McCullough v. The Commonwealth

Decision Date03 January 1871
Citation67 Pa. 30
PartiesMcCullough <I>versus</I> The Commonwealth.
CourtPennsylvania Supreme Court

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

Error to the Court of Quarter Sessions of Washington county: of October and November Term, 1870, No. 104 D. F. Patterson (with whom was T. H. Baird), for plaintiffs in error cited: Acts of May 8th 1854, sect. 1, Pamph. L. 603, Purd. 666, pl. 31; March 31st 1856, sect. 33 et seq; Pamph. L. 207, Purd. 187 pl. 41; Updegraff v. Commonwealth, 6 S. & R. 5. On the 3d reason he cited 1 Chitty's Crim. Law 162; 4 Bl. Comm. 301; 1 Bishop's Crim. Prac. 731.

There was no paper-book or oral argument for the Commonwealth.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

At February sessions, 1870, Andrew Neil, a constable, in his quarterly return, under oath, and as a part of it, returned Peter McCullough for keeping a tippling-house contrary to law, and also for selling liquors on Sunday, to minors and to men of intemperate habits. On this return the court awarded process for Peter McCullough, upon which he was arrested, and gave bail for his appearance at the next term. At the following term the district attorney sent up a bill against him to the grand jury, for furnishing intoxicating drinks as a beverage to Hezekiah Cooper, a person of known intemperate habits, contrary to law. This bill was returned a true bill. It was founded upon the Act of 8th of May 1854, commonly called the "Buckalew act," one of the most beneficent laws on the statute book. Viewing the habitual drunkard as a poor captive to appetite, enthralled by a slavery too strong for reason and duty, it comes to his relief by striking down the hand that puts the cup to his lips, and puts it in the power of wife, children and relatives to stay the hand of the seller of strong drink, by a notice which exposes him to punishment, if the warning be disregarded.

The defendant moved to quash this indictment on the ground that it was not based upon an accusation made before a committing magistrate, founded on probable cause, and supported by oath; that it was not based upon a presentment of the grand jury made from the personal knowledge or observation of any of its members, or upon the testimony of witnesses sent before them by the court; and that the offence is not of that nature which required the extraordinary intervention of the court to order it to be investigated by the grand jury. The substance of all these exceptions is, in short, that the return of the proper constable, under oath, and made to the proper court, is not a sufficient ground to enable that court to direct, or to authorize the district attorney, exercising the powers of the former attorney-general, to send up a bill to the grand jury for the offences returned by the constable. The court refused the motion to quash, the defendant was convicted and sentenced under the indictment, and this certiorari is brought to reverse the proceeding. The ground of the motion to quash brings into view the office and authority of the constable, and the powers of the court and district attorney. The office of constable is ancient, his duties important and powers large. His general duty is to keep the peace; and for this purpose he may arrest, imprison, break open doors, and the like: 1 Black Com. 356; 1 Chitty C. L. 20 to 25. A constable may justify an arrest for a reasonable cause of suspicion alone. Russell v. Shuster, 8 W. & S. 309. He may arrest for a breach of the peace in his presence, and deposit the prisoner in jail, and the jailer is bound to receive him: Commonwealth v. Deacon, 8 S. & R. 47. And what is more to our present purpose, he is bound to present to the term or last court all offences inquirable in those courts: 2 Hawk. P. L. C., chap. 10, sect. 34. Those are all common-law powers, and the last, that of making a return, is in the nature of an official information against the offenders; and, besides being made under a special oath at the time of the return, it is the equivalent of an oath and charge before a magistrate....

To continue reading

Request your trial
21 cases
  • Commonwealth v. Ricker
    • United States
    • Pennsylvania Superior Court
    • 17 Julio 2015
    ...against him at his preliminary hearing under those provisions.7 See Tyler, supra; O'Brien, supra; Burger, supra; see also McCullough v. Commonwealth, 67 Pa. 30 (1870) (asserting that the right to meet witnesses face-to-face attached after a true bill was found by a grand jury); compare also......
  • Brack v. Wells
    • United States
    • Maryland Court of Appeals
    • 1 Noviembre 1944
    ...N.E. 832, 839; Blaney v. State, 74 Md. 153, 21 A. 547. In some states this power has been removed by judicial decisions. McCullough v. Commonwealth, 1870, 67 Pa. 30. recent case on the question here considered is that of People v. Parker, 1940, 374 Ill. 524, 30 N.E.2d 11, certiorari denied ......
  • Brack v. Wells
    • United States
    • Maryland Court of Appeals
    • 20 Diciembre 1944
    ...N.E. 832, 839; Blaney v. State, 74 Md. 153, 21 A. 547. In some states this power has been removed by judicial decisions. McCullough v. Commonwealth, 1870, 67 Pa. 30. A recent case on the question here considered is that of People v. Parker, 1940, 374 Ill. 524, 30 N.E.2d 11, certiorari denie......
  • Commonwealth v. Gross
    • United States
    • Pennsylvania Superior Court
    • 12 Noviembre 1952
    ...district attorney's bill, submitted by leave of court, could not be quashed except for matters apparent on the face of the bill. McCullough v. Com., 67 Pa. 30; Harrison Com., 123 Pa. 508, 16 A. 611. Later cases, some of which are cited, hold that evidence of extrinsic irregularities is rece......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT