Commonwealth v. SmihalCommonwealth v. Smihal
- Reporters:
- , , ,
- Before:
- Ervin
Opinion by
This is an appeal from the refusal of the Court of Quarter Sessions of Somerset County to grant the defendant’s motions in arrest of judgment and for a new trial after his conviction by a jury and sentence on a charge of fornication and bastardy.
December 31, 1942, the prosecutrix made information under oath before a Justice of the Peace, charging the defendant with fornication and bastardy, alleging the offense took place “on or about the 21 day of February A. D. 1942 and on various other dates after the date above mentioned. . . .” At the time of the making of the information the defendant was overseas in the TJ. S. Army, having been inducted into the service on April 29, 1942, and having gone overseas July 1, 1942. On January 8, 1943, the Justice of the Peace returned the information, stating thereon that the defendant Avas a fugitive from justice and that it was reliably re
The prosecutrix testified she met the defendant in November, 1941. She testified that she kept company with him from November, 1941 until he was inducted into the Army in April, 1942. She also testified that she had sexual relations with the defendant on various occasions during the period between November, 1941 and April; 1942, the last occasion- being on April 25, 1942 just prior to his induction. The evidénee' also reveals that the prosecutrix and defendant- corresponded after - the-defendant’s entry into -the service but 'the prosecutrix testified that she received- no further letters from the defendant after she wrote to him and advised that she was pregnant. Defendant denied having sexual relations with the prosecutrix prior to his in
Defendant contends he was denied a speedy trial in violation of his constitutional rights. Article I, Section 9, of our Constitution provides that “In all criminal prosecutions the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage. . . .” The trial of the defendant was not held until 13 years after he was indicted and 11 years after his return home from the armed services. However, when the indictment was submitted to the grand jury on January 25, 1943, it was done so on the basis that the defendant was a fugitive from justice. Defendant, insofar as the Commonwealth was concerned, continued in the status of a fugitive from justice and was thus unavailable for trial until his whereabouts were ascertained by the prosecutrix on March 2, 1956. On the following day the prosecutrix brought the matter to the attention of the district attorney. Defendant was arrested on March 22, 1956 and was tried at the next term of court on May 24, 1956. It is therefore apparent that the defendant was given a speedy trial after he became aware of the charge against him and after the district attorney had knowledge of his whereabouts.
The question of delay in bringing him to trial in violation of his constitutional right to a speedy trial should have been raised by the defendant in a motion to quash the indictment. As stated in 8 R.C.L. §28, p. 74: “The right of the accused to a discharge for the failure of the prosecution to put him on trial within the required time may be waived by his own conduct. He must claim his right if he- wishes its pro? tection. If he does - not make a demand -for trial, or resist a continuance of- the case; or if. he consents to continuances, or -
if he -goes to- trial without objecting that- the time limit -has passed,
or if he does not
Defendant also contends the learned trial judge erred in his charge when he, in effect, instructed the jury to consider the indictment as evidence. The part of the charge which defendant contends ivas error reads as follows: “'Let us say to you in connection with the paper prepared in the Squire’s office, when you or anybody else would go to the Squire’s office and want to make an information and swear out a warrant against another that is what is done in the Squire’s office, and on the basis of that then the matter comes into court down here and filed in the office of the Clerk of Courts and then comes over to the District Attorney’s office where the bill of indictment is prepared and that bill of indictment is what then goes to the Grand Jury, and it is that bill of indictment that you consider, and where they say on or about the 21st of February, 1942, on or about could have been before or after the 21st of February, 1942, in this case, and the District Attorney pointed out to you there must have been sufficient evidence before the Grand Jury on the bill of indictment which would have led them to believe that there was sufficient evidence for reasonable probable cause to prefer the charges. You will take all of that into consideration in this case ” (Emphasis added)
An indictment is a final accusation by the grand jury charging a pérson with the commission of a crime, and such charge, in itself, is no indication of an accused’s guilt. An indictment is not evidence and a conviction resting upon an instruction that it may be so
Judgment of sentence reversed and new trial awarded.