Commonwealth v. Mitchell

• Decision Date: 09 December 1943
• Docket Number: 99-1943
• Citation: 153 Pa.Super. 582,34 A.2d 905
• Parties: Commonwealth, Appellant, v. Mitchell
• Court: Pennsylvania Superior Court

34 A.2d 905

153 Pa.Super. 582

Commonwealth, Appellant, v. Mitchell

No. 99-1943

Superior Court of Pennsylvania

December 9, 1943

Argued October 5, 1943.

Appeal from judgment of Q. S. Phila. Co., Sept. T., 1938, No. 519 in case of Commonwealth v. John Mitchell.

Indictment charging defendant with robbery. Before Bluett, J.

Motion by defendant for absolute discharge granted. Commonwealth appealed.

Judgment reversed.

Franklin E. Barr, Assistant District Attorney, with him John H Maurer, District Attorney, for appellant.

Angelo L. Scaricamazza, with him Thomas J. Minnick, Jr., for appellee.

Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ. (Reno, J., absent).

OPINION

Baldrige, J.

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 PS § 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 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 PS § 471. Section 4 of that act, 17 PS § 473, reads as follows: "Nothing herein contained shall be construed, or taken, to affect the act of February 18, 1785, as now applicable to said court; and no person shall be bailed, under said act, except upon the expiration of the second term, herein created, [i. e. two months] nor be discharged, under said act, except upon the expiration of the fourth term, herein created [i. e. four months]."

No decision of an appellate court in this state on the question we are now considering has been cited and we have found none. In other jurisdictions there is a conflict in the decisions as to whether a release on habeas corpus of a prisoner held in jail for trial beyond one or more terms, is a final release, or one from imprisonment only: 25 Am. Jur., Habeas Corpus, § 157, citing In Re Begerow, 136 Cal. 293, 68 P. 773, 56 L. R. A. 528, holding a discharge is not final, and People ex rel Nagel v. Heider, 225 Ill. 347, 80 N.E. 291, 11 L. R. A. (NS) 257, contra.

In Morse v. U.S., 267 U.S. 80, 85, 86, 69 L.Ed. 522, 45 S.Ct. 209, the Supreme Court stated that while the authorities passing upon the discharge of a defendant in a habeas corpus proceeding are not entirely harmonious, a rule may be deducible therefrom that when the proceedings are preliminary and ancillary to the trial upon the merits, "a decision discharging the prisoner neither annuls the indictment nor blots out the offense."

In U. S. v. Cadarr, 197 U.S. 475, 478, 49 L.Ed. 842, 25 S.Ct. 487, the court said that "generally speaking where the statute has provided that the discharge shall be from imprisonment or bail, without other language, it has been held not to operate as a statute of limitation."

Judge Mitchell, later Chief Justice, when sitting on the Common Pleas, in Commonwealth v. Brown, 11 Phila. 370, in discussing the act of 1785 said that "all circumstances of physical, moral, or legal necessity, which prevent trial, are exceptions which take a case out of the statute."

The opinions in our lower courts, which have had this matter for consideration, are not in accord. Only in a very few cases was the question of an absolute discharge squarely raised. Judge Brewster in Commonwealth v. McBride and Graveland, 2 Brewster 545, where the defendant was charged with homicide, held his discharge from imprisonment for want of trial after two terms (four in Philadelphia County) was absolute.

In Commonwealth v....