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COMMONWEALTH v. MONCAK (01/04/54)

January 4, 1954

COMMONWEALTH
v.
MONCAK, APPELLANT



Appeal, No. 64, Jan. T., 1954, from order of Court of Oyer and Terminer of Lackawanna County, May Sessions, 1953, No. 9, in case of Commonwealth of Pennsylvania v. Andrew Moncak. Order affirmed.

COUNSEL

Joseph P. Brennan, with him James E. O'Brien, for appellant.

Thomas J. Foley, Assistant District Attorney, with him Carlon M. O'MALLEY, District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 375 Pa. Page 560]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Under date of November 24, 1953, we affirmed the order of the court below denying appellant's motion for his discharge from imprisonment and stated that an opinion would be filed later. The question concerns the application of the so-called "two-term rule."

Appellant, Andrew Moncak, was arrested on April 11, 1953, upon a warrant issued by an alderman of the City of Scranton charging him with the murder of one Margaret Grunik. Waiving a hearing, he was thereupon

[ 375 Pa. Page 561]

    committed to the Lackawanna County Prison. On April 13 the alderman's transcript was returned to the Clerk of the Court of Oyer and Terminer. On that same day the Grand Jury in and for they County commenced its deliberations and remained in active session until April 16, at which time the court excused it from further service but subject to being re-summoned if occasion should require. A new grand jury was sworn and came into being on September 8. The district attorney presented to this grand jury on September 11 an indictment charging appellant with the crime of murder. A session of the petit jury in the Court of Oyer and Terminer of Lackawanna County commenced on May 4 and continued until May 8. Another such session commenced on October 5 and continued until the conclusion of the trial of another homicide case which was conducted before this venire.

Appellant was not tried at the session of the petit jury in May (he had not been indicted at that time) nor at the session in October. On October 26 he filed a motion for his discharge from imprisonment, invoking the two-term rule. An answer was filed by the district attorney and a reply to the answer by appellant. The court refused to allow the rule and from that refusal the present appeal was taken.

It is stated in the opinion filed by the learned trial judge of the court below that in the Court of Oyer and Terminer of Lackawanna County terms for the current year commenced respectively on February 16, June 8, October 26 and December 15.

The Act of March 31, 1860, P.L. 427, Section 54, closely following the Act of February 18, 1785, 2 Sm. L. 275, Section III, provides that "If any person shall be committed for treason or felony, or other indictable offence, and shall not be indicted and tried ...


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