Commonwealth v. Klein

40 Pa. Super. 352 | Pa. Super. Ct. | 1909

Opinion by

Rice, P. J.,

1. After describing the ordinary mode of instituting criminal proceedings, namely, by warrant of arrest founded on probable cause, supported by oath or affirmation, followed by a hearing before a committing magistrate, Judge King said: “It is the fitness and propriety of the ordinary mode of criminal procedure, its equal justice to accuser and accused, that render it of almost universal application in our own criminal courts and make it unwise to depart from it, except in special circumstances, or pressing emergencies:” Lloyd’s Case, 3 Clark 188. This statement of the general rule recognizes the possibility of special circumstances or pressing emergencies which will justify resort to one or the other of the extraordinary modes of criminal procedure which Judge King then went on to describe: “The first of these is where criminal courts of their own motion call the attention of grand juries to and direct the investigation of matters of general public import, which, from their nature and operation in the entire community, justify such intervention. The action of the courts on such occasions, rather bears on things than persons, the object being the suppression of general and public evils, affecting, in their influence and operation, communities rather than individuals, and, therefore, more properly the subject of general than special complaint; such as great riots that shake the social fabric, carrying terror and dismay among the citizens; general nuisances affecting the public health and comfort;’ multiplied and flagrant vices tending to debauch and corrupt the public morals and the like. In such cases the court may properly, in aid of inquiries directed by them, summon, swear” (the oath may now be administered by the foreman of the grand jury) “and send before the grand jury, such witnesses as they may deem, necessary to a full investigation of the evils intimated, in order .to enable the grand jury to present the offense and offender.” This extraordinary power is to be exercised sparingly, with great caution and only when special circumstances or pressing emergencies require it for the suppression of general and public evils, affecting in their influence and operation communities rather than individuals. It is nevertheless apparent from the foregoing statement of the rule, as well as from the cases in which the exercise of the power has been held not to be an abuse of the sound judicial discretion vested in the criminal courts, that the power is not confined to cases of great riots or general public nuisances, but extends to the investigation and suppression of such general public evils as were given in charge to the grand jury in the present case. The nature of the subject of the investigation, and the special circumstances which moved the court to order it are sufficiently set forth in the suggestion filed by the district attorney, the order of the court thereon and the return of the grand jury, and need not be enumerated here. It is enough to say that the occasion for the exercise of this extraordinary power was much more urgent than in Com. v. Hurd, 177 Pa. 481, and was equally as plain as in Com. v. Dietrich, 7 Pa. Superior Ct. 515, in each of which cases the action of the court was sustained. We conclude, therefore, that the proceeding in which the defendant was called to testify was a lawful proceeding.

2. The subpoena served on the defendant commanded him to appear before the grand jury at a specified hour, day and place “to testify all and singular those things which you shall know in a certain investigation of charges of bribery and corrupt solicitation of eouncilmen in the city of Pittsburg in our said court depending, and then and there to be tried between the commonwealth and a person or persons unknown, defendant on the part of the common-wealth. And herein fail not under the penalty of one hundred pounds.” We cannot agree with counsel for appellant that the same defects appear in this subpoena as in the subpoena referred to in Hartranft’s Appeal, 85 Pa. 433. The defect or defects in the subpoena in that case were thus pointed out by Justice Gordon: “It sets forth no case, present or prospective, nor does it state for whom, or at whose instance, the defendants were to be subpoenaed. As this writ is a very arbitrary one, obliging the citizen to leave his home and abandon his business, however important it may be, and give his attendance at court, wherever that may be sitting, it is very important to know what parties are entitled to it; for if it be issued at the suit of one having no right thereto, it is no contempt to disobey it. The commonwealth may have this process in any proceeding where its interest is apparent, whether as a suitor or a prosecutor, and so may parties in courts, either civil or criminal; but we have yet to learn that any such right exists in a court, in its mere character as a court, separated from the case which it has in hand. So this, as well as every other compulsory process, must show upon its face that it was issued for some person or party having a right thereto, otherwise it is nugatory and void, and disobedience to its mandate involves no penalty whatever. In the case before us, there was the use of the writ of subpoena, as a mere order of the court, without statement of party or case, commanding the defendants to appear before the grand jury, for the purpose of giving their testimony touching the late riots.” In the same connection Justice Gordon said that no doubt the court might have directed a subpoena to issue for the commonwealth in any case where the commonwealth was a party, “ or where it was apparent it was in some way interested in some case or transaction then depending.” Here the case or proceeding in which the defendant was to testify was set forth in the subpoena as clearly as from its nature was possible ; it is apparent on the face of the subpoena that if the commonwealth was not technically a party against a named defendant, it was a party against the unknown persons the investigation was intended to discover, or, to say the least, was vitally interested in the matter then depending; and it is also apparent that the appellant was to testify in behalf of the commonwealth in that investigation. We entertain no doubt that it was a lawful subpcena and that he was not at liberty to disobey it because of any supposed defects of form.

3. We are not disposed to go into an elaborate discussion of the question whether under the circumstances set forth in the appellant’s petition to quash the attachment he could claim the privilege to refuse to answer questions that might incriminate him, because the time for claiming that privilege, if he had it, had not arrived. He refused to go before the grand jury to testify to any matter, and it is apparent that he might have been asked questions the answers to which would not have affected him prejudicially in any way. In Eckstein’s Petition, Yard’s Appeal, 148 Pa. 509, it was held, that under the provisions of the act of June 1,1885, each branch of councils in cities of the first class was given power to compel the attendance of witnesses, and that upon the issuing of a subpcena it was the duty of the person summoned to appear in reponse to the summons and be sworn as a witness, and that he could not refuse to appear and be sworn on the ground that he was already under indictment for alleged criminal connection with the matters which the committee proposed to investigate and that the answers to questions propounded to him might tend to prejudice him in the criminal proceedings then pending. The court said: “The investigation which was in progress before the councils was a lawful investigation. The subpcena was lawfully issued, and it was his duty to obey it. Upon his refusal to do so, it was lawful for the court of common pleas to compel such obedience. It cannot be tolerated for a moment that a man may be allowed to disobey a lawful subpcena upon his mere opinion that the subpoena had been improperly issued, or that the particular tribunal before which he was summoned to appear has no jurisdiction to proceed. It was time enough for the appellant to have raised any objection after he had obeyed the subpoena, and been sworn as a witness. If a question had then been asked which tended to criminate him, or which was in violation of any of his rights as af citizen, under the constitution and laws of this commonwealth, he could have dedined to answer the same, and any question touching his rights as a witness could have been disposed of in a legal and orderly manner.” Having determined that the proceeding in which the appellant was summoned and subsequently directed to testify was a lawful proceeding, and that the process was lawful, the same principle is applicable here.

4. The suggestion that the contempt of the appellant was only punishable by fine, cannot be sustained. In Com. v. Gibbons, 9 Pa. Superior Ct. 527, affirmed in Kelly's Contested Election, 200 Pa. 430, it was held that where a person refused to answer questions propounded to him by examiners in a contested election, and appeared in open court and made answer to a rule to show cause why he should not be attached for contempt, and, in his answer, refused to obey an order which had been made upon him to appear before the examiners and answer the questions, the offense was committed in open court. This would seem to be conclusive of the question before us. See also as to punishment by imprisonment Com. v. Bell, 145 Pa. 374, and Com. v. Perkins, 124 Pa. 36.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county to the end that the sentence be fully carried into effect.