Commonwealth v. Garvey, 65 Pa. Super. 56

Commonwealth v. Garvey

65 Pa. Super. 56 | Pa. Super. Ct. | 1916

Opinion by

Head, J.,

Under our law a conviction for the crime of perjury is followed by consequences of the most serious character. ' The trial of a citizen accused of such a crime should be conducted with that grave impartiality which ought to be the necessary incident of every judicial inquiry involving the life or the liberty of a human being.

The simple reading of the charge delivered by the learned trial judge in the case at bar, has convinced all of us it was a powerful argument for the conviction of the defendant. We cannot escape the conclusion its natural effect must have been to no longer leave the *62minds of the jurymen open, to be operated on by the convincing power of the evidence and by that alone. We are not unmindful of the recognized doctrine that a trial judge always may, and sometimes should give expression to his own views as to the probative value of the evidence adduced on the trial. But such expression should be that of an unbiased and impartial judge, not that of an advocate. The assignment of error complaining of the charge as a whole, must be sustained.

We are not yet prepared to go so far as to declare it to be legally impossible to try a defendant charged with perjury until after the determination of the judicial proceeding in which the alleged false oath was taken. We cannot say the pendency of that proceeding takes away the jurisdiction of. the Court of Quarter Sessions to try a defendant charged with a misdemeanor that was legally complete as soon as the alleged false testimony was delivered. There are convincing reasons to support the proposition that the preliminary steps in a prosecution for perjury, down to and including the finding of a bill by the grand jury, may with propriety be taken, before the final determination of the proceeding in which the alleged perjury occurred. But there is an abundance of precedents to show that, both in England and this country, the practice of the most distinguished courts and' careful judges long has been, to always grant a motion to postpone the trial of the defendant until the termination of the earlier proceeding. The reasons that support this practice are numerous and sound. They are carefully stated and thoroughly reviewed by Judge Parsons in Com. v. Dickinson, 3 Clarke 163. Dr. Wharton in his work on criminal law, Vol. 2, Sec. 1324, recognizes the universality and correctness of the practice. In People v. Hayes, 140 N. Y. 484, a defendant was tried and convicted of perjury while the proceeding in which the false oath was taken was still pending. No motion to postpone was made and the question does not appear to have been raised or considered in the trial court. On *63appeal it was argued the trial court was without jurisdiction to act in such a situation. The Court of Appeals, in an opinion by Mr. Justice Peckham, declared, “It is not a question of jurisdiction at all.......The English authorities......only show what is said to have been the practice in the English courts, which was to postpone the trial of an indictment until after the disposition of the civil action; not because the court had no jurisdiction to try the indictment before that event, but because as matter of judgment it was thought better to take such a course (cases cited). The rule in Pennsylvania does not show that the court has held there was a lack of jurisdiction. The rule is one of convenience and propriety, addressed to the sound discretion of the court and the attention of the court should be called to the matter before entering upon the trial,” &c. The disastrous consequences frequently if not necessarily following the refusal of such a motion may readily be seen in the record before us.

It is one of the essentials of the crime of perjury that the alleged false testimony, in a judicial proceeding, be material to the subject-matter to be determined in that proceeding. We agree the materiality of the testimony assigned for perjury is a question of law for the trial judge. Manifestly the accurate and safe way in which that judicial function can best be discharged, is by an inspection of the record of the proceeding. That is the best evidence that it was a judicial proceeding. The pleadings will disclose the issue then to be tried and the judgment of the judge trying the perjury indictment, that the testimony assigned for perjury, was or was not material to the issue raised by the pleadings, may rest on an ascertained foundation. Such a judgment is of course reviewable on appeal. If so, the appellate court must have before it such a record as will enable it to determine the correctness of the conclusion reached by the trial judge.

In the case at bar we have nothing by which we can *64determine that all important question. The case must therefore go back so that the defendant may have a trial conducted along the lines herein indicated. If the original proceeding has been closed by a final decree or judgment, nothing stands in the way of a proper and orderly trial. If it be not yet completed a motion by the defendant to postpone his trial until that time should be allowed, unless some compelling reason for refusing it can be advanced. The finding of a true bill by the grand j ury will prevent any escape of the defendant by reason of the statute of limitations. Unless he be a successful fugitive from justice for the balance of his days, he must stand his trial. The Commonwealth’s justice will be neither weakened nor denied if he be tried to-morrow rather than to-day.

We need not discuss the remaining assignments of error. We have adverted to .those we think exhibit reversible error.

Judgment reversed and a' venire facias de novo awarded.