Lynch v. Commonwealth

• Decision Date: 06 January 1879
• Citation: 88 Pa. 189
• Parties: Lynch <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

88 Pa. 189

Lynch versus The Commonwealth.

Supreme Court of Pennsylvania.

November 21, 1878.

January 6, 1879.

November 21st 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Quarter Sessions of Butler county: Of October and November Term 1878, No. 263 S. F. Bowser and J. H. Bowman, for plaintiff in error.—The verdict, whatever may be its effect, must, in all cases of felony and treason, be delivered in the presence of the defendant in open court, and cannot be either privately given or promulgated while he is absent: Coke Litt. 237; 2 Just. 117; Sir Thomas Raymond 198; 2 Hale 300; 2 Hawk. 47, sect. 2; 4 Bl. Com. 340; Bac. Abr., tit. Verdict; Burns's Justice, tit. Juror; Bishop on Crim. Law, vol. 1, p. 560; Chit. on Crim. Law 600; Clark v. The State, 4 Humph. 254; Sneed v. The State, 5 Ark. 431; Prine v. Commonwealth, 6 Harris 103.

[Chief Justice AGNEW. — Was not this rule applied only in cases tried before the Oyer and Terminer, where the jurisdiction grows out of the fact that they were capital cases? Such was the case of Prine v. Commonwealth. I do not remember a case in this state of an offence, triable at Quarter Sessions, where that principle has been laid down. I do not say that the common-law principle will not apply but I merely make this suggestion.]

Mr. Bowman. — It has been so asserted in some of the cases we have cited, but it is also said that the principle we contend for has been extended to all kinds of cases, and we claim that the rule admits of no exception.

[Chief Justice AGNEW. — Have you found any English case that applies this rule to cases triable in the Quarter Sessions? It must be remembered that in Blackstone's time one hundred and sixty-eight cases were triable in the Oyer and Terminer because punishable by death.

Justice MERCUR. — Suppose the defendant persists in his absence, what would you do?

Justice AGNEW. — I suggest a bench-warrant; but if he is brought in he can again be released upon a bench-warrant.

Justice MERCUR. — The recognisance provides that the defendant shall continue in court until the end, otherwise how could it be forfeited?

Chief Justice AGNEW. — The practice of the court is strong evidence of what the law is. Have you ever heard in a case of a bawdy-house or misdemeanor that the defendant was called in to hear the verdict?

Justice MERCUR. — In what respect has the defendant been injured when he goes off and forfeits his bail by not being present when his sentence is pronounced?]

Mr. Bowman. — The law presumes an injury when the provisions of the law are not complied with.

[Chief Justice AGNEW. — It must not be forgotten that larceny is a misdemeanor, and is always tried in the Quarter Sessions. It is not ranked as a felony. I do not see either how a man may be sentenced if he chooses to be absent.]

Mr. Bowman. — If he can waive a right at any stage of the trial he may waive it all through.

W. A. Forquer, District Attorney, and Clarence Walker, for the Commonwealth.—The defendant not being in custody, his voluntary absence was a waiver of his right to be present at the rendering of the verdict: Price v. The State, 36 Miss. 531.

Chief Justice AGNEW delivered the opinion of the court, January 6th 1879.

The question in this case is, whether upon the trial of a defendant for larceny, it is error to take the verdict of the jury, when he is not present, though he is out on bail, is voluntarily absent, and is called when the jury are ready to deliver their verdict.

In the note at page 602 of the 7th volume of Bioren's edition of the Laws, it is said that the Act of 31st May 1718, is the basis of our criminal law. In the note to the act itself the same remark is quoted from Mr. Bradford's essay on the criminal law of this state (vol. 1, p. 105). Justice COULTER adopts this statement in Dunn v. The Commonwealth, 6 Barr 385. Though much of this act has been altered and supplied, some yet remains, and Justice COULTER says in that case that as to the judgment and sentence in criminal cases the act is still in force. These references are made because of the important bearing the Act of 1718 has upon the question before us.

It is well known that William Penn was opposed to the infliction of capital punishment except in the single instance of wilful murder, and beginning with temporary laws, he endeavored to reduce the punishment of all other offences, capital by the laws of England, to lower grades. His efforts were fruitless, however, for when these laws were enacted permanently, they were repealed by the queen in council. This led, as the preamble to the act clearly indicates, to its passage. It not only enacted capital punishment for a number of offences, but declared in the 6th section that "when any persons shall be so as aforesaid convicted or attainted of any of the aforesaid crimes, they shall suffer as the laws of Great Britain now do, or hereafter shall, direct and require in such cases respectively." Thus in the same year the Proprietor died the laws of his province became a code of blood for the following offences: treason, murder, robbery, burglary, rape, sodomy, buggery, arson, malicious maiming, manslaughter by stabbing, concealing by the mother the death of her bastard child, witchcraft and conjuration, and every felony (except larceny) on a second conviction.

The third section declared, "that the inquiries and trials of all petit treasons, misprisions of treason, murder, manslaughter and homicides, and all such other crimes and misprisions as by this act or any other Act of Assembly of this province are or shall be made capital or felonies of death, which have been or shall be done, committed, perpetrated, or happen within this province, shall be as by this act is directed." The 6th section then directs judgment and sentence to be pronounced by the justices of the court according to the manner, form and directions of the laws of England, and execution to be awarded accordingly. A supplement to this act, passed February 26th 1767 (2 Sm. Laws, 274), enacted that the arson of any dwelling-house, house, barn or outhouse having hay or corn therein, and the counterfeiting of gold and silver coin coined in this province, should be felonies of death without benefit of clergy.

These laws became the foundation of the exclusive jurisdiction of the Court of Oyer and Terminer in capital cases, which has since continued. But simple larceny never was a crime triable in the Oyer and Terminer exclusively, and in the Act of 1718, it stood on so low a footing that the first offence was punishable only with restitution of the value of the goods, payment of the costs and expenses of the owner, a fine of double the value of the goods, and a whipping not exceeding twenty-one lashes; the commitment to gaol being only till satisfaction of these should be made. The punishment for a second offence was the same, excepting that the number of lashes should be not less than twenty-one, and not more than forty. As a consequence, simple larceny, whether grand or petit, has always been triable in the Court of Quarter Sessions in the same manner as misdemeanors. So the mayor, recorder and aldermen of Philadelphia (viz.: the Mayor's Court), had the same jurisdiction to try and punish "all larcenies, forgeries, perjuries, assaults and batteries, riots, routs and unlawful assemblies, and all other offences which have...