91 Pa. Super. 485 | Pa. Super. Ct. | 1926
Argued October 27, 1926. The indictment involved in this case contained three counts: The first charging the defendant with assault and battery; the second, charging assault and battery *487 and the infliction of grievous bodily harm, and the third, charging the commission of such assault and battery and that the defendant did "unlawfully cut, stab and would the prosecutrix." It appears from the docket entries that the defendant entered the plea of not guilty, in open court, upon which plea the district attorney, for the Commonwealth, joind issue. There was then filed of record a writing signed by the defendant and stipulating as follows: "Defendant having entered a plea of not guilty waives his right to trial by jury under this bill of indictment, to which he is entitled under the Constitution and Acts of General Assembly of the State of Pennsylvania, requests the court to determine the issues of fact and law involved and enter such verdict and impose such sentence as the facts and laws require." The judge presiding then proceeded to hear the evidence presented upon the part of the Commonwealth and of the defendant, which evidence was conflicting as to the facts, without the intervention of a jury, and after such hearing found the defendant guilty as indicated. The defendant thereupon filed motions for a new trial and an arrest of judgment, averring in support of said motions the following reasons: "(1) Because the defendant has not been tried by a jury, as required by the Constitution and the laws of the Commonwealth of Pennsylvania, the alleged verdict in this case having been found by a judge without a jury. (2) Because the court has not jurisdiction over the defendant in that, contrary to the protection afforded him by the Constitution of the State of Pennsylvania, the case was tried by a judge without a jury of twelve men. (3) Because the defendant, by waiver of jury, could not confer jurisdiction on the Court so that the cause could be heard and judgment passed in the absence of a jury, there being no provision under the Constitution and laws of the Commonwealth of Pennsylvania for a trial in a Court of Quarter Sessions, before a judge *488 without a jury." The judge, after hearing arguments on the motions for a new trial and an arrest of judgment, overruled said motions and sentenced the defendant, whereupon the latter took this appeal.
We are not in this case to consider the question whether the Legislature might, without violating the constitutional provisions guaranteeing to a defendant the right of trial by jury, enact a law which would make it possible for one accused of crime to waive those constitutional rights. The Legislature of Pennsylvania has never enacted a law conferring jurisdiction upon the judges of the Court of Quarter Sessions to try the issues of fact arising when a prisoner indicted for the crimes here involved enters a plea of not guilty and attempts to confer jurisdiction upon the court to try such issues of fact without the intervention of a jury. The authority of the Legislature, without violating the Constitution, to establish a new tribunal, to proceed, with the express consent of a prisoner, to try without the intervention of a jury certain minor offenses, or to confer jurisdiction upon the common law courts, upon the express consent of the defendant, to vary the established criminal procedure is here, for the same reason, not involved and the decisions in. Van Swartow v. Commonwealth,
The Court of Quarter Sessions is a tribunal established by the Constitution, but the Constitution does not define its jurisdiction nor the powers vested in its judges. Courts are founded on express authority; and their duty is to hear and determine according to law. The power exercised in this case by the learned judge *489
of the court below is not to be found based on any express authority constitutional or statutory; nor in any express right of the prisoner to its exercise: Commonwealth v. Mayloy,
It is contended on behalf of the Commonwealth that as the several counts of this indictment only charged misdemeanors, petty offenses, it would be convenient and save expense if such cases were tried in the manner pursued in this case. The third count of this indictment, upon which the judge of the court below found the defendant guilty, would have subjected the defendant, had he been regularly tried, "to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, either at hard labor, at separate or solitary confinement, or to simple imprisonment, not exceeding three years." It can hardly be said to be the view of the law that this was a petty offense. It is sufficient, however, to say that, with regard to the question here presented, there can be no real reason for distinguishing between felonies and misdemeanors, so far as a waiver is concerned: Commonwealth ex rel. Ross v. Egan, Warden,
Assaults, batteries and wounding were, at common law, indictable offenses, punishable with fines and imprisonment: 4 Blackstone's Commentaries 216. After trials by battle or ordeal were abolished there was, at common law, no mode of trial but by the country: 1 Chitty's Criminal Law 416; Hale's Pleas of the Crown, vol. 2, p. 259; Hawkins' Pleas of the Crown, book 2, chap. 39. When the prisoner, after pleading *491
not guilty, refused to put himself upon the country, he was said to stand mute: 1 Chitty's Criminal Law 424; 4 Blackstone's Commentaries 324; 2 Hale's Pleas of the Crown 258. In this state, by the Act of 1717, a prisoner standing mute, when arraigned, was to suffer as if tried and found guilty by a jury. This was changed by the Act of September 23, 1791, which provided: "If any prisoner shall, upon his or her arraignment for any capital or inferior offense, stand mute, or not answer directly, ......, the plea of not guilty shall be entered for him or her on the record; ...... and the trial shall proceed in the same manner as if he or she had pleaded not guilty, and for his or her trial had put himself or herself on the country": Dyott v. Commonwealth, 5 Wharton 77. The offense charged in that case was a misdemeanor, and the defendant had stood mute and the plea of not guilty had been entered for him. The offense involved in Commonwealth v. Place,
The plea of not guilty puts in issue every fact averred in the indictment. If the Legislature has the power, under the Constitution of Pennsylvania, to authorize the Quarter Sessions Court to permit one indicted for the offenses here charged to plead not guilty and waive trial by jury it has not done so. The *492
question is whether, in the absence of any statute authorizing it, the court had jurisdiction to try the defendant, without the intervention of a jury. At common law no court has authority to determine, without a jury, even in the case of a petty offense, the issues of fact arising, when the defendant pleads not guilty to an indictment, unless authority to do so is expressly conferred by statute. It has been held in states having constitutions similar to that of Pennsylvania that a prisoner may waive his right to a jury trial, if he chooses to do so and the Legislature has conferred upon the tribunal the jurisdiction to try cases in that manner, but the mere consent of the defendant cannot confer jurisdiction to try him upon any tribunal which has no such jurisdiction conferred by statute. Consent cannot confer jurisdiction in a criminal proceeding, cannot empower the court to act upon subjects which are not committed to its determination and judgment by the law. The law creates courts and upon considerations of public policy defines and limits their jurisdiction and manner of its exercise. Until the Legislature provides some tribunal (or machinery) for the trial of crimes or misdemeanors, in courts of record, without a jury, the courts are without jurisdiction to assume such power: Cancemi v. The People,
It is contended on behalf of the Commonwealth that the proceeding in the court below should be sustained because of the decision of the Supreme Court in Commonwealth ex rel. Ross v. Egan, Warden,
An exhaustive examination of the authorities has convinced us that the learned judge of the court below was without jurisdiction to try and determine the issues of fact involved, without the intervention of a jury. As we have already stated the question of the authority of the Legislature to confer jurisdiction upon some tribunal to try the issues of fact involved in criminal proceedings, without the intervention of a jury, is not involved in this case. Until the Legislature does by statute confer jurisdiction upon the court to try issues of fact in criminal cases without the aid of a jury, the courts are without jurisdiction to so proceed. The arguments based on convenience, saving of time and money are for consideration of the Legislature. Such arguments ought not to have weight with the courts and thus induce them to usurp legislative functions.
The judgment is reversed and the record remitted for further proceedings. *495