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July 20, 1950



Milton W. Lamproplos, Pittsburgh, for appellant.

Frank J. Docktor, Dist. Atty. Wm. C. Porter, First Asst. Dist. Atty., Wm. R. Dennison, Jr., Asst. Dist. Atty., all of Washington, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Arnold

[ 167 Pa. Super. Page 323]

ARNOLD, Judge.

The Court of Common Pleas of Allegheny County dismissed a petition for a writ of habeas corpus presented by the relator, Mike Turk, an inmate of the Western State Penitentiary, and he appealed. The relator requested counsel on his appeal, and this Court

[ 167 Pa. Super. Page 324]

    appointed Milton W. Lamproplos, Esq., to represent him. We express our thanks to counsel for his oral argument and able brief, both of which exhibited a high degree of skill and industry.

On January 28, 1948, Turk was indicted in Washington County for consensual rape upon his daughter, Ester Turk, and the case went to trial in the oyer and terminer on February 9, 1948. Throughout this trial Turk was represented by counsel chosen and employed by him. On February 10, 1948, the jury returned a verdict of guilty. There was no motion for a new trial. On February 17, 1948, Turk was sentenced to a term of not less than seven and one-half years nor more than fifteen years, effective from February 10, 1948. From this judgment he did not appeal.

It is an admitted fact that when the case was tried in the Oyer and Terminer of Washington County neither the testimony nor the charge of the court was stenographically reported.

It is alleged that this omission constituted a violation of the due process provision of the Federal Constitution, Amendment 14, and also of the Pennsylvania Constitution of 1874, Article I, Section 9, P.S. to the effect that a person shall not be deprived of his liberty unless by 'the law of the land.'*fn1 It is also asserted that Turk was deprived of procedure under which his conviction might have been reviewed, and he alleges that trial errors were committed.

Court stenographers or reporters were unknown to the common law. Their appointment and duties are purely statutory and there is no constitutional requirement

[ 167 Pa. Super. Page 325]

    that a trial be stenographically reported. The first authority for their appointment was the Act of 1874, P.L. 182, which gave the courts a discretion to appoint. The subsequent acts up to 1907 provided either discretionary appointment,*fn2 or applied only to civil cases.*fn3 The Act of 1887, P.L. 199, first authorized such appointments for the criminal courts. That Act was repealed by the Act of 1907, P.L. 135, which provided that the proceedings of the criminal courts be reported 'whenever in the opinion of the trial judge such services shall be necessary.' The Act of 1907 was amended by the Act of May 5, 1911, P.L. 161, which provided that the proceedings be reported 'whenever requested so to do by any defendant * * * or his * * * counsel, before or during the trial * * *.' (Italics supplied). See 17 P.S. § 1802.'

It is admitted that neither the defendant nor his counsel (chosen and employed by him) requested the trial court to have the case reported stenographically.

As to appeals in criminal cases, the common law writ of error was not of right but of grace, and was procured by a petition setting forth probable cause. Under the Constitution of 1790, Article V, Section 5, and the Constitution of 1838, Article V, Section 5, the party accused 'may, under such regulations as shall be prescribed by law, remove the * * * proceedings * * * into the supreme court.' (Italics supplied). Various statutes provided that an appeal was only on allowance by one of the justices of the Supreme Court or sued out with the consent of the Attorney General.*fn4 By the Act of November 6, 1856, Laws of 1857, P.L.

[ 167 Pa. Super. Page 326795]

, in felonious homicide the appeal was of right. Under the Criminal Procedure Act of 1860 both as to felonious homicide and proceedings in the oyer and terminer the appeal was only on cause shown.*fn5 Under the Constitution of 1874, Article V, Section 24, an appeal in felonious homicide is of right.*fn6 In all other criminal cases the appeal is 'as may be provided for by law.'

Under the Act of June 24, 1895, P.L. 212, creating the Superior Court, an appeal from the courts of oyer and terminer is of right.*fn7 An appeal from the quarter sessions was on allowance by a judge of the Superior Court.*fn8 By the Act of May 19, 1897, P.L. 67, 12 P.S. § 1133 et seq., all appeals to the Superior Court in criminal cases are of right.

At common law, and until the Act of 1856, supra, an appeal in a criminal case was, in effect, merely a motion in arrest of judgment. Neither the sufficiency of the evidence nor any trial errors were reviewable.*fn9 In Pennsylvania that situation was somewhat alleviated because the Justices of the Supreme Court then sat in the oyer and terminer, a power which still exists but is now rarely exercised.*fn10 Trial errors were not reviewed because there was no method of taking exceptions in criminal cases. In civil cases exceptions were taken under the Statute of Westminster, 2d, 13 Edward I, Chapter 31, which has always been in force in Pennsylvania.*fn11

[ 167 Pa. Super. Page 327]

Exceptions were taken by writing out the question, objection, answer and ruling, or a part of the charge of the court, and the exception thereto, to which the court would then affix its seal. Later the signature of the court took the place of the seal. Thus was taken a complete bill of exceptions.*fn12 But that Statute only applied to civil cases and was inapplicable to the criminal causes.*fn13 The Act of 1856, supra, relating only to felonious homicide, provided that exceptions should be taken 'as in civil cases'; and under the Act of May 19, 1874, P.L. 219, 19 P.S. § 1188, bills of exception were allowed in all criminal cases according to the practice in civil causes. Thus exceptions in all criminal cases may be taken under the Statute of Westminster 2d,*fn14 or by oral objection and exception when the case is stenographically reported.*fn15

The relator claims that there were trial errors in the admission and rejection of evidence, and that the testimony was insufficient to sustain the verdict. These are but generally described in his petition. He then avers that the absence of a court reporter made it impossible to have the alleged errors reviewed.

Since 'the law of the land' provided that a criminal trial shall be stenographically reported, at any stage

[ 167 Pa. Super. Page 328]

    of the proceeding, whenever the defendant asks for it, -- where he makes no such request he cannot thereafter complain that by reason of his own inaction the case was not reported.

But stenographic reporting of the trial would merely have enabled his lawyer to take exceptions orally. Even without such reporting he could still take any exceptions he desired. Certainly a defendant represented by counsel cannot keep silent at the trial, gamble on the verdict, and when it is found to be adverse, demand a new trial on the ground that he took no exception.

The relator was therefore not deprived of his liberty except in exact accord with 'the law of the land'; nor was his conviction obtained without 'due process of law.'

The order dismissing the petition for a writ of habeas corpus is affirmed.

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