*1 appellant, proof upon tional or burden of unwarranted hearing not. At the on concluded it did have subject appellant greater to no bur- rule testimony respect producing evidence or den with prosecution good would faith than he on the before, testifying grand jury. a had in As have appellant practical if had testified before matter, imposed grand him, and the costs had been ordinarily he had that would not have would opportunity to full demonstrate the foundation probable instituting prosecution, the cause for the for good acting afforded in so and his faith would be it, hearing a on the rule. I at do However, him imposed upon- additional burden tend that only- public I official the rule feel cause; on show oppor- rule he here the same. that on the afforded tunity testifying heard he have had in as would jury. grand before- appellant gave opportunity
The court an unlimited weighed hearing, carefully factors before for My show cause. review of the court’s the rule discharging the rule discloses no abuse of discre- order committed error of law court.. tion or of the court should be affirmed. The order join dissenting in this and Gunther, JJ., ...-.Hirt opinion. Cody. Appellant, Commonwealth, *2 Argued 1959. Before November Gunthee, Hiet, JJ. Weight, Eevin, (Rhodes, Woodside, Watkins, absent). P. J., Attorney, District Glaney Assistant Smith,
William ap- Attorney, for Boyle, District Edward G. him pellant. appellee. for Brunwasser,
Allen N. Opinion 1959: December 17, J., Gunther, appeals from are the Commonwealth These quashing of indict- bills order of the Cody, with charging W. Lewis ment the defendant, Penal Code pretense, of The under false section section 4836. 18 P.S. amended, *3 these The informations which indictments a Justice 1958 before filed on June were based were 11, ar- for defendant’s of the Peace issued warrants who April alleged on or about rest. One information that pretended unlawfully that certain defendant 3, 1956, repayment loan the available him for funds were informa- other The was not available. which, fact, July pretense on charged occurred the false tion that returns July made the constable 1956. On 1958, 18, 5, appre- could not be that the defendant on warrants was address no other he moved and hended because hearings these preliminary had on were No available. September infor- these 1958, informations and grand jury, to the without were submitted mations day, returned. true bills were of court. The same leave September counsel for defendant filed On 16, 1958, among petition alleging, these indictments that the indictments had been returned others, years after the dates of the as set offenses than two indictments that the indictments were in the and forth although preliminary hearing, without obtained willing- prosecutor informed of the was defendant’s necessary. wherever ness After the hearing, below quashed the indict- ments on the ground that the face of the indictments clearly disclosed that the prosecution brought the two year limitation as provided by the Act of March as 31,1860, amended by Act of April P. L. 17, section P.S. section and that indictments failed to allege that the defendant had not been an inhabitant or usual resident of this State at time before any he was indicted. adjudica- Prom such tion, Commonwealth has taken appeal.
Two questions are raised this appeal for our de- termination: (1) is not Assuming defendant an inhabitant or usual resident of, State, within this where there no an indict- preliminary hearing, may ment be submitted the grand without (2) Should the court, itself state the exception relied on the Commonwealth in bringing the prosecution beyond limitation set forth in Act of March amended?
The that no Commonwealth concedes held hearings were on the informations filed. transcript of Justice of the Peace disclosed merely the defendant was not arrested the con- stable’s showed the return warrants as not be- served not be apprehended. cause defendant could No testi- offered and there no valid kind was mony these we circumstances, for court. Under over binding *4 has no authority a district attorney held have of first bills indictment unless he to a grand send do so. Commonwealth v. of court leave obtains Com- A. Ct. v. Wilson, monwealth have we supra, the O’Brien case, in While 2d 324. A. be invoked of the court may the discretion stated a belated quash, the motion to exercisable is and before, done have been should that which of approval this is tanta- quash, motion sustains if approval refusing mount to the dis- its of the action of attorney. falls trict The instant therefore, case, squarely again holding call under the of this case. We necessity obtaining attention to the of of court preliminary hearing in those cases a where has or been held cannot be held because of the failure apprehend present at or failure accused his to be practice hearing. this Adherence to obviate a indictments returned without attacks on previous binding hearing over. more than face on its shows
Each indictment elapsed the indict- years the date of have between two alleged case crimes. In the the dates of the ments and particularly, filed charge, of one information was alleged to have the crime is more than concedes committed. While the Commonwealth been exception provided in relies in the this be fact, provid- supra, as March amended, the Act of person against ing, such indictment “That if the whom brought or been shall shall not have be exhibited, or resident dur- inhabitant of this usual State, therein, respective ing he shall be sub- the said terms for which prosecution ject then such liable to aforesaid, against brought may or or exhibited shall be space period person any at within similar during usu- shall an inhabitant or which he be of, time The Commonwealth ally this State:” resident within exception incor- need not be contends that further proved may porated at indictment but in the be con- other issue of fact. This latter of trial as time normally, fact overlooks the tention, however, that, com- in connection with the the defendant, residence issue. it is not an If to made of crime, mission charged the indictment it should so an issue, only apprise the defendant that he must defend not against limitation against itself but the crime why before trial prosecution. He should be informed
359
application.
op
statute of limitation has no
portunity
prepare
against
to
allegation
a defense
given
opportunity
should be
same extent as the
against
to defend
the accusation of crime itself. Were
no
otherwise,
attack,
could ever
trial,
ground,
during
made on this
and if made
or subse
quent to
an accused would
trial,
be faced
well
established rule that an attack on an indictment will
plea
jury
not be considered after a
is entered and the
is sworn. Blackman
124
v.
Pa.
Commonwealth,
Superior
The motion granted. promptly and if not so made, supra; v. Superior Taylor, Pa. Ct. 65 Superior Pa. We Ct. A. 2d 359.
Russo,
squarely
in Commonwealth v.
have held
Werner,
fatally
defec-
that an indictment
Ct. face that it
on its
was found
shows
tive which
the commission of
the offense,
than two
allege
that the defendant had not been an
fails
time
or usual resident
this State at
habitant
While there are cases which seem
before indictment.
contrary,
to the
an examination of these cases
to hold
objection
plea
that the
raised after a
has
show
permitted
proceed
or the case
entered
to trial
been
raising
issue. Even in the
before
case of Common-
Boyer, 168 Pa.
Dissenting
Weight,
It
the ma-
dissent.
is my
I
view
respectfully
contravenes
two rules of criminal pro-
decision
jority
this
are well settled in
Commonwealth.
cedure which
it is
the dis-
practice
better
to do
Although
so,
(1)
required
aver in the instant
was
trict attorney
defendant had not been “an
indictments
of
usual
therein”
or-
or
resident
in
state,
habitant
the terms
in
proviso
der to
with
clause
comply
Act
77
of Miarch
211.
Section
of the
19 P.S.
It
so ruled in Blackman v.
expressly
Common-
(2) have been permitted counsel and attack only validity He indictments. had neither been nor arrested, *7 surrendered nor entered bail for his himself, appear ance. Such a defendant no position to assert It his so ruled in rights. expressly v. Feuerstein and 98 Pa. Superior Ct. Stern, 201. See D. & Rehrer, C. 2d National Gypsum Pa. D. & C. Co., 2d 169. et
Kelly Herrington al., Appellants.