Commonwealth v. Kramer
| Decision Date | 02 October 1941 |
| Docket Number | 54-1941 |
| Citation | 146 Pa.Super. 91,22 A.2d 46 |
| Parties | Commonwealth v. Kramer, Appellant |
| Court | Pennsylvania Superior Court |
Argued May 6, 1941.
Appeal from judgment of Q. S. Phila. Co., April Sessions, 1940, No 114, in case of Commonwealth v. Anna Kramer.
Indictment in three counts, charging defendant with violation of laws regulating the possession, sales, etc. of alcoholic liquors. Before Alessandroni, J., without a jury.
The facts are stated in the opinion of the Superior Court.
General verdict of guilty and judgment and sentence thereon. Defendant appealed.
Error assigned, among others, was refusal of new trial.
Judgment affirmed.
B. D Oliensis, with him Thomas Nardello, for appellant.
Raymond A. Speiser, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.
A true bill of indictment, in three counts, was returned against Anna Kramer, charging her with violating the laws regulating the possession, sale, etc., of alcoholic liquors (Act of November 29, 1933, Sp. Sess. P. L. 15, and its amendments).
On September 12, 1940, she was arraigned in court and pleaded 'not guilty'; and the same day, pursuant to the Act of June 11, 1935, P. L. 319, she signed and filed, with the consent of the court, the district attorney, and her attorney of record, a waiver in writing of her right to a trial by jury, and elected to be tried by a judge without a jury according to law. [1]
Accordingly the trial proceeded before Judge Alessandroni without a jury. At the close of the Commonwealth's case, the defendant demurred to the evidence on the ground that the allegata and probata did not agree. This having been overruled, the defendant offered her testimony, wherein she admitted the possession of the liquor testified to by the Commonwealth's witnesses. After hearing the evidence on both sides, the trial judge rendered a general verdict of guilty as indicted, in accordance with the procedure prescribed in the second section of the Act of 1935, supra. A motion for a new trial was refused and sentence was pronounced. Defendant appealed to this court.
The appeal raises two questions: 1 -- The constitutionality of the Act of June 11, 1935, P. L. 319, which permits the waiver of trial by jury in certain criminal cases. 2 -- Was there such a variance between the indictment and the evidence as to require the demurrer to the evidence on that ground to be sustained?
It is proper to note that the constitutionality of the Act of 1935 was not raised or questioned in the court below, either in the motion for new trial or elsewhere. Section 2 of the Act provides, inter alia, that the "said trial judge may, after hearing the case, order the withdrawal or waiver of trial by jury withdrawn, and order and direct that the case be tried before a jury." Had the question been raised in the lower court, the trial judge might have ordered the withdrawal of the waiver of trial by jury and directed that the case be tried before a jury. By such inaction defendant may have lost the right to raise the question now. See Com. ex rel. Ross v. Egan, 281 Pa. 251, 126 A. 488. However, we need not pass on that question for we are of opinion that the Act is constitutional.
The clauses of our Constitution, which appellant claims were violated are the sixth and ninth sections of Article I, (Bill of Rights), as follows:
As bearing on the construction to be given these sections, the appellant also cites Article v, sec. 27, as follows:
We have given all these clauses full and careful consideration and are of opinion that they do not require us to hold the Act of 1935, supra, to be unconstitutional.
We will take up the sections in order.
(1) What is the effect of the provision, "Trial by jury shall be as heretofore, and the right thereof remain inviolate"? This clause of the Constitution appeared verbatim in the Constitutions of 1838 (Art. IX, sec. 6) and 1790 (Art. IX, sec. 6). The corresponding provision in the Constitution of 1776 was found in "Clause Eleventh" of the Declaration of Rights, [2] and "Section the Twenty-fifth" of the Plan or Frame of Government, to wit:
The eleventh clause, of the Constitution of 1776, above quoted, is limited to "controversies respecting property" and "suits between man and man," which are civil causes. But the twenty-fifth section of the same Constitution, and section 6 of Article I of the Constitution of 1873 [Art. IX, sec. 6 of the Constitutions of 1790 and 1838] are general, and the 'Trials by Jury' referred to therein apply to both civil and criminal cases.
It is to be noted, however, that it is the right to a trial by jury which is to remain inviolate in the Constitutions of 1790, 1838 and 1873; and it is the right of the parties in a civil action to a trial by jury, (which ought to be held sacred), which was secured under the Eleventh Clause of the Constitution of 1776. Most civil rights can be waived by the interested parties, except where the public policy of the Commonwealth is declared to be opposed to such waiver. The privilege of waiving this right by the parties to civil actions, without any allowance by the law-making body or the consent of the court, was specifically secured by section 27 of Article v of the present Constitution above-quoted, which there appears for the first time in constitutional form, and definitely makes certain, what was before inferable by implication. Voluntary arbitration of civil actions, in which the award or report of the referees to whom the case was submitted had the same effect as a verdict given by twelve men, was recognized as early as 1705 (Act of January 12, 1705, 1 Sm. L. 50); and compulsory arbitration in civil cases was provided for by the Act of June 16, 1836, P. L. 717, secs. 8 to 38. See also, Katakura & Co. v. Vogue Silk Hosiery Co., 307 Pa. 544, 161 A. 529.
(2) We come, then, to the clause relating to criminal prosecutions. In our present Constitution -- and also in the Constitutions of 1790 and 1838 -- this reads, [3] "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 prosecutions by indictment or information, [4] a speedy public trial by an impartial jury of the vicinage; ....
The corresponding Ninth Clause in the Constitution of 1776, was in this form: "That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty."
The reference to the 'jury' in the ninth clause and in the twenty-fifth section of the Constitution of 1776, before quoted, evidently related back, to the Frame of Government of the Province of Pennsylvania (May 5, 1682), which is found in the "Charter to William Penn and Laws of the Province of Pennsylvania" published in 1879, under the direction of John Blair Linn, Secretary of the Commonwealth, often referred to as "The Duke of Yorke's Book of Laws," because they constitute the first part of the book. On page 100 of this volume is found the following:
We have perhaps devoted more time than was necessary to the Constitutions of 1776, 1790 and 1838, but this was done in the hope of shedding some light on the meaning to be given the appropriate clauses in our present Constitution for it is the latter...
To continue reading
Request your trial