Commonwealth v. Staush

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. CHIEF JUSTICE BROWN:
• Citation: Commonwealth v. Staush, 256 Pa. 620, 101 A. 72 (Pa. 1917)
• Decision Date: 26 February 1917
• Docket Number: 6
• Parties: Commonwealth v. Staush, Appellant

101 A. 72

Commonwealth v. Staush, Appellant

256 Pa. 620

No. 6

Supreme Court of Pennsylvania

February 26, 1917

Argued February 5, 1917

Appeal, No. 6, Jan. T., 1917, by defendant, from judgment and sentence of O.T. Luzerne Co., July Sessions, 1916, No. 239 in case of Commonwealth v. John Staush. Reversed.

Indictment for murder.

The facts appear by the opinion of the Supreme Court.

The lower court found defendant guilty of murder of the first degree and imposed sentence of death. Defendant appealed.

Errors assigned, among others, were the participation in the deliberations of the court of the president judge, who did not hear the testimony of witnesses, the subsequent writing of the opinion by such president judge finding defendant guilty of murder of the first degree, and the pronouncing of the sentence of death by him.

Judgment reversed and procedendo awarded, with leave to the prisoner to renew in the court below his motion for leave to withdraw his plea of guilty.

M. J. Torlinski, with him George Howarth, for appellant. -- A judge who does not hear the evidence cannot render a valid judgment in such a case notwithstanding the testimony may have been written down and read by him, nor may he make any finding of fact in a cause tried by another judge: In re Sullivan, 77 Pac. Repr. 153.

The court erred in permitting its president judge to take part in its deliberations without having been present during the trial.

Frank P. Slattery, District Attorney of Luzerne County, with him Edwin Shortz, Jr., Assistant District Attorney, for appellee. -- The president judge properly took part in the deliberations: Pierce's License, 61 Pa.Super. 397; Com. v. Addison, 4 Dallas 225; Com. v. Green, 126 Pa. 531; Schwartz v. Stock, 26 Nev. 128 (65 Pac. Repr. 351); Com. v. Dunleavy, 16 Pa.Super. Ct. 380.

Before BROWN, C.J., MESTREZAT, STEWART, MOSCHZISKER and WALLING, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

John Staush, the appellant, entered a plea of guilty to an indictment charging him with murder, and it thereupon became the duty of the court below, under Section 74 of the Act of March 31, 1860, P.L. 382, to "proceed, by examination of witnesses, to determine the degree of the crime and to give sentence accordingly." Three of the five judges of that court met to perform the duty imposed upon it, and witnesses were examined before them. At the examination the Commonwealth was represented by the district attorney, and the prisoner, with his counsel, was present. The testimony was taken down by the court stenographer, whose transcript of the same was duly approved by one of the judges and ordered to be filed. After the hearing, and before the three judges had reached any conclusion as to the degree of the prisoner's guilt, they asked the president judge of the court -- who had not been present at the examination of the witnesses -- to join them in their consideration of the testimony taken, for the purpose of fixing the degree of the crime. After reading the evidence, he took part in their deliberation, and found that the prisoner was guilty of murder of the first degree. Subsequently he wrote the opinion of the court, fixing the degree of guilt, and pronounced the judgment of death. The real error of which the appellant complains -- and the only one upon which we need pass -- is the action of the court below in having its president judge consult with his three colleagues over a most solemn question, involving life, without his having seen or heard the witnesses upon whose testimony it was to be determined.

A tribunal, specially designated by the legislature, fixes the...