53 Pa. Super. 278 | Pa. Super. Ct. | 1913
Opinion by
It is stated in the return to the writ of habeas corpus now before us for disposition that the relator is held and detained by the respondent in the Western Penitentiary of Pennsylvania by virtue of a commitment from the court of oyer and terminer of Blair county, in a case at No. 5, R. D. Jan. Sess., 1911. The copy of the commitment ■ attached to the return sets forth the title of the court and of the case and then, so far as material here, reads as follows: “Indictment, Abduction. Defendant waives the finding of a true bill, 19th October, 1910. Defendant pleads guilty October 19th, 1910. And now, November 7th, 1910, the court sentences the defendant, William Fagan, to pay a fine of one hundred ($100) dollars to the Commonwealth, pay the costs of prosecution, .... and undergo an imprisonment in the Western Penitentiary of Pennsylvania, .... for and during the period of ten years, there to be kept,” etc. This purports to be signed by the president judge and witnessed by the clerk.
From the record of the proceedings in the court of quarter sessions of Blair county, at No. 5, R. D. Jan. Sess., 1911, which was sent up to us in obedience to the ancillary writ of certiorari, we ascertain, that on October 15, 1910, the relator was committed to jail by a justice of the peace to await trial at the next court of quarter sessions, on the charge of “the abduction of Laura Hammel, a female child under the age of sixteen years,” and that after the justice’s return of these proceedings was made to the quarter sessions, and the case was entered in the docket of that court as a charge of abduction, the defendant by “writing filed” waived the finding of the grand jury, pleaded guilty, and was sentenced to pay a fine of $100 and undergo an imprisonment in the peni
It is seen from the foregoing recital that, according to the commitment and the only commitment produced by the respondent as his warrant for detaining the relator, as well as according to the plain and unambiguous averments of the record, as it stood at the time the commitment issued, and at the time this writ of habeas corpus was applied for, the charge to which he pleaded guilty and upon which he was sentenced was abduction. Passing for a moment the question whether the court had power to sentence him without an indictment being found by the grand jury or prepared by the district attorney, as provided by the Act of April 15, 1907, P. L. 62, there remains the insuperable objection that the charge as set. forth in the commitment and record is not made an indictable offense by any statute of this commonwealth. It is not indictable under sec. 94 of the Act of March 31, 1860, P. L. 382, because it is not alleged that the female was under ten years of age; nor under sec. 1 of the Act of February 25,1875, P. L. 4, for the same reason and also because it is not alleged that there was the intent to extort money or other valuable thing; nor under sec. 1 of the Act of April 4, 1901, P. L. 65, for the latter reason; nor under sec. 1 of the Act of May 28, 1885, P. L. 27, because it is not alleged that the female was taken or enticed for any of the purposes mentioned in that act. And according to the great weight of authority, the mere “abduction” of a female is not an indictable offense at common law unless accompanied with other circumstances which would of themselves be unlawful or constitute an offense, as, for example, conspiracy: State v. Sullivan, 85 N. C. 506; 1 Cyc. of Law & Pro. 142. We hold, therefore, that the record at No. 5 R. D. Jan. Sess., 1911, is not sufficient
The foregoing conclusion is not seriously questioned by the district attorney. His contention is that the relator was not sentenced in the abduction case but was sentenced upon a charge of statutory rape at No. 4, R. D. Jan. Sess., 1911, and that by mistake the sentence was entered by the clerk in the record of the abduction case. In view of this contention we awarded a writ of certiorari to bring up the record in No. 4, R. D. Jan. Sess., 1911. It appears by the record and proceedings thus brought up, that on the same day that the relator was committed by the justice of the peace to answer the abduction charge, he was committed by the same justice to answer the charge of (we quote from his transcript) “Statutory rape and adultery on the person of Laura Hammel, a female child under the age of sixteen years, said defendant being a married man, having a wife now living.” This case was entered in the quarter sessions docket at No. 4, R. D. Jan. Sess., 1911, with the words to designate the offense “Charge — Felony—Statutory Rape,” and then follows the entry: “October 17, 1910, defendant by writing filed waives the finding of the grand jury and pleads guilty to the above charge.” No paper containing this waiver and plea is found in the files of the case, and the clerk by a paper attached to the exemplification of the proceedings certifies that no such paper was ever filed in that case and that the entry as above noted was erroneously made by him. The certificate of the president judge and the former district attorney is not in conflict with the clerk’s certificate, so far as the filing of the paper is concerned; their certificate being “that the relator appeared in open court, waived the finding of the grand jury and plead guilty to the charge of statutory rape to No. 4, R. D. Jan. Sess., 1911, and on the same day, in the court of quarter sessions of Blair county the said William Fagan waived
