Commonwealth v. Lehman

Decision Date28 November 1932
Docket Number297
Citation164 A. 526,309 Pa. 486
PartiesCommonwealth v. Lehman, Appellant
CourtPennsylvania Supreme Court

Argued September 26, 1932

Appeal, No. 297, Jan. T., 1932, by defendant, from sentence of O. & T. Montgomery Co., Sept. Sessions, 1931, No. 313, in case of Commonwealth of Pennsylvania v. Jacob Lehman, alias Jake Lehman. Affirmed.

Indictment for murder. Before WILLIAMS, P.J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the first degree, fixing penalty of death and sentence thereon. Defendant appealed.

Errors assigned were to judgment of sentence and to various rulings and to the charge, as stated in the opinion of the Supreme Court, quoting record seriatim.

The judgment is affirmed, and the record is remitted for purposes of execution according to law.

Charles D. McAvoy, with him Edward F. Kane, for appellant. -- A special prosecutor may be appointed only for cause; and such cause must be authorized by the statute.

While a district attorney retains his office he should not be deprived of the right to appear in court as such and represent the Commonwealth: Snyder's Case, 301 Pa. 276.

Section 907 of the Act of 1929 is unconstitutional in that notice of it is not given in the statute: Potter Co. Water Co. v Austin Boro., 206 Pa. 297; Com. v. Hazen, 207 Pa. 52; Dorsey's App., 72 Pa. 193.

The statute contains more than one subject and is void: Com v. Dickinson, 1 W.N.C. 185; Perkins v. Phila., 156 Pa. 554.

The declarations of Spanish were not properly admissible as dying declarations: Kilpatrick v. Com., 30 Pa. 198.

The declarations of Spanish were not properly admissible as part of the res gestae: Com. v. Werntz, 161 Pa. 591; Kane v. Com., 109 Pa. 541; Hanover R.R. v. Coyle, 55 Pa. 396; Smith v. Stoner, 243 Pa. 57.

The Commonwealth ought not to have been permitted to put in rebuttal evidence which it deliberately omitted from its case in chief: Stetson v. Croskey, 52 Pa. 230; Richardson v. Stewart, 4 Binn. 198.

It was error to permit the Commonwealth to question its own witness as to prior contradictory statements without offer of proof of such other statements: Farmers' Mutual Ins. Co. v. Bair, 87 Pa. 124; Com. v. Delfino, 259 Pa. 272.

Defendant's point for charge on intoxication, refused by the trial judge, was taken almost verbatim from Com. v. Hart, 2 Brewster 546.

A charge, especially in a criminal prosecution, should be a calm and dispassionate summation of the evidence. A charge which does not conform to these requirements is error: Linn v. Com., 96 Pa. 285; Com. v. Meads, 29 Pa.Super. 321.

Samuel H. High, Special Prosecutor appointed by the attorney general, for appellee. -- A defendant who has made no prior objection thereto may not after a verdict complain of the appointment of a special prosecutor.

Section 907 of the Act of 1929 is constitutional: Snyder's Case, 301 Pa. 288; Com. v. Havrilla, 38 Pa.Super. 292.

The statements made by Spanish were admissible as part of the res gestae: Com. v. Gardner, 282 Pa. 458; Smith v. Stoner, 243 Pa. 58.

The declarations made in the hospital were admissible as dying declarations: Com. v. De Leo, 242 Pa. 510; Com. v. Puntario, 271 Pa. 501.

The charge of the court on intoxication was correct: Com. v. Detweiler, 229 Pa. 304; Com. v. Eyler, 217 Pa. 512; Com. v. Walker, 283 Pa. 469.

The charge of the court was not unfair: Com. v. Parker, 294 Pa. 144.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE LINN:

The first subject of complaint is that the court erred "in requesting the attorney general to appoint a special prosecutor to conduct the prosecution," and in permitting the appointee to "try the indictment against the appellant as counsel for the Commonwealth, because the request and appointment were not authorized by section 907 of the Act of April 9, 1929, article IX, P.L. 177, 239," 71 PS, page 108, section 297.

The point is without merit, if we assume, without deciding, that it may be made by defendant. We note, first, that appellant made no objection until after verdict; second, that the superseded district attorney made none. Section 907 provides: "Special Attorneys in Criminal Cases. -- When the president judge, in the district having jurisdiction of any criminal proceedings before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the attorney general to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the attorney general is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate, charge, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned. He shall take the oath of office required by law to be taken by district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon them by law."

