Dougherty v. Commonwealth

• Citation: 69 Pa. 286
• Parties: Dougherty <I>versus</I> The Commonwealth.
• Decision Date: 09 January 1872
• Court: United States State Supreme Court of Pennsylvania

Page 286

69 Pa. 286

Dougherty versus The Commonwealth.

Supreme Court of Pennsylvania.

October 2, 1872.

January 9, 1872.

October 2d 1872.

Before THOMPSON, C. J., READ, SHARSWOOD and WILLIAMS, JJ.

Writs of error and of certiorari to the Court of Quarter Sessions and Oyer and Terminer of Armstrong county: No. 144, 145, 146, 147, to October and November Term 1871.

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J. Gilpin and E. S. Golden, for plaintiff in error, cited, as to jurisdiction, Mills v. Commonwealth, 1 Harris 630; Collins v. Collins, 1 Wright 387; Act of March 31st 1860, §§ 31, 32, Pamph. L. 437, Purd. 255, pl. 31, 32. As to amendment: Gardner v. Post, 7 Wright 19; Wright v. Hart, 8 Id. 454; Stout v. Stout, Id. 457; McManus v. Cassidy 16 P. F. Smith 260; Act of March 31st 1860, supra, §§ 11, 12, 13, 53; Purd. 251, 259, pl. 11, 12, 13, 53. Presumptions will not be made in such cases in aid of the record: Dunn v. Commonwealth, 6 Barr 385. When the record is made up it cannot be contradicted: Taylor v. Commonwealth, 8 Wright 131; Cathcart v. Commonwealth, 1 Id. 108; Roberts v. Orr, 6 P. F. Smith 181.

There was no argument for the Commonwealth.

The opinion of the court was delivered, January 9th 1872, by WILLIAMS, J.

These writs bring up the records of the Court of Quarter Sessions and the Court of Oyer and Terminer of Armstrong county, showing the trial of the plaintiff in error for the murder of Joseph Stinel, of said county, on the 14th of October 1870; and his conviction of manslaughter, upon which he was sentenced to the payment of a fine of $50 to the Commonwealth, and to separate and solitary confinement at labor, in the Western Penitentiary, for four years and three months, to be computed from the date of the sentence.

