refusing to appear before the grand jury: Lloyd & Carpenter's Case, 3 Clark, 188; Com. v. Dietrich, 7 Pa.Super. 515; Com. v. Hurd, 177 Pa. 481; Com. v. Smith, 185 Pa. 553.

The subpoena was a proper subpoena: Hale v. Henkel, 201 U.S. 43; O'Hair v. People, 32 Ill.App. 277; Feree v. Strome, 1 Yeates, 303; Com. v. Bell, 145 Pa. 374; Com. v. Roberts, 2 Clark, 340; Kelley's Election Case, 200 Pa. 430.

The sentence in this case was proper: Com. v. Perkins, 124 Pa. 36; Williamson's Case, 26 Pa. 9.

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

OPINION

RICE, J.

1. After describing the ordinary mode of instituting criminal proceedings, namely, by warrant of arrest founded on probable cause, supported by oath or affirmation, followed by a hearing before a committing magistrate, Judge King said " It is the fitness and propriety of the ordinary mode of criminal procedure, its equal justice to accuser and accused, that render it of almost universal application in...