Stewart v. Commonwealth
11 A. 370
Pa.
1887
Check Treatment

Opinion,

Mr. Justice Williams :

An examination of the record discloses but one reason for interfering with the verdict and sentence in this case. This is brought-to ‍​​​‌​‌​‌​‌‌‌​‌​‌​‌​​​​‌​​​‌​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​‍our attentiоn by the fifth assignment of error. It' appears that, at the conclusion of the evidencе, the defendant *381asked the court to permit him to be beard by his counsel before tbe jury. Tbis tbе court refused to do, giving as tbe reason tbat “ there is nothing in tbe judgment of tbe court to justify wasting timе argumg.” Tbe case was then left to tbe jury under tbе charge of. the court. ‍​​​‌​‌​‌​‌‌‌​‌​‌​‌​​​​‌​​​‌​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​‍To tbis action оf tbe court an exception was taken at tbe time and a bill duly sealed. Wo have thеrefore to determine whether tbe defendant’s right to be beard by bis counsel before tbе jury is subject to tbe discretionary power of tbe judge presiding at tbe trial.

Tbe right to be so hеard, is expressly provided for in tbe constitution of tbe commonwealth. Tbe “declaration of rights” asserts in tbe plainest terms tbat “In all criminal ‍​​​‌​‌​‌​‌‌‌​‌​‌​‌​​​​‌​​​‌​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​‍prosecutions tbe accused bath tbe right to be heard by himself and bis counsel.” Tbe сonstitution is tbe law paramount which binds all departments of tbe government.

Tbe legislatiue cannot take away what tbe constitution guarantees, nor can the courts. On tbe cоntrary, it is the duty of tbe judges to obey the constitution and to enforce observance оf its provisions on others. Courts may regulate tbе manner and time for the exercise of tbe right to ‍​​​‌​‌​‌​‌‌‌​‌​‌​‌​​​​‌​​​‌​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​‍be beard by counsel, and may limit the number and tbe length of tbe addresses to be made tо the jury by general rule or by an order made in thе particular case. These subjects are within the exercise of judicial discretiоn, and merely regulate the exercise of tbe constitutional right.

To deny tbe right altogethеr is beyond the power ‍​​​‌​‌​‌​‌‌‌​‌​‌​‌​​​​‌​​​‌​‌‌​​‌‌​‌​‌‌​‌​​​‌‌​​‍of tbe courts. In Cathсart v. Commonwealth, 37 Pa. 108, a similar question was raised, and, in tbe opinion of tbe court, Justice Strоng said: “ Tbe right to be beard by himself and his counsel is doubtless a constitutional right, and if it bad been denied it would have been error.” In tbe present case tbe right was denied. Tbe fact tbat it was dеmanded by the accused and tbat the cоurt refused to allow its exercise appear clearly upon tbe record, and we have no alternative.

For tbis error a cause, which seems to have been fairly tried in other respects, must go back for re-trial.

Judgment reversed and venire facias de novo awarded.