256 Pa. 620 | Pa. | 1917
Opinion by
John Staush, the appellant, entered a plea of guilty to an indictment charging him with murder, and it thereupon became the duty of the court below, under Section 74 of the Act of March 31, 1860, P. L. 382, to “proceed, by examination of witnesses, to determine the degree of the crime and to give sentence accordingly.” Three of the five judges of that court met to perform the duty imposed upon it, and witnesses were examined before them. At the examination the Commonwealth was represented by the district attorney, and the prisoner, with his counsel, was present. The testimony was taken down by the court stenographer, whose transcript of the same was duly approved by one of the judges and ordered to be filed. After the hearing, and before the three judges had reached any conclusion as to the degree of the prisoner’s guilt, they asked the president judge of the court — who had not been present at the examination of the witnesses —to join them in their consideration of the testimony taken, for the purpose of fixing the degree of the crime. After reading the evidence, he took part in their deliberation, and found that the prisoner was guilty of murder
A tribunal, specially designated by the legislature, fixes the degree of guilt, upon conviction by confession, on an indictment charging murder. Such a case is no longer for a jury, whose province it is to fix the degree of homicide in every case where the accused goes to trial on his plea of not guilty. The’legislature might have provided that, on a plea of guilty,, a jury should hear the testimony relating to the crime for the sole purpose of fixing the degree of guilt; but it has not done so. It has committed that duty to the court having jurisdiction of the indictment, and perhaps wisely so, in view of human sympathy to which jurors not infrequently yield when called to pass upon the life or death of a fellow man. To enable it to discharge this duty the court must examine witnesses and hear what they know and are able to truthfully tell of the circumstances attending the admitted felonious killing. As this statutory provision, relating to a criminal procedure, must be strictly construed, the examination of witnesses by the court means its seeing and hearing them- — not a mere reading of their testimony by a judge or judges who neither saw nor heard them— and it means that every member of a court passing upon the degree of guilt in a homicide case must see and hear the witnesses upon whose testimony the question is to be determined. If it had been for a jury to determine the degree of the appellant’s guilt, and but eight of the jurors had seen and heard the witnesses, a verdict of the twelve condemning him to death would be promptly set aside, if the other four jurors had simply read the testimony of
We are not to be understood as saying, or even intimating, that, on the testimony of the witnesses seen and heard by the three learned judges of the court below, they would have erred in adjudging the prisoner guilty of murder of the first degree, for that is not the question before us. All that we now decide is that error was committed in having the president judge take part, under the circumstances stated, in a consultation and deliberation which resulted in a finding necessarily followed by the judgment from which we have this appeal.
Judgment reversed and procedendo awarded, with leave to the prisoner to renew in the court below his motion for leave to withdraw his plea of guilty.