Linn v. Commonwealth

• Decision Date: 03 January 1881
• Citation: 96 Pa. 285
• Parties: Linn <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

96 Pa. 285

Linn versus The Commonwealth.

Supreme Court of Pennsylvania.

November 15, 1880.

January 3, 1881.

November 15th 1880.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent

Certiorari to the Court of Quarter Sessions of Butler county: Of October and November Term 1878, No. 334.

Lewis Z. Mitchell, Charles McCandless and H. H. Goucher, for plaintiff in error.—The court erred in overruling and refusing to quash the indictment for the reasons embodied in the first assignment of error. The indictment shows on its face that the oath on account of which the perjury is charged, was to exceptions to bail on a writ of error then pending in the Supreme Court, which oath was neither required by law, rule or order of court, and hence the oath, though it were false, was not necessary, and was immaterial and extra-judicial, and an indictment could not be founded upon it. Rule "5" of the Supreme Court under which these exceptions were filed, does not require an oath, and the information and indictment are fatally defective in not showing the materiality of the oath by setting forth by way of inducement, that the oath, on account of which perjury is charged, was required by law or rule of court. The oath could not have been material to the alleged issue in this case, for it is made the duty of the prothonotary to non pros. after ten days when exceptions are filed to bail and notice given, although the exceptions be not sworn to, the requirements of the rule are complied with without an oath.

The language of the court in their instructions to the jury was unwarranted and greatly prejudicial to the cause of the defendant. There is no sanction of law for such a charge, and it was unfair to the defendant. The allowance of fees to eighty-two witnesses was unjustifiable.

W. A. Forquer, District Attorney, contra.—That the oath taken by the defendant and on account of which the perjury is charged, was not necessary, and hence not material, and was extrajudicial, we contend was question of fact to be ascertained from the evidence, which could not be ascertained before the case was put on trial, and the rules and practice in the Supreme Court, in regard to exceptions to bail, were proven to the court and jury.

Mr. Justice PAXSON delivered the opinion of the court, January 3d 1881.

This cause was removed into this court upon a writ of certiorari specially allowed by the chief justice under the thirty-third section of the Criminal Procedure Act of 31st March 1860, Pamph. L. 427. If anything were needed to vindicate the wisdom of this legislation, it is to be found within the four corners of this record.

The defendant below, who is a member of the bar, was indicted in the Quarter Sessions of Butler county for the offence of perjury. The defendant had filed exceptions to the sufficiency of bail in error in a cause depending in this court. He accompanied the exceptions with his own affidavit, and it was the statements contained in the affidavit that were alleged to be false. There being no law which required exceptions to bail in error to be sworn to, the oath taken by the defendant was extrajudicial, and if false was not the subject of an indictment for perjury. A motion was made in the court below to quash the indictment upon this ground. Instead of doing so the learned judge...