22 A.2d 46 | Pa. Super. Ct. | 1941
Argued May 6, 1941. A true bill of indictment, in three counts, was returned against Anna Kramer, charging her with violating the laws regulating the possession, sale, etc., of alcoholic liquors (Act of November 29, 1933, Sp. Sess. P.L. 15, and its amendments).
On September 12, 1940, she was arraigned in court and pleaded `not guilty'; and the same day, pursuant to the Act of June 11, 1935, P.L. 319, she signed and filed, with the consent of the court, the district attorney, and her attorney of record, a waiver in writing of her right to a trial by jury, and elected to be tried by a judge without a jury according to law.1 *93
Accordingly the trial proceeded before Judge ALESSANDRONI without a jury. At the close of the Commonwealth's case, the defendant demurred to the evidence on the ground that the allegata and probata did not agree. This having been overruled, the defendant offered her testimony, wherein she admitted the possession of the liquor testified to by the Commonwealth's witnesses. After hearing the evidence on both sides, the trial judge rendered a general verdict of guilty as indicted, in accordance with the procedure prescribed in the second section of the Act of 1935, supra. A motion for a new trial was refused and sentence was pronounced. Defendant appealed to this court.
The appeal raises two questions: 1 — The constitutionality of the Act of June 11, 1935, P.L. 319, which permits the waiver of trial by jury in certain criminal cases. 2 — Was there such a variance between the indictment and the evidence as to require the demurrer to the evidence on that ground to be sustained?
1 — The Act of 1935 is not unconstitutional.
It is proper to note that the constitutionality of the Act of 1935 was not raised or questioned in the court below, either in the motion for new trial or elsewhere. Section 2 of the Act provides, inter alia, that the "said trial judge may, after hearing the case, order the withdrawal or waiver of trial by jury withdrawn, and order and direct that the case be tried before a jury." Had the question been raised in the lower court, the trial judge might have ordered the withdrawal of the waiver of trial by jury and directed that the case be tried before a jury. By such inaction defendant may have lost the right to raise the question now. See Com. ex rel. Ross v. Egan,
The clauses of our Constitution, which appellant claims were violated are the sixth and ninth sections of Article I, (Bill of Rights), as follows:
"Sec. 6. Trial by Jury. Trial by jury shall be as heretofore, and the right thereof remain inviolate."
"Sec. 9. Rights of Accused in Criminal Prosecutions. In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land."
As bearing on the construction to be given these sections, the appellant also cites Article v, sec. 27, as follows:
"Sec. 27. Litigants may Dispense with Jury Trial. The parties, by agreement filed, may in any civil case dispense with trial by jury, and submit the decision of such case to the court having jurisdiction thereof, and such court shall hear and determine the same; and the judgment thereon shall be subject to writ of error as in other cases."
We have given all these clauses full and careful consideration and are of opinion that they do not require us to hold the Act of 1935, supra, to be unconstitutional.
We will take up the sections in order.
(1) What is the effect of the provision, "Trial by jury shall be as heretofore, and the right thereof remain inviolate"? This clause of the Constitution appeared *95 verbatim in the Constitutions of 1838 (Art. IX, sec. 6) and 1790 (Art. IX, sec. 6). The corresponding provision in the Constitution of 1776 was found in "Clause Eleventh" of theDeclaration of Rights,2 and "Section the Twenty-fifth" of thePlan or Frame of Government, to wit:
"Eleventh: That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred. . . . . . .
"Section the Twenty-fifth. Trials shall be by jury as heretofore;And it is recommended to the legislature of this state, to provide by law against every corruption or partiality in the choice, return or appointment of juries."
The eleventh clause, of the Constitution of 1776, above quoted, is limited to "controversies respecting property" and "suits between man and man," which are civil causes. But the twenty-fifth section of the same Constitution, and section 6 of Article I of the Constitution of 1873 [Art. IX, sec. 6 of the Constitutions of 1790 and 1838] are general, and the `Trials by Jury' referred to therein apply to both civil and criminal cases.
It is to be noted, however, that it is the right to a trial by jury which is to remain inviolate in the Constitutions of 1790, 1838 and 1873; and it is the right of the parties in a civil action to a trial by jury, (which ought to be held sacred), which was secured under the Eleventh Clause of the Constitution of 1776. Most civil rights can be waived by the interested parties, except where the public policy of the Commonwealth is declared to be opposed to such waiver. *96
The privilege of waiving this right by the parties to civil
actions, without any allowance by the law-making body or the consent of the court, was specifically secured by section 27 of Article v of the present Constitution above-quoted, which there appears for the first time in constitutional form, and definitely makes certain, what was before inferable by implication. Voluntary arbitration of civil actions, in which the award or report of the referees to whom the case was submitted had the same effect as a verdict given by twelve men, was recognized as early as 1705 (Act of January 12, 1705, 1 Sm. L. 50); and compulsory arbitration in civil cases was provided for by the Act of June 16, 1836, P.L. 717, secs. 8 to 38. See also, Katakura Co. v. Vogue Silk Hosiery Co.,
(2) We come, then, to the clause relating to criminal prosecutions. In our present Constitution — and also in the Constitutions of 1790 and 1838 — this reads,3 "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information,4 a speedypublic trial by an impartial jury of the vicinage; . . . . . .