That provision is the last of several statutes regulating the temporary displacement of the district attorney, beginning with the Act of March 12, 1866, P.L. 85, 16 PS, section 3432, and including the Act of May 2, 1905, P.L. 351, 71 PS, section 817 et seq. and the Act of June 7, 1923, article IX, P.L. 498, 550. Appellant says that "a district attorney is a constitutional officer, made so by section 1 of article XII of the Constitution of Pennsylvania which specifies who shall be considered county officers," and that by section 2 "All county officers shall be elected at the general elections and shall hold office until their successors are duly elected and qualified, but all vacancies in that office shall be filled as provided by law, that is by section 3 of the Act of May 3, 1850, P.L. 654, 16 PS, section 1692, by the judges of the court of common pleas of the county." It is accordingly contended that there was no vacancy in the office, and that the district attorney was neither incapacitated nor disqualified to act. If we should take judicial notice that the office was not vacant, we should still be without evidence that the district attorney was neither incapacitated nor disqualified. As the Constitution does not prescribe the duties of the district attorney, it has been held that the legislature may regulate the performance of the duties of the office and provide for cases in which it would be improper for the elected officer to act: Com. v. McHale, 97 Pa. 397; Com. v. Havrilla, 38 Pa.Super. 292; see, also Snyder's Case, 301 Pa. 276, 152 A. 33. We gather from the briefs (the record contains nothing on the subject) that the president judge, pursuant to the statute, requested the attorney general to appoint an attorney to supersede the district attorney for the preparation and trial of this case, and that the learned counsel who appeared for the Commonwealth was accordingly appointed. There is no suggestion of abuse of discretion in the action of the court.

A second objection is that the title to the statute violates article III, section 3, of the Constitution, requiring that the subject of legislation "be clearly expressed in its title;" that "the subject-matter of that section, or at least the most important part of it, is not included in or germane to the title of that Code, and because the section contains three distinct subjects." The title to the Administrative Code is quoted in the margin. [*] The words in the title "defining the powers and duties of the governor and other executive and administrative officers and of the several administrative departments . . ." clearly express the subject of the legislation; properly understood, it is but one subject, as we held in Com. ex rel. v. Snyder, 279 Pa. 234, 242, 123 A. 792. The attorney general is an executive officer: Constitution, article IV, section 1. Prior to the Act of May 3, 1850, P.L. 654, 16 PS, section 1691, the attorney general was represented in each county by his deputy who conducted criminal prosecutions; by that statute the office of district attorney was created and that officer was charged with the performance of the duties theretofore performed by the deputy attorney general. Thereafter the prosecutor was elected instead of appointed, but the power of general supervision vested in the attorney general over the performance of a district attorney's duties in the county was not taken away; that power remained, and it is matter of general information that the power has been exercised from time to time when necessary. In part, this supervision is now regulated by section 907 of the Administrative Code. Consideration of the historic development in this Commonwealth of the office of attorney general and the office of district attorney at once distinguishes the cases cited by appellant from other states said to hold that the legislature may not provide for temporarily displacing prosecuting attorneys.

The third objection is that the special prosecuting attorney was not sworn according to law. For present purposes, it is sufficient to say that the record shows that he took the oath in proper form in open court and that it was duly filed in the office of the prothonotary: Section 2, Act of May 3, 1850, P.L. 654; section 1, article VII, Constitution; section 53, article III of the Act of May 2, 1929, P.L. 1278, 1288, 16 PS, section 53.

Consideration of the remaining complaints requires some statement of the facts and circumstances incident to the murder, and we...

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1 cases
  • Commonwealth v. Lehman
    • United States
    • Pennsylvania Supreme Court
    • 28 Noviembre 1932
    ... 164 A. 526309 Pa. 486 COMMONWEALTH v. LEHMAN. Supreme Court of Pennsylvania. Nov. 28, 1932. 164 A. 527 Appeal from Court of Oyer and Terminer, Montgomery County; J. Ambler Williams, President Judge. Jacob Lehman, alias Jake Lehman, was convicted of murder in the first degree, and he appeal......

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