“Now, November 4th, 1912, on motion of Marion D. Patterson, District Attorney in and for the County of Blair, representing that on the 7th day of November, 1910, the sentence of this court imposed on the defendant in the above stated case, directing that the said William Fagan, Defendant, should pay the costs of prosecution, and undergo imprisonment in the Western Penitentiary for a period of ten years, instead of being entered to the record of the same, was erroneously noted to No. 5, T. D., January Sessions, 1911, wherein said defendant was charged with and plead guilty to the crime of abduction, and it being clear in the mind of the Court that said sentence was imposed in the statutory rape case, and not in the abduction case as the record shows, and the same being a clerical error on the part of the Clerk of said Court, it is hereby ordered, decreed and directed that the record be amended and corrected and the sentence in the abduction case to No. 5, R. D., January Sessions, 1911, be stricken off, and the same entered in the statutory rape case to No. 4, January Sessions, 1911,”
But it is contended that even as amended it does not show a legal cause for the relator’s detention for the -following reasons: (1) the court of quarter sessions had not jurisdiction to sentence the relator for the crime of rape; (2) the defendant did not enter a plea of guilty in that case; (3) there was no indictment against the relator; (4) the complaint does not charge statutory rape; 5, the Act of April 15,1907, P. L. 62, is unconstitutional. The jurisdiction to sentence one convicted of the crime of rape is in the oyer and terminer and not in quarter sessions, and it does not appear that this case was originally entered or after-wards certified into the oyer and terminer. But if an indictment in the usual form had been prepared by the district attorney, and the plea of guilty had been entered thereon, as provided by the act of 1907, we are not prepared to say that the case could not be certified nunc pro tunc into the oyer and terminer, even after sentence. See Brown v. Com., 78 Pa. 122. But there was no indictment and the charge as set forth in the proceeding before the justice did not contain all the essential elements of the crime for which the relator is said to have been sentenced. It is an elementary principle that there can be no conviction and punishment without a formal and sufficient accusation, and this principle is recognized in both the federal and the state constitutions. Under our statutes many formal defects are cured or waived by pleading guilty, but we know of no statute or principle of the
It is to be noticed first, that the indictment must be in the usual form; that is, it must charge the crime sub
“A judgment may be erroneous and not void and it may be erroneous because it is void:” Ex parte Lange, 85 U. S. 163. |t is settled by numerous decisions that a writ of habeas córpus cannof be used as a substitute for a writ of error or appeal for the correction or setting aside of all erroneous judgments in criminal cases. But, it does
It is no answer to this to say that the court had juris
The objection that the case was not certified into the oyer and terminer may be regarded as technical, but the objection that no court had power to impose the sentence, except upon an indictment, without the relator’s express and unequivocal consent, is not technical but substantial. It goes to the jurisdiction of the court just as effectively as if the sentence had been imposed after the power of the court was exhausted.
It is urged that the discharge of the prisoner will establish a bad precedent. We do not think so. A bad precedent cannot be established by a decision according to law, even though it may result in the party’s escape from
After careful and deliberate consideration of the commitment under which the relator is detained and the record of the case in which it was issued, as well as the record of the case at No. 4, R. D., Jan. Sess., 1911, as amended after this writ was applied for, we conclude that the sentence was pronounced without authority and therefore the relator is entitled in law to be discharged.
The relator is discharged.