Sayres v. Commonwealth

• Citation: 88 Pa. 291
• Parties: Sayres <I>versus</I> Commonwealth.
• Decision Date: 20 January 1879
• Court: Pennsylvania Supreme Court

88 Pa. 291

Sayres versus Commonwealth.

Supreme Court of Pennsylvania.

January 9, 1879.

January 20, 1879.

January 9th 1879.

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

Error to the Court of Oyer and Terminer, of Philadelphia county: Of January Term 1879, No. 69.

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John L. Kinsey, Charles F. Warwick and William H. Ruddiman, for plaintiff in error.—The Act of March 24th 1877, is in conflict with art. 5, sect. 24 of the Constitution.

There are two distinct classes of cases made subject to review: one, all cases of felonious homicide, without reference to any provision for them by law; the second, such other criminal cases as may be so provided for. The absence of the right of legislative designation and provision in the one class is made only the more significant and distinctive, by its express authorization in the other, and comes fairly within the application of the principle: expressio unius est exclusio alterius.

Prior to the present Constitution, the removal of criminal proceedings was regulated (see Constitution of 1790, as amended in 1838, art. 5, sect. 5), in these terms: "The party accused, as well as the Commonwealth, may, under such regulations as shall be prescribed by law, remove the indictment and proceedings, or a transcript thereof, into the Supreme Court." By this all cases of review were to be under statutory regulation. But the last constitutional convention seems to have regarded the subjects of such review as distinguishable, because of their graver or less important nature, and to have made it of absolute right in the former, in favorem vitæ, and, in the latter, to be under legislative direction.

The prisoner was entitled to a challenge for cause, because there were two persons of the same name, living in the same house, and because the juror was marked as living at 1001, when there was no such number on the street: Quigley v. Commonwealth, 3 Norris 18.

The alleged quarrels between the prisoner and his wife had occurred more than two years before the shooting; and it was shown that the defendant had often requested his wife, through mutual friends, to settle their differences and live amicably together; and it also appeared the trouble as to the property had been settled satisfactorily by arbitration, and that his earnest desire was to return to her house and his children. The law is laid down in 1 Hale P. C. 451, that if two persons quarrel and are afterwards reconciled and subsequently fall out again, and one kills the other, it will not be presumed that they fought on the old grudge.

The court erred in not defining or limiting the term satisfactory, or stating its legal force and extent, and in not also charging the jury upon the point that they were not required to be satisfied of the prisoner's insanity beyond doubt, and that the measure of proof need be such simply as flows fairly from preponderance of evidence. It need not be beyond doubt: Meyers v. Commonwealth, 2 Norris 131.

J. R. Read, Assistant District Attorney, and Henry S. Hagert, District Attorney, for the Commonwealth.—At common law, the writ of error in all criminal cases was an act of grace. A special allowance, therefore, was always required in this state, until the passage of the "Schoeppe Act." The new Constitution provides that the writ shall be obtainable in all cases, but it does not prohibit the legislature from regulating how the power shall be exercised. The right is not impaired by limiting the time in which the writ must be taken out.

It was contended by the Commonwealth that the bad feeling between the prisoner and his wife continued down to the time of the shooting, and was aggravated by the repeated refusals of the wife to live with him and to permit him to return to the house, and that these, coupled with the final refusal on her part a few days before the shooting, were among the motives which led to the murder.

The charge was in the very language of Chief Justice AGNEW in Meyers v. Commonwealth, 2 Norris 141. The court carefully avoided the error into which the court below fell in Myers v. Commonwealth, and in Pannell v. Commonwealth, 5 Norris 260, and no form of words could more aptly convey to the mind of an ordinary juror the amount of legal proof necessary to sustain the defence of insanity.

The court was satisfied of the identity of the juror, the name and occupation being correct, and the residence given with sufficient certainty to enable any one seeking for Joseph Dougan in the neighborhood of 1008 Lemon street, to find him. The juror was afterwards challenged peremptorily, and when the jury was finally complete, the defendant had not exhausted his peremptory challenges; not having exhausted his peremptory challenges, he was not prejudiced: Commonwealth v. Winnemore, 2 Brewst. 380.

