185 Pa. 385 | Pa. | 1898
Opinion by
The errors assigned are of the most formal and perfunctory kind, and are sufficiently answered in the opinion of the learned judge below refusing a new trial. There is nothing in the case to justify bringing it here, and indeed there is considerable ground for belief that it was never intended in good faith to
The serious question in this case, and the only one, is whether the appeal to this Court without special allocatur was a supersedeas of execution. The appellant was sentenced on July 81, 1897, and the governor fixed December 8 as the day of execution. On the morning of that day the counsel of appellant entered the appeal in the office of the prothonotary of this Court at Pittsburgh, and the sheriff of Allegheny county, being advised that the question of supersedeas was at least open to doubt, deemed it his duty to postpone the execution. The practical importance of the matter is so great that we think proper
Without going farther bade in the history of the law than the statutes in force in 1897 we find that by the act to “consolidate, revise and amend the laws ” relating to penal proceedings and pleadings, passed March 31,1860, sec. 33, P. L. 439, all persons indicted in the Quarter Sessions or any county court of Oj^er and Terminer might remove the indictment and all proceedings thereon, into the Supreme Court, by certiorari or Avrit of error, but only upon special allowance by the Supreme Court or a justice thereof. By section 57 of the same act, P. L. 444, the defendant in an indictment for murder or voluntary manslaughter may have a bill of exceptions to the decision of the trial court on any point of eAudence or law, and a Avrit of error thereon, after conviction and sentence; but by section 59 no such writ could issue except by special allowance made upon application Avithin thirty days after sentence. By the Act of February 15, 1870, P. L. 15, in cases of murder and voluntary manslaughter, a writ of error was made of right, and might be sued out on the oath of the defendant as in civil cases. And as to all cases of felonious homicide, a revieAV by the Supreme Court is made a constitutional right by section 24 of article 5 of the constitution of 1874. At that time the statutory limitation for Avrits of error was two years, and the inconvenience and dehiy of justice by a review at the mere will of the prisoner for such a period was too great to be long endured. By the Act of March 24, 1877, P. L. 40, “ to prevent delay in the review of capital offenses in the Supreme Court,” it was enacted that no Avrit should issue in such cases after tAventy days from sentence unless specially allowed by the Supreme Court or a judge thereof.
It thus appears that by the state of the law hi 1897, an appeal in any case of felonious homicide was of right upon the mere oath of the prisoner that it was not intended for delay, but in capital cases by the act of 1877 it could not issue more than twenty days after sentence Avithout special allowance. The act of May 19, 1897 expressly repealed the act of March 24, 1877,
Turning then to the act of 1897 as the exclusive guide, we find that all appeals of every kind in civil and criminal cases are classed together and put under the same limitation of time. The language of section 1 is “ in every case in which an appeal is taken to the Supreme or Superior Court,” etc., and by section 4, “no appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from, nor shall an appeal supersede an execution issued or distribution ordered, unless taken .... within three weeks from such entry.” This limitation includes criminal as well as civil cases, not only by the generality of the language and the use of the appropriate word “sentence,” but also by the clear intent as shown in the latter part of the same section that appeals taken after the time specified shall be quashed on motion, “ provided that in civil cases in which the right of appeal to the Superior Court has now expired,” i. e., at the date of the act, an appeal may be taken within three months from the time the act goes into effect.
It is therefore clear that, although appeals in criminal cases, including capital cases, are allowed as of right upon the oath of the prisoner as in civil cases that they are not for the purpose of delay, yet they do not supersede execution issued unless taken out within three weeks from sentence. As already noted the governor had issued his mandate to the sheriff of Allegheny county appointing December 8,1897, as the day of execution of the appellant.
The origin of the issue of a mandate by the governor in capital eases is not entirely clear. It was called in question by an assignment of error in Cathcart v. Com., 37 Pa. 108, but this court merely said that was a ‘Drovel exception to be taken at
The practice may have grown out of deference to the power to reprieve and pardon, inherent in the king’s prerogative, and expressly granted in the charter to Penn as to all crimes and offenses, “treason and wilful and malicious murder only excepted, and in those cases to grant reprieves until our pleasure may be known therein: ” Duke of Yorke’s Book of Laws, 83. The jealous care with which even the liberal Penn maintained his proprietary rights is well known, and in the present regard it was no doubt aided by the tenderness in the taking of life, which even at that early day had begun to show itself among the Quakers, a tenderness which only a little later made Pennsylvania the pioneer of the civilized world in the amelioration of the bloody codes of criminal law. The minutes of the council of 1720, already cited, show that some members were then opposed to the infliction of the death penalty even for so serious a crime as counterfeiting, although considered a branch of treason. It is not improbable also that the practice may have been aided by the absence of courts of supreme authority as the direct representatives of the king. The warrant for exe
Whatever the origin of the procedure, it Avas firmly established in the earliest days of the province, and passed into the practice of the commonwealth. I am informed by the courtesy of the governor and the secretary of the commonwealth that the executive minutes sIioav the issue of a warrant by Governor Mifflin, January 22,1791, to the sheriff of Delaware county for the execution on the 29th of the same month of one William Gelaspie for murder, being the first warrant issued under the constitution of
Tlie same practice prevails in some other states though usually regulated by statute. See Costley v. Com., 118 Mass. 35; Lowenberg v. People, 27 N. Y. 336; In re Dyer, 56 Kan. 489; Holden v. Minnesota, 137 U. S. 483; State v. Oscar, 13 La. Ann. 297.
