99 Pa. 410 | Pa. | 1882
delivered the opinion of the court, February 6th 1882.
A writ has been issued in this case in accordance with the provisions of the statute of Westminster, 13 Edw. I., c. 31 (Roberts’ Dig. 92), to Thomas K. Finletter, one of the judges of the Court of Quarter Sessions of Philadelphia county, founded upon the complaint of the plaintiffs in error, that on the trial before him various exceptions were taken and alleged to certain of his rulings, and to his charge, and that he had refused to affix his seal to those exceptions, commanding him to affix his seal thereto. To this writ Judge Finletter has filed an answer.
The courts, however, have relaxed this strictness, and all that is required now is that the exception should be taken, and noted at the time: Stewart v. Huntingdon Bank, 11 Serg. & R. 267. There is nothing in any Act of Assembly, to prevent the courts from returning to the old strictness under the statute of Westminister. But it is very plain, that this new practice required to be regulated by rules of court, and a reasonable time fixed within which the court should be called on to seal the bill. It ought to be within such time, as that the matter may be still fresh in the recollection of the court. Accordingly, the civil courts have generally adopted rules to the effect that the bill should be presented to the court within a certain period, and finally settled and sealed within a defined time thereafter.
There is no reason why criminal courts should not adopt the same rules. Indeed, it may well be doubted whether under the general and comprehensive terms of the Act of 1874 these rules in civil cases would not be applicable. However, it is unnecessary to decide that question here, as it appears by the answer of the respondent with a copy of the record, that they have been expressly adopted by the judges for the courts of Oyer and Terminer and Quarter Sessions of Philadelphia county. They ought certainly to be enforced. It is a mistake to suppose that they can be waived by the district attorney for the Commonwealth. They are intended for the protection of the judge, as well as for the Commonwealth. The idea put forth in the oral argument, that where the parties have agreed to a bill of exceptions, the court is bound to seal it, is certainly something new under the sun. The answer shows clearly that whatever the district attorney may have done, the respondent never waived his right to insist upon the enforcement of the rule. When he was first requested to fix a time for settling the bill, which was long after the time prescribed by the rule had expired, he raised the objection, but fixed a subsequent time to hear the application. At the time fixed he was in court, as also the • district attorney and two of the defendant’s counsel, but no application was made. Other times were appointed, but the bill was not presented until several weeks after, when he refused distinctly on the ground that it was not presented for settlement in time, and gave his reasons in writing, but added, “ there maybe such explanations of this delay as will satisfy
Nothing further need be added. There can be no traverse of the respondent’s return : Conrow v. Schloss, 5 P. F. Smith 29. If there exist any reasons why this rule should not apply in criminal cases it is for the legislature to annul it, and provide a remedy. It is very evident that we have no power to order the respondent to file liis charge, or his answers to the points, of his notes of testimony.
It is ordered that the respondent go, without day.