Mr. Justice PAXSON delivered the opinion of the court, January 20th 1879.

The Act of 24th March 1877, Pamph. L. 40, entitled, "An Act to prevent delay in the review of capital cases, in the Supreme Court," provides "that no writ of error or certiorari in capital offences, shall be issued from the Supreme Court to any Court of Oyer and Terminer and General Jail Delivery, to remove the indictment, record and proceedings, to the Supreme Court for review, after twenty days from sentence, unless specially allowed by the Supreme Court or a judge thereof." The plaintiff in error was convicted of murder of the first degree in the court below, and sentenced in accordance with law on July 13th 1878. This writ of error was not taken out until November 30th 1878. There was no special allowance thereof by this court or by a judge thereof. It is but just to the learned counsel who issued the writ, to say that they were not aware at the time, of the passage of the act above cited. After their attention had been called to it, they applied to Chief Justice SHARSWOOD to allow the writ nunc pro tunc, with whom I united in a denial of the application upon the merits, no point having been made at that time as to the constitutionality of the Act of 1877.

It is plain that the writ was issued in direct violation of the terms of that act. But it is alleged that the act is in conflict with art. 5, sect. 24, of the Constitution, which provides, that "in all cases of felonious homicide, the accused, after conviction and sentence, may remove the indictment, record, and all proceedings, to the Supreme Court for review; and in such other criminal cases as may be provided for by law."

The object of the Act of 1877, is clearly expressed in its title. It was to prevent delay in the review of capital cases in this court. It became apparent soon after the present Constitution went into effect, that the section thereof above quoted, would seriously interfere with the efficient administration of the criminal law unless the exercise of this right should be regulated by legislation. The punishment of crime should not only be certain but speedy. The result was, that in practice, writs of error were usually delayed until the death-warrant had been issued. This, under the system of return-days then in force, involved an average delay of nearly or quite a year, to which an additional year might sometimes be added, in the absence of any rule advancing such causes upon our crowded lists. The evils of such a practice were pointed out by this court, in commenting upon the Act of 1870, commonly called the Schoeppe Act (Schoeppe v. Com., 15 P. F. Smith 51), in which case it was said, by AGNEW, J.: "The effect of this law seems not to have excited attention. It has changed the whole doctrine of the criminal law as to the speed and certainty of punishment, and left to the felon both the hope and a door of escape, not only from the law's delay, but by prison breach, and all the various means of avoiding retributive justice. At this moment, two cases occur to my memory of convictions of murder in Allegheny county, delayed by dilatory motions, where the prison doors opened by unknown means, and the prisoners escaped for ever. Any murderer may, under this law, though like Probst, he may have murdered a whole family, take out his writ of error without limitation of time or condition, whether in prison under sentence, or stepping upon the trap of the gallows, with cause or without it, and suspend his case until the next term of the Supreme Court. No one could condemn him if, the death-warrant not preventing, he should wait till the term of the Supreme Court be passed, and then take out his writ of error to delay the execution of his sentence for a whole year. That only security to the public, the examination of the case and allowance of the writ for cause, is repealed." The incorporation of the principle of the Schoeppe Act into the fundamental law, did not tend to lessen the evils above referred to. To remedy them in part, this court adopted a rule in 1877, making the first Monday of each month a special return-day in capital cases, and requiring such cases to be heard on the fifth Monday after the writ is taken out, provided the court be in session in any part of the state. This rule, in connection with the Act of 1877, prohibiting the issuing of a writ of error or certiorari more than twenty days from judgment, would seem to provide against unreasonable delays. It remains to consider whether said act is constitutional.

A writ of error in criminal cases is not of course by the common law: 4 Black. Com. 392. It was of grace not of right. But in the third year of Queen Anne ten of the judges expressed the opinion that in all cases under treason and felony it was not merely of grace but ought to be granted; not that it was of course, but that where...