The corresponding Ninth Clause in the Constitution of 1776, was in this form: "That in all prosecutions for *97 criminal offenses, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial, by animpartial jury of the country, without the unanimous consent ofwhich jury he cannot be found guilty."
The reference to the `jury' in the ninth clause and in the twenty-fifth section of the Constitution of 1776, before quoted, evidently related back, to the Frame of Government of the Province of Pennsylvania (May 5, 1682), which is found in the "Charter to William Penn and Laws of the Province of Pennsylvania" published in 1879, under the direction of John Blair Linn, Secretary of the Commonwealth, often referred to as "The Duke of Yorke's Book of Laws," because they constitute the first part of the book. On page 100 of this volume is found the following:
"Trial by jury. "Eight. That all trials shall be by twelve men, and as near as may be peers or equals, and of the neighborhood, and men without just exception. In cases of life, there shall be first twenty-four returned by the sheriff for a grand inquest, of whom twelve at least shall find the complaint to be true; and then the twelve men or peers to be likewise returned by the sheriff shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men or any of them."
We have perhaps devoted more time than was necessary to the Constitutions of 1776, 1790 and 1838, but this was done in the hope of shedding some light on the meaning to be given the appropriate clauses in our present Constitution for it is the latter which the statute under consideration must violate, if it is to be declared unconstitutional.
We find that a jury trial, as applied to a criminal *98
prosecution, in the early days of this Commonwealth, whether as a province or state, was a public trial on an indictment,
returned as a true bill by at least twelve members of a grand inquest, held before a jury composed of twelve men of thevicinage or neighborhood, — selected out of a panel summoned by the sheriff — who must have unanimously agreed before the accused could be found guilty. See Wellitz v. Thomas,
It was the right to such a trial that was secured to the inhabitants of this Commonwealth by the constitutions above referred to.
But certain waivers of, or departures from, some of the incidents of such a trial were recognized at common law, or have been authorized by statute, which have been held not to be violative of the provisions of the constitution relating to jury trials.
For example, a defendant accused of crime could always waive a trial and plead guilty. So, too, he could demur to the Commonwealth's evidence — after his plea was entered and the jury was sworn, Com. v. Robinson, Pent's Appeal,
So too, the original provision as to a jury of twelve men was qualified by the Act of April 10, 1867, P.L. 62, which directed the jurors to be taken from the "whole qualified electors," and the Nineteenth Amendment to the Federal Constitution having extended suffrage to women, it was held in Com. v. Maxwell,
As previously pointed out, the obtaining of a true bill of indictment from the grand jury was an essential prerequisite to a trial by jury in a criminal prosecution within the meaning of the constitutional provisions above referred to; yet the Act of April 15, 1907, P.L. 62, which authorized a defendant to waive the finding of a true bill by the grand jury and plead guilty to an indictment prepared by the district attorney, without its presentation to a grand jury, was upheld as constitutional inCom. ex rel. [Wheeler Stanton] v. Francies,
During the First World War, probably because of a scarcity of jurors, trial by jury in both civil cases and criminal prosecutions was greatly curtailed in England, the source of our jury system. Following this, an attempt was made in this State to introduce a waiver of trial by jury in criminal prosecutions, without legislative authority, by having the defendant after entering a plea of not guilty, sign a stipulation in writing waiving a jury trial and requesting the court to determine the issues of fact and law involved and enter such verdict and impose such sentence as the facts and law required. The validity of this procedure came before this court in Com. v. Hall,
The judgment of the Superior Court was affirmed in an opinion by Chief Justice MOSCHZISKER,
The legislative action necessary to give the court jurisdiction to try a criminal case without a jury, which was lacking in Com.v. Hall, supra, has been supplied by the Act of 1935, now under consideration.
Section 2 of the Act provides as follows:
"When a defendant has waived trial by jury and elected to be tried by a judge without a jury, in accordance with the provisions of the preceding section, any judge of the court, in which the cause is pending wherein a waiver of trial by jury and election to be tried by a judge without a jury is filed, shallhave jurisdiction to hold the trial and shall proceed to hear,try, and determine all issues of law and fact, and to render ageneral verdict in like manner as if the defendant had puthimself upon the inquest or country for trial, and his cause werebeing tried before a jury, and the said trial judge may, after hearing the case, order the withdrawal or waiver of trial by jury withdrawn, and order and direct that the case be tried before a jury." (Italics supplied).
