Commonwealth v. Storey

• Decision Date: 01 March 1912
• Docket Number: 91-1912
• Citation: 49 Pa.Super. 282
• Parties: Commonwealth v. Storey, Appellant
• Court: Pennsylvania Superior Court

49 Pa.Super. 282

Commonwealth v. Storey, Appellant

No. 91-1912

Superior Court of Pennsylvania

March 1, 1912

Argued November 13, 1911 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Cambria Co., Sept. Term, 1911, No. 124, on verdict of guilty in case of Commonwealth v. Henry Wilson Storey.

Indictment for libel. Before Shull, P. J., specially presiding.

From the indictment it appeared that the libelous publication was as follows:

The law authorizes the court and the district attorney to appoint a competent man as county detective, who shall be the confidential officer of the judge and the said district attorney, to discover and prosecute, if necessary, all persons who commit crimes.

A few years ago one who shall be known, for present purposes, as " John H. Burroughs," was commissioned as that confidential officer for the present officials. Within a short period after he began his duties he was accused of demanding and receiving hush money from four unfortunate scarlet women of Johnstown, promising that they could continue their illegal sales of liquor and other crimes without prosecution, and that he would not report the same to the district attorney nor to the court. Under this agreement the women deposited, under the fictitious name of John H. Burroughs, the sum of $ 75.00 every Monday, to the aggregate sum of $ 600. This was drawn by him, who the woman testified was the county detective.

Complaint was made to Mayor Wilson that certain houses of ill fame were being protected. He investigated the charge, believed it to be well founded, and informed the district attorney, who is a candidate for president judge, whose duty it was to prosecute on behalf of the commonwealth. The district attorney came to Johnstown and made an investigation; he was in conference with the mayor and chief of police and some of the women, who related all that had transpired, exhibiting the card with the name of John H. Burroughs written thereon, and which had been given to one of the women by the man, who, in violation of his trust, made the sinful traffic a source of revenue. After several weeks of newspaper publicity and rumors of all kinds the district attorney caused to be published a personal opinion that his confidential officer and that of the court was innocent of the charge, saying:

" The evidence placed in my hands by Mr. 's accusers, as well as that presented by him in defense, is such that I cannot in justice to him and to the record of his past services, consider him proven guilty of the charges made against him, so far as I am personally concerned, in fact, the presumption would necessarily be in favor of his innocence."

On the trial it was shown that while the district attorney was publicly proclaiming the good character of his officer, the scarlet women were sending money to the same person by addressing it to his lock box at Ebensburg.

Under these circumstances Mayor Wilson and Chief of Police Mulhollen, who are honestly trying to enforce the laws in the city of Johnstown, made informations against the accused, substantially charging him with accepting bribes and giving protection to these women. At the December Term, 1908, the grand jury found eleven bills of indictment against Burroughs, who was tried and acquitted, and the costs divided between the mayor and chief of police, and the defendant. Notwithstanding that Mayor Wilson and Chief of Police Mulhollen were faithful public servants doing their duty in protecting the public, after the district attorney had refused to do his duty, the present judge sentenced these officials to pay their portions of the costs, which amounted to more than $ 200. This they paid.

It is probably the first instance where faithful public officers were even sentenced to do such a thing. The law is very clear, that where a public official acts in good faith and has probable cause sufficient to warrant making the charge, that he shall not be called upon to pay the costs, in case of an acquittal. The probable cause seems to have been sufficient for the grand jury as it found eleven bills of indictment, and subsequently Burroughs was found guilty on one of the bills.

When these cases were called for trial at the December Term, the district attorney refused to prosecute or to appear for the commonwealth, because Burroughs, the defendant, threatened to make an exposure of that official if he did appear, and making this plea to the jury he was acquitted. However, at the March Term, 1909, Burroughs was again called to trial and found guilty, and again the district attorney refused to prosecute him.

Burroughs had complete control over him, to do or not to do whatever he desired. Is a man like this fit to be judge?

During this time the district attorney was a mental and physical wreck, or in a state of collapse. The defendant moved for a new trial, principally upon the ground that a newspaper had been found in the jury room, and the court for the first time in eight years granted a new trial in a criminal case, because the jurors might have been influenced by reading a portion of the testimony which had been printed. It is likely the jurors, as well as every other person about the courthouse, had read it before the jurors retired to consider their verdict.

Thus has been the action of the court and district attorney in protecting Burroughs, who has never been called to another trial.

Some time after the trial the district attorney admitted that there was no question but that Burroughs was guilty of taking the money as charged, and further said he was the worst man he ever knew, that, in his own words, " he was a devil."

After the present judge and district attorney had announced their candidacies for president judge in the ensuing campaign, and with my knowledge of their conception of administering justice, I did not deem that either was a proper person for that exalted position. I had been a friend of the district attorney for many years, and in March last I believed it was my duty to privately call upon him and go over the situation with him on these grounds, especially as every member of the Cambria bar was familiar with the cause of his collapse in the scarlet women case, and not a single member so far as I could ascertain, was in favor of his nomination. I told him this and we went over the scandal. I called to his attention that when he was in distress that I had offered him any services, as his appearance was lamentable; he needed legal assistance, and I told him that other members of the bar would gladly do anything they could, as we all knew he was in great mental trouble. The first time I tendered my sympathy and services he did not reply to my question: " Tell me what is the trouble; what can I do for you?" He only stared and muttered something which sounded like, " Yes, yes," and walked away. I was in sorrow for him and did not believe he knew what I had said to him, so after considering his mental condition and still desiring to help him, I went back and said, " Jim, I am your friend. Tell me what I can do?" The same glary stare and the same mutter, and again he left me. He admitted these offers had been made by me.

In the March conference he told me that his distress in 1908 was caused by some question of costs which had been raised, and that he feared a prosecution. He also told me what had been alleged as the " woman trouble," to which explanations I replied, " Why did you not tell me these things when I went to you in your trouble? No, these belated stories will not do; they will not wash; that man Burroughs, or some other man, has or will have control of you. It will not do to have a judge who can be controlled or influenced by any person. In my judgment, neither the present judge, nor you, are a fit person to be judge of our court." In this conversation he told me that he and Judge O'Connor had gone over the scarlet woman matter, and both had decided that Burroughs was being persecuted. The examination and conclusion he referred to took place before the subject had been submitted to the grand jury.

I told him that I had come to him because I felt it to be my duty to do so; that if he insisted on being a candidate, I would certainly let the people know that he was not the right man for the bench. He became angry and called all who were against him on account of the scarlet women, liars, and he said he was going to be a candidate and handed me one of his announcement cards. I then said the conference was not a private one, but that the entire story would be given to the public.

In the March conference I also told him that the liquor scandals in our court would have to be eliminated, and that it would not be a whisky court, if I could help it. I then told him of the effort being made at that time, by him and his friends to levy a tribute of $ 1,000 from a brewer, to be used in his campaign, and that favors were to be granted after the first of January. I said this must stop, and added, " Jim, do you know what word I sent to the brewer? I said, tell him not to be foolish and not waste his money, that I expected to be judge at that time, and he would not need any money, and that he would get his rights, without money and without price." I also went to his friend and told him that these liquor scandals must cease.

It is my judgment that the successor to the present president judge must be one who is absolutely impartial, and who cannot be controlled by any person, and will administer the law as declared by the laws and the appellate courts.

The pertinent question is, Is either of these candidates a fit person to be...