Commonwealth v. Mitchell.

CourtSuperior Court of Pennsylvania
Citation153 Pa.Super. 582,34 A.2d 905
Decision Date09 December 1943

153 Pa.Super. 582
34 A.2d 905


Superior Court of Pennsylvania.

Dec. 9, 1943.

Appeal No. 99, October term, 1943, from judgment of Court of Quarter Sessions, Philadelphia County, September term, 1938, No. 519; Thomas Bluett, Judge.

Proceeding by Commonwealth of Pennsylvania against John Mitchell, alias Joseph Mitchell, for alleged robbery. From an order granting the defendant his absolute discharge under the two term rule, the Commonwealth appeals.

Judgment reversed, and defendant ordered to stand trial.

Franklin E. Barr, Asst. Dist. Atty., and John H. Maurer, Dist. Atty., both of Philadelphia, for appellant.

Angelo L. Scaricamazza and Thomas J. Minnick, Jr., both of Philadelphia, for appellee.



This appeal presents this question: Does a discharge of the defendant in a habeas corpus proceeding under the “two term” rule, established by section 3 of the Habeas Corpus Act of February 18, 1785, 2 Sm.L. 275, and re-enacted by section 54 of the Act of March 31, 1860, P. L. 427, 19 P.S. § 781, prevent trial, or is it a discharge from imprisonment only?

John Mitchell was arrested September 9, 1938, charged with robbery, held without bail, and seven days thereafter was indicted by the grand jury. On October 1, 1938, he was arraigned and plead “not guilty.” His case was listed for trial several times and he and his attorney in each instance were in court, but it was never reached due to the trial of other cases. On February 6, 1939, Mitchell petitioned the court for a writ of habeas corpus, alleging he was entitled to his discharge

34 A.2d 906

under the provisions of section 54 of the Act of 1860, supra. On February 9, 1939, he moved the court to quash the indictment. On February 10, 1939, Judge Bok, after a hearing in the habeas corpus proceeding, discharged the defendant. Judge Finletter on June 8, 1942, dismissed the motion to quash the indictment. No further action was taken until March 17, 1943, when the case was again listed for trial. The defendant, with his counsel, appeared in court. Relying on his discharge in the habeas corpus proceeding he moved, through his attorney, for his absolute discharge under the “two term” rule, claiming that he should not be subjected to a trial. Judge Bluett, against the protest of the Commonwealth, granted defendant's motion and this appeal by the Commonwealth followed.

Section 3 of the Habeas Corpus Act of February 18, 1785, supra, was re-enacted with an immaterial addition in section 54 of the Act of 1860, supra. The pertinent portion provides: “If any person shall be committed for treason or felony, or other indictable offense, and shall not be indicted and tried some time in the next term, session of oyer and terminer, general jail delivery, or other court where the offense is properly cognizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required on the last day of the term, sessions or court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, mentioning their names, could not then be produced; and if such prisoner shall not be indicted and tried the second term, session or court after his or her commitment, unless the delay happen on the application or with the assent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment.” (Italics supplied).

The usual three-month term of criminal courts in other counties was changed to a one-month term in Philadelphia County by the Act of March 13, 1867, P.L. 420, § 1, 17...

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