In the opinion in Com. v. Hall,
It is important to note, moreover, that in Patton v. UnitedStates,
While the question certified to the Supreme Court of the United States in Patton v. United States, supra, was whether, by the consent of the defendant, a trial could continue with eleven jurors, after the twelfth juror became incapacitated to serve, the court also held that there was no difference in substance between a complete waiver and consent to be tried by a less number than twelve. That the case is considered as having settled both questions is clear from later cases. In Brown v. Zerbst,
We are not impressed by appellant's contention that since Art. v, sec. 27, of the Constitution provides that jury trials may be dispensed with in civil cases, the maxim expressio unius estexclusio alterius compels the conclusion that the enactment of the act here considered is "specifically forbidden" by the constitution. The maxim is not of universal application but is applied only as an aid in trying to arrive at intention. SeeFazio v. Pittsburgh Rys. Co.,
This procedure furnishes all the necessary safeguards emphasized by Mr. Justice SUTHERLAND in Patton v. United States, supra.
The particular offenses charged in the indictment in this case could probably have been made punishable by the legislature without allowing a jury trial; they are offenses created by statute since the first constitutional provision as to trial by jury. See Com. v. Dietz,
While not controlling it may not be amiss to refer to the statement in the Commonwealth's brief that in Philadelphia County alone, in the three years 1938 to 1940, inclusive, 4185 bills of indictment were tried without a jury under this act, and yet its constitutionality has not previously been argued before an appellate court. This adds some weight in favor of sustaining its validity: Lavery v. Com.,
We are of opinion that the Act of 1935 is constitutional.
(2) On the question of variance between the indictment *106 and the proof, we are of opinion that there was no such variance as to require a reversal of the judgment.
The indictment contained three counts, each of which charged the commission, on April 12, 1940, of an offense in violation of the Liquor Control Act of November 29, 1933, supra, and its amendments, see 47 PS sec. 744-602.
The first count charged that the defendant unlawfully "did expose and keep for sale certain alcoholic, . . . . . . liquor . . . . . . containing more than one-half of one per cent of alcohol by volume, — the same not being alcohol or a malt liquor — to wit, one gallon of whiskey — she, the said Anna Kramer not being a manufacturer or a licensed importer of liquor . . . . . . and not being the holder of a liquor license duly issued by the Pennsylvania Liquor Control Board", etc.
The second count charged that she "unlawfully did possess certain liquor, to wit, one gallon and more of whiskey" not lawfully acquired by her prior to January 1, 1934 and not purchased by her from a Pennsylvania Liquor store, she the said Anna Kramer not being a manufacturer, or agent or employee of the Pennsylvania Liquor Control Board, nor the holder of a sacramental wine license or of an importer's license, and the said liquor not being alcohol or a malt liquor.
The third count charged that she did unlawfully keep within the Commonwealth "certain liquor, to wit, a quantity of a certain alcoholic, spirituous . . . . . . liquor . . . . . . containing more than one-half of one per cent of alcohol by volume, the same not being alcohol or a malt liquor, in a certain package, container and receptacle, which said package, container and receptacle . . . . . . had not been sealed while containing that liquor with the official seal of the Pennsylvania Liquor Control Board", etc. *107
The only witnesses called for the Commonwealth testified to having found in the residence of the defendant a one-gallon glass jug, half full of gin. It was in a drawer of the radio cabinet. They also found numerous glasses, a funnel and a hydrometer. Gin is not sold in State stores in gallon glass jugs and this container was not a State store container. Analyzed, the liquor was found to be gin, containing 49 per cent by volume of ethyl alcohol. On going to the second floor, one witness discovered a strong odor of liquor in the bath room; as they entered the premises defendant was coming down the steps from the second floor.
The defendant, testifying in her own behalf, admitted having the gin in her possession, but alleged that it had been bought in quart bottles and poured by her into the glass gallon jug.
Her counsel admitted that she had pleaded guilty on March 4, 1940, to a violation of the Liquor Control Act and been sentenced to thirty days imprisonment in the County prison (No. 409 December Sessions 1939), as averred in the indictment.
Even if the scilicet, or "to-wit", in the first two counts should be held to restrict the liquor referred to in them to `whiskey', and could not be disregarded as surplusage, as to which we pass no judgment at this time, no such restriction appears in the third count, which is especially appropriate to the testimony of the Commonwealth's witnesses, and the conviction on that count supports the sentence imposed: Com. v. Gardner,
If on a general verdict of guilty, any count will sustain the verdict and sentence, the judgment will not be reversed. Com. v.Shanklin,
The defendant was not surprised at the trial. She knew what liquor had been seized by the enforcement officers and admitted possessing the gin. She can protect *108
herself on any future indictment for the same offense by showing that the two offenses were identical, on a plea of autrefois convict: Com. v. Speiser,
The assignments of error are overruled. The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as she may be there called and that she be by that court committed until she has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.
