Commonwealth v. Murphy

45 Pa. Super. 185 | Pa. Super. Ct. | 1911

Opinion by

Rice, P. J.,

During the same term in which it was given a judgment was amendable, at common law, in form or in substance, but after that term it was amendable no further than was allowed by the statute of amendments: 2 Tidd’s Pr. 942. The reason given for the distinction was that during the term the record was in the breast of the judges and not in the roll: Blackamore’s Case, 8 Coke’s Reports, *157 (a); Bac. Abr., Amendment and Jeofail. While the reason for the rule of the English courts, arising from the peculiar manner in which the record was there made up and kept, does not exist with us, the rule as to opening or vacating judgments obtained adversely has been recognized in many cases as existing here: Mather v. Patterson, 33 Pa. 485. A leading case, where its application to sentences upon indictments was elaborately considered, is Com. v. Mayloy, 57 Pa. 291. It was there held that the criminal courts of this state have not power, when sentence is passed, to enter a rule to reconsider their judgment and at a subsequent term alter the sentence. For a stronger reason the court cannot reconsider its judgment in a subsequent term, where no rule to reconsider was entered in the term when sentence was pronounced. There must come a time when this power to reconsider and alter or revoke a sentence must cease, and, by the great weight of authority, it ceases when a new term begins. But in many counties of the state the courts, by virtue of authority conferred upon them by statute, fix the length of their regular terms with reference to the time that will likely be required for the trial of jury cases, with the result that there is an interim between trial terms, and in that interim hold sessions pursuant to adjournments from day to day or from time to time. For some statutory purposes the term fixed by statute or rule of court is held not to comprise such adjourned courts, but' this is for the reason that the legislative intent requires the thing to be done at the regular fixed term. See Overseers of the Poor of Cherry Twp. v. Overseers of the Poor of. Marion Twp., 96 Pa. 528. It is well settled, however, that a person convicted by the jury at a regular term may be sentenced at one of these adjourned courts, Williams v. Com., 29 Pa. 102, but in such case, if the position of commonwealth’s counsel be correct, the court has not power to reconsider and alter or revoke the sentence at a subsequent adjourned court, even though it be prior to the beginning of the next term. It will be seen, upon a moment’s reflection, that, under this strict interpretation of the rule under consideration, the court has no power to revoke a sentence imposed at an adjourned court. No Pennsylvania case of binding authority has come to our notice in which this has been expressly decided, and, in the absence of such decision, we are unwilling to adopt the conclusion to which the argument of counsel leads. The better view seems to be that when sentence is imposed at an adjourned court, the. day to which the court was adjourned is to be treated for that purpose as part of the term. This is conceded by the commonwealth’s counsel, and we are not convinced that a subsequent day, before the beginning of the next term, to which the court is again regularly adjourned may not, with equal propriety, be treated as part of the term for the purpose of exercising the power under consideration. This view has some support in Leib v. Com., 9 Watts, 200, 221. We therefore do not sustain the first proposition of counsel for the commonwealth.

Their second proposition is that the order of April 30, 1910, even if made within the term, was made by a judge of the court, and not by the court, and, therefore, was invalid. We do not understand it to be claimed that the court had not been regularly adjourned to April 30; and while it is true that only the trial judge was present at that session, it seems to be undisputed that the other two judges of the court had notice of the application for reconsideration to be then presented. If counsel mean by their statement of the proposition that the presence of a majority of the judges of the court is invariably essential to the validity of a session at which an application for reconsideration of a sentence is to be presented and acted on, we cannot agree to the proposition. Section 2 of the Act of April 7,1876, P. L. 19, provides as follows: “In any county forming a separate judicial .district the president judge or additional law judge of the court of common pleas of such county, or either of them in the absence of the other, shall have power to hold courts of quarter sessions, and oyer and terminer and orphans’ court, and to hear and determine all causes, matters and things cognizable therein.” It is common practice for the trial judge, the court being regularly convened, to impose sentence although he be sitting alone. Such action is not the action of the judge, but of the court, and the same is ordinarily true where he is the only judge sitting at the time of an application to reconsider a sentence imposed by him. But here a somewhat different question is presented, which arose in this way. The relator was convicted by the jury before one of the judges of the court. The rule to show cause why a new trial should not be granted was considered by the three judges of the court, as is common practice where there is more than one judge, and all concurred, after consultation and deliberation, in discharging the rule and in the sentence imposed. If this were a case where one of these judges undertook, when sitting alone, though at a session of the court regularly convened, to substitute his discretion in the matter of the sentence for that of the three judges of the court exercised after deliberation and conference, it might well be questioned whether such action could be sustained: Butts v. Armor, 164 Pa. 73. But it seems, when the order of April 30 is considered as an entirety, that the judge presiding on that date did not undertake or assume the power unqualifiedly to overturn and set aside the deliberate action of the court in which all of the judges concurred. Apparently, his action was taken for the purpose of holding the defendant’s application open for consideration by all of the judges at a subsequent date notwithstanding the expiration of the term. He did not undertake to order an indefinite suspension of sentence, but to suspend sentence until the matter should be considered by his associates and himself acting together. This we believe to be a fair interpretation of his order. It certainly would have been within the power of the court to resentence the relator, since, upon consideration, the court was of opinion that the punishment imposed by the original sentence should not be modified and that sentence should not be further suspended. The difference between that action and the action of the court on May 9, in which a majority of the judges concurred, is one of form rather than of substance, and we are not prepared to hold that it is of sufficient importance to warrant us in discharging the relator from the operation of the latter order.

The petitioner, William J. Jones, is remanded to the custody of the warden of the Schuylkill county prison to serve out so much of his sentence as had not expired on May 25, 1910,.the date upon which he was released under bail pending the disposition of this writ of habeas corpus.