It is not alleged that the prisoner did not have a fair and impartial trial, but the complaint is that he was not tried by a court having jurisdiction of the crime with which he was charged; and if this be so, then his conviction and sentence cannot stand. What then are the facts as shown by the records? A bill of indictment, charging the prisoner with the murder of the said Joseph Stinel, was submitted to the grand jury, at No. 1, March Sessions 1871, of the Court of Quarter Sessions of said county, and was by them found a true bill and returned into said court on the 7th of March 1871. Having been brought into the Supreme Court on process, the defendant, on the 9th of March 1871, entered into a recognisance with sureties conditioned for his appearance in the Court of Oyer and Terminer to be held at Kittanning, in said county, on the 1st Monday of June next thereafter, to answer the indictment, &c., and not to depart the court without leave. On the 6th of June 1871, his counsel moved the court to quash the indictment, and the same day the motion was overruled by the court; and the defendant being then arraigned, pleaded not guilty. On the 7th of June 1871, a jury being called, came, &c., twelve honest, lawful men, duly selected and sworn according to law, who respectively say that they find the defendant guilty of manslaughter. On the 10th of June 1871, the court entertained a motion for a new trial and granted leave to defendant's counsel to file reasons therefor within ten days thereafter. On the 13th of July 1871, the court sentenced the defendant to pay a fine, &c., and be imprisoned in the Western Penitentiary of Pennsylvania, in Allegheny City, at separate and solitary confinement at labor, according to law, for four years and three months, and to pay the costs of prosecution, &c. On the 27th of July 1871, the district attorney moved the court to certify this case into the Court of Oyer and Terminer, nunc pro tunc, as of the 9th of March 1871. The same day objections were filed by the defendant's attorneys against making any change in the record; and on the 29th of July 1871, on motion of the district attorney — so the record reads — this indictment is hereby certified nunc pro tunc as of 9th March 1871, from the Quarter Sessions into the Court of Oyer and Terminer, there to be heard in due course of law, the offence not being triable in the Court of Quarter Sessions. These are the material facts touching the trial of the prisoner, as shown by what appears to be the record of the Court of Quarter Sessions, at No. 1, March Sessions 1871, as certified and brought up with the writs in these cases. But it is alleged on behalf of the Commonwealth that the prisoner was in point of fact tried, convicted and sentenced in the Court of Oyer and Terminer of said county — and not in the Court of Quarter Sessions — and that all the entries subsequent to the 9th of March 1871, when the defendant gave bail for his appearance in the Court of Oyer and Terminer, constitute the record of the Court of Oyer and Terminer, with the exception of the order of the 29th July 1871, certifying the indictment from the Court of Quarter Sessions into the Court of Oyer and Terminer, as of the 9th of March 1871. But how can we separate the entries, and divide the record into three parts; and declare that the first and last portions constitute the proper record of the Court of Quarter Sessions, and the intermediate portion the record of the Court of Oyer and Terminer? The entries follow each other in chronological order, and they all appear to be made in the case of The Commonwealth v. Daniel A. Dougherty at No. 1, March Sessions 1871, of the Court of Quarter Sessions. The motion of the defendant's counsel, on the 6th of June 1871, to quash the indictment, is shown to have been made in the Court of Quarter Sessions, not only by what appears to be the record of that court, but by the paper filed in the case and annexed to the record, containing the motion made by the defendant's counsel, the ruling of the court thereon, and the bill of exception sealed thereto by the presiding judge. If then, the motion to quash the indictment was made and overruled in the Quarter Sessions, as shown by the record and bill of exception, how can it be presumed or intended from the entry which immediately follows, of the same date, that the defendant was arraigned and pleaded not guilty in the Court of Oyer and Terminer? Manifestly, if the record is to be our guide, he was arraigned in the same court in which the motion to quash the indictment was made by his counsel. So far then as appears by the record of the Court of Quarter Sessions, the defendant was arraigned, tried, convicted and sentenced there. And if so, the conviction and sentence are void for want of jurisdiction in the court to try the defendant for the crime with which he was charged. While the Quarter Sessions had jurisdiction and power, under the Act of the 31st of March 1860, by its grand jury, to find the indictment charging the defendant with murder, it had no jurisdiction or power to try and punish him for the crime. Exclusive jurisdiction and power to try and punish all persons charged with any murder, manslaughter or other homicide, is given to the Courts of Oyer and Terminer by the act; and, under its provisions, whenever any indictment is found in any Court of Quarter Sessions for these or any other crimes or offences not triable therein, it is the duty of the said court to certify the same into the Court of Oyer and Terminer next to be holden in such county, there to be heard and determined in due course of law. The Court of Quarter Sessions, therefore, had no jurisdiction or power to try and punish the defendant; and if, as appears by the record, he was tried, convicted and sentenced therein, the whole proceedings must be regarded as null and void.

But if what purports to be the record of the Court of Quarter Sessions, clearly appeared to be the record of the Court of Oyer and Terminer, it is so fatally defective that the conviction and sentence could not be allowed to stand. While the record shows that the defendant was arraigned, and pleaded not guilty, on the 6th of June 1871, it does not show that he was present in court the next day when the jury were called and sworn, nor when they rendered their verdict. It does not appear by the record that the defendant was present in court between the 6th of June 1871, when he was arraigned, and the 13th of July 1871, when he came into court and received his sentence. Nor can his presence be presumed. In capital felonies, it must appear by the record that the prisoner was present at the trial, verdict and passing of the sentence. It was so decided in Dunn v. The Commonwealth, 6 Barr 385; and the sentence there was reversed because it did not sufficiently appear by the record that the prisoner was present at the trial, particularly at the rendition of the verdict, nor when sentence was passed. Nor do the cases of Cathcart v. The Commonwealth, 1 Wright 110, and Taylor v. The Commonwealth, 8 Id. 131, establish a different rule. If, as said in the former case and quoted approvingly in the latter, there is a presumption in criminal as well as in civil cases that the proceedings were regular, and it is incumbent on the plaintiff in error to show by the record that errors were committed before we can interfere, it was not intended to assert, as the opinions in these cases clearly show, that where "the substantive parts of a proper record" are wanting that their existence can be supplied by the presumption that all things were rightly done. In neither of these cases was there any allegation that the prisoner was not present when the verdict was rendered, or when the sentence was passed. In the latter case it is said: "But taking the record as it stands we have the facts distinctly appearing of the arraignment in court of the prisoner; of his presence when the jury were selected and sworn,...