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November 12, 1952



Thomas M. Reed, Samuel Dash, Asst. Dist. Attys., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellant.

Raymond Pace Alexander, Wm. J. Woolston, Philadelphia, for appellee.

Herman I. Pollock, voluntary defender, Philadelphia, amicus curiae in the court below.

William Allen Rahill, Julian E. Goldberg, Philadelphia, for American Civil Liberties Union amicus curiae.

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

[ 172 Pa. Super. Page 196]


The majority of the members of the Court, Judge DITHRICH dissenting, agree that the order of the court below should be affirmed on the opinion of Judge Milner.

Order is affirmed.


1 See the excellent note in 88 U. of Pa.L.Rev. 331 (1940) for a careful review of the practice of requiring bonds in the United States and note the careful distinction maintained throughout between surety to keep the peace and demand of a bond for good behavior; the distinction is also maintained for bonds demanded after conviction and those demanded after acquittal.

2 In United States ex rel. Henson v. Mills, E.D.Pa.1937, 21 F.Supp. 616, reported also in 31 Pa.Dist. & Co. 47, 48, a habeas corpus proceeding, Judge Maris reviewed an order, after acquittal, directing entry of bail in the sum of $25,000. to keep the peace and be of good behavior for a period of ten years. The question of due process was not thoroughly considered and was not argued. There was dicta (based on an assumption of propriety) which we may ignore. See also the dicta in Commonwealth v. Andrews, 1905, 211 in Commonwealth v. Andrews, 1905, 211 Pa. 110, 112-113, 60 A. 554.

3 This reference to Sergeant Hawkins we shall consider infra. The reference to 'Comb. 40' is to Rex v. Sir John Knight and is also discussed infra.

4 See Commonwealth v. Duane, 1806, reported in full in footnote (a) in Commonwealth v. Davies, 1804, 1 Bin. 97 and also see Commonwealth v. Keeper of the Prison, 1828, 1 Ashm. 140 discussed infra. More recently see Commonwealth v. McClain, 1936, 84 Pittsb.Leg.J. 171.

5 . This phrase from Magna Charta signifies that 'No free man shall be taken, or imprisoned, * * * except by legal judgment of his peers or the law of the land.'

6 Pursuant to Act of April 7, 1807, P.L. 163, 46 P.S. § 152 note.

7 We shall not here consider the interesting contention that this statute was incorrectly translated from the Norman French: See 27 Eng.Hist.Rev. 227 and see Lansbury v. Riley, (1914) 3 K.B. 229, 231.

('These be the things which our Lord, the King, the Prelates, Lords, and the Commons have ordained in this present parliament holden at Westminster, the Sunday next before the feast of the conversion of St. Paul, to be holden and published openly through the Realm.')

8 In 2 Hale's Pleas to the Crown 136-7 (Sun.Ed.1847) the subject matter is discussed but no additional judicial authority is referred to.

9 . Hawkins actually cites Cro.Jac. 507 but the cases there reported are obviously inappropriate and the reference must be as we have stated to the Evans case, which is cited by Hawkins in a footnote comment.

10 By familiar law this case being by an evenly divided court is not to be considered as binding precedent but adjudicates only the right of the parties in that particular case: Commonwealth ex rel. Vesneski v. Reid, 1919, 265 Pa. 328, 335, 108 A. 829; Griel's Estate, 1895, 171 Pa. 412, 416-417, 33 A. 375; Commonwealth v. Heller, 1942, 147 Pa. Super. 68, 78, 24 A.2d 460; Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L.Ed. 419.

11 See also The King v. Burford, 1 Ventris, 16, 86 Eng.Rep. 12 (21 Car. II, 1670) where defendant was indicted for scandalously stating that the justices did not understand the excise laws. It was held that the indictment should be quashed; that a man could not be indicted for speaking such words. The court then added that 'he might have been bound to his good behavior.' In Collin's v. Man, 1 Lev. 107, 83 Eng.Rep. 321 (15 Car. II, 1664) surety of peace ('bound to his good behavior') was required of defendant for using ill language in Westminster Hall.

12 We need not concern ourselves with the course by which judges of the courts of common pleas have acquired the powers granted to justices of the peace.

13 In the Pennsylvania Report of Legislative Commission to Investigate Administration of Criminal Justice (July, 1938), it was stated, 'A practice has grown up among certain judges in Philadelphia of holding in 'Bonds to keep the Peace' defendants who have been acquitted by juries, and in some cases, persons who have not been charged with any criminal offense. The bonds are often fixed at an exorbitant sum which such persons cannot procure and the effect is to keep men in prison for long periods of time until the judge decides to release them.' The commission also stated, '* * * it is the conclusion of many eminent jurists, lawyers and scholars, that such procedure is clearly unconstitutional and a flagrant and dangerous abuse of judicial power.' It is clear, however, that the Commission did not rely upon any judicial authorities for its assertion and we are now to determine whether that expressed opinion was correct.

14 When it is considered that Justice Tilghman was Chief Justice of the Supreme Court when the Report of the Judges was made as to English Statutes in force in this commonwealth his expressed view that surety for good behavior could be demanded either after conviction as part of the judgment of the court or ' before the trial ' of a 'person charged with an offense' is entitled to careful consideration in determining the extent of the authority conferred by 34 Edward III., c. 1.

15 Compare the Act of May 27, 1919, P.L. 306, 19 P.S. §§ 21, 22, empowering Justices of the Peace, in the exercise of discretion, to impose costs on the defendant, despite acquittal. In Commonwealth ex rel. Heydt v. Bossler, 1919, 29 Pa.Dist.R. 171, this practice was ruled invalid. See also Commonwealth v. Webster, 1924, 23 Luz.Leg.Reg. 359; Commonwealth v. Cooper, 1921, 21 Luz.Leg.Reg. 264; Commonwealth v. Emerick, 1924, 6 Pa.Dist. & Co. 434; Commonwealth v. Reynolds, 1925, 26 Lack.Jur. 133; contra Commonwealth v. Brown, 1922, 1 Pa.Dist. & Co. 609. In the Webster case, supra, President Judge Fuller stated, 'We feel impelled to add that this whole matter of costs under our system of criminal jurisprudence is an instrument of oppressive cruelty which belongs to the Dark Ages, and should not be tolerated in an age which claims to be civilized.'

16 Consider, for example, the manner in which eighteenth century juries informally amended the broad scope of the law's definition of capital offenses by simply refusing to return guilty verdicts in cases in which such penalty offended the conscience of the people. Also, recall the early trials of Peter Zenger and William Penn.


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