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COMMONWEALTH v. KILGALLEN (11/08/54)

November 8, 1954

COMMONWEALTH
v.
KILGALLEN, APPELLANT.



Appeals, Nos. 164 to 169, inclusive, March T., 1954, from order of Superior Court, April T., 1954, Nos. 2 to 7, inclusive, affirming orders of Court of Quarter Sessions of Allegheny County, Feb. T., 1951, Nos. 26 to 31, inclusive, in case of Commonwealth of Pennsylvania v. Thomas E. Kilgallen. Order reversed. Same case in Superior Court: 175 Pa. Super.Ct. 52. Proceeding upon petition of defendant and rule to show cause why testimony should not be taken in support of motions to quash indictments. Order entered discharging rule and dismissing petition, before HOBAN, P.J., DAVIS, P.J. and TROUTMAN, P.J., specially sitting, opinion by HOBAN, P.J. Defendant appealed to the Superior Court, which affirmed the order of the court below. Appeal by defendant to Supreme Court allowed.

COUNSEL

Joseph I. Lewis, with him Cooper, Hunter & Lewis, for appellant.

William H. Colvin, Assistant Deputy Attorney General, with him Charles D. Coll, Special Deputy Attorney General and Frank F. Truscott, Attorney Genersl, for appellee.

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

Author: Chidsey

[ 379 Pa. Page 317]

OPINION BY MR. JUSTICE CHIDSEY

This appeal concerns the proper disposition of motions to quash criminal indictments found against the appellant.

On September 13, 1950 the Attorney General of Pennsylvania, duly authorized to act in the matter, petitioned the Court of Quarter Sessions of Allegheny County for an order summoning a special investigatory grand jury to inquire into an alleged widespread system of crime existing among public officials and employes of the City of Pittsburgh. On the same day the court granted the prayer of the petition and the special grand jury was summoned to No. 59 September Sessions, 1950. In his petition the Attorney General specifically and by name charged, among others, the appellant, Thomas E. Kilgallen, President of the City

[ 379 Pa. Page 318]

Council, with the commission of bribery, misdemeanor in office, conspiracy, misdemeanor and fraudulent conversion. In its charge to the investigatory grand jury the court recited these specific charges set forth in the petition and instructed the grand jury to resolve them and if the evidence warranted, to recommend Kilgallen's indictment. Kilgallen was subpoenaed to testify before the special grand jury. Thereupon he personally appeared before the court, asserted that having been specifically accused of crime in the Attorney General's petition and in the charge made by the court to the grand jury, under Article I, Section 9 of the Pennsylvania Constitution*fn1 he "... should not be compelled to appear, testify or produce any evidence or documents in order that I may protect my constitutional rights and privileges and not waive the same.". The court directed him to appear and testify. The investigatory grand jury filed a presentment in which it recommended that Kilgallen be indicted for bribery, misdemeanor in office, fraudulent conversion and conspiracy, and under date of December 14, 1950 the court directed the presentment to be filed and ordered and directed the Attorney General and his assistant to submit indictments to a grand jury as recommended in the presentment. Six indictments against Kilgallen were then prepared