Tlio mandate of tlie governor authorizes and requires tbe sheriff “ to cause the sentence of the said court to be executed upon tlie said” A. B. on a day named, between specified hours and in the manner directed by the act of assembly, etc.
At common law the time of execution was no part of the judgment and was not usually fixed in the sentence (though the court had power to do so if it thought proper, Rex v. Wyatt, Russ. & Ryan, C. C. 230). The opinion of the twelve judges on the subject was certified to tbe Lord Chancellor in Doyle and Valline’s Case, 1 Leach C. C. 67. “ The sheriff upon receipt of his warrant is to do execution within a convenient time, which in the country is also left at large: ” 4 Blackstone, 404. And in the case of Rex v. Rogers et al., 3 Burr. 1809, “ the 'court were of opinion not only that it was not incumbent on them to name the day but even that it was more proper for them not to do it. It is not usual at the assizes. The sheriff will do as he thinks proper.” See also Cathcart v. Com., 37 Pa. 108; Costley v. Com., 118 Mass. 1; Schwab v. Berggren, 143 U. S. 442. In 1752 however the act of 25 Geo. II, c. 37, directed the execution to be on the next day but one after sentence unless that should-be Sunday, and in such case, on the Monday following: 7 British Stat. at Large, 440.
The time of execution being no part of the judgment but a mere executive or ministerial act in pursuance of it, the judgment is not affected by the prisoner’s escape, or other occurrence which merely prevénts or delays execution. The judgment is not satisfied until the sentence be fully carried out. “ If the party be hanged, and cut down and revive again, yet he must be hanged again, for the judgment is to be hanged by the neck till he be dead:” 2 Hale, P. C. 412; 2 Hawkins, P. C. c. 51, sec. 7.
So if for any other reason, not affecting the validity of the judgment, the appointed day be allowed to pass without execution, the sheriff must proceed. In State v. Kitchens, 2 Hill (S. C.), 612, the sheriff died after the date of the sentence, and
Where there is an actual escape and a recapture, the party so taken has a right to a day in court to deny his identity as the person sentenced. In Middleton’s Case, Popliam, 131 (1617), the prisoner, after sentence, escaped, and being retaken was brought to the bar and, on his confession that he was the same part}* who was condemned, the court awarded execution. So in Rex v. Okey et al., 1 Levinz, 61 (1662), the prisoners (three of the regicides) pleaded that they were not the same persons attainted by the act of parliament, and issue being taken on this, a jury was forthwith summoned, and the court held that the only question was the identity, “ quia ils ne sont ore d’estre try pur le treason, mes del identity des persons,” and the jury finding that they were the same persons, execution was awarded.
Where, as in some states by statute or custom, the date of" the execution is fixed by the court, and is an integral part of the sentence, and the day is passed, the cases seem to require that the court should fix a new day: Ex parte Howard, 17 N. H. 545; Bland v. State, 2 Carter (Ind.), 608; Nicholas v. Com., 91 Va. 813; State v. Cardwell, 95 N. C. 643; In re Cross, 146 U. S. 271; and Aaron v. State, 40 Ala. 307. The last two cases, however, appear to be ruled on express statutory directions for the contingency raised in them. The foregoing cases rest largely on the authority of Earl Ferrers’s Case, Foster, Cr. C. 140. Lawrence, Earl Ferrers, was tried and convicted of murder by the House of Peers sitting as a High Court of Parliament, and the question arose whether he should be sentenced under the special provisions of the act of 25 Geo. II, c. 37, heretofore referred to, which among other things fixed the time of
Where, as in the present case, the escape is merely constructive, and the time is no part of the sentence, there is no further fact or issue to try or supplementary change to be made in the judgment. Neither the precedents nor the principles on which they were decided seem to require the mere formality of the fixing of a second date of execution. The governor’s mandate is in full force, unaffected by anything that has occurred since (the appeal not being a supersedeas), and the failure of the sheriff to obey it on the day is no reason for continued disobedience in' the future, or for requiring either the court or the governor to go through a formal repetition of their action. Indeed there are serious objections to holding that it is within the power of a hesitating or contumacious sheriff to so obstruct the administration of justice. Of course, what is here said is not meant to reflect on the sheriff in the present case, as he acted under the advice of counsel upon a doubt raised by a new statute, but it is his plain duty now to proceed upon the mandate already in his hands, and any undue delay on his part will subject him to the very serious consequences of an escape.
Judgment affirmed and record remitted for purpose of execution.
The following forms of tlio wax-rant and subsequent proeeecliixgs are directed to be reported as precedents. I am indebted for them to tbe courtesy of William Grew, Esq., Solicitor for the Sheriff of Philadelphia County.
No. 1.
In the Name and by Authority op the Commonwealth op Pennsylvania,
Executive Department.
To Alexander Crow, Jr., Esquire,
High Sheriff of the County of Philadelphia,
or your successor in office Greeting:
Whereas, At a Court of Oyer and Tex-miner and General Jail Delivei-y held at Philadelphia, in and for the County of Philadelphia, February Sessions, 1897, a certain Pasquale Dadario, was tried upon a cex-tain indictment ehai-ging him with tlio crime of Murder, and was on the Twenty-Fifth day of February, Anno Domini one thousand eight hundred and ninety-seven, found guilty of Murder of the First Degree, and was thereupon to wit: on the thirtieth day of March, Anno Domini one thousand eight hundred and ninety-seven, sentenced by the said Court, that, he the said Pasquale Dadai-io, he taken hence to the jail of tlxe County of Philadelphia whence he came, and thence to the place of execution, and that he ho there hanged by the nock until ho is dead.
Given under my hand and the Great Seal of the State, at the City of Harrisburg, this fourteenth day of June in the year of our Lord one thousand eight hundred and ninety-seven, and of the Commonwealth the one hundred and twenty-first.
DANIEL H. HASTINGS.
By the Governor
JAS. E. BARNETT
Deputy Secretary of the Commonwealth.
No. 2.
In The Matter of the execution of Pasquale Dadario, convicted of murder of the first degree in the Court of Oyer and Terminer and Quarter Sessions of the Peace for the City and County of Philadelphia.
To Ms Excellency the Governor of the Commonwealth of Pennsylvania:
I do hereby certify and return that in obedience to the command contained iu a certain Warrant to me directed, dated the fourteenth day of June, a. d. 1897, I caused the sentence of death, by hanging by the neck, to be executed upon the body of the said Pasquale Dadario within the walls of the County Prison, in the County aforesaid, on the twenty-seventh day of July, a. d. 1S97, at o’clock and minutes.
The residue of the execution of said Warrant will appear in a schedule hereto annexed.
So answers,
ALEX. CEOW, Jr., Sheriff.
No. 3.
The said defendant convicted of murder of the first degree.
City and County of Philadelphia, ss.
Alexander Crow, Jr., Esq., Sheriff of the County of Philadelphia, being duly sworn, according to law, saith, that in obedience to the command contained in a Warrant of the Governor of the Commonwealth of Pennsylvania, dated the fourteenth day of June, A. D. 1897, and directed to this affiant as Sheriff aforesaid, he did cause the sentence of death by hanging by the neck to be executed upon the body of the above named Pasquale Dadario, within the walls of the County Prison, in the County aforesaid, on the 27th day of July, A. D. 1897, at o’clock and minutes.
ALEX. CEOW, Jr.
Sworn to and subscribed before me this twenty-seventh day of July, a. d. 1897.
No. 4.
In The Matter of the execution of Pasquale Dadario, convicted of murder of the first degree.
(Here names of Jurors are inserted.)
being duly sworn, according to law, do depose and say, that as jurors, summoned by Alexander Crow, Jr., Esq., Sheriff of the County of Philadelphia, they will witness the execution of Pasquale Dadario, and certify the time and manner of said execution, according to law.
ALEX. CEOW, Jb., Sheriff.
No. 5.
Certifícate of Jurors.
Philadelphia County Prison, July 27th, 1897.
In The Matter of the execution of Pasquale Dadario, convicted of murder of the first degree, We, the undersigned jurors, summoned by Alexander Crow, Jr., Esq., Sheriff of the County of Philadelphia, to witness
(Signatures of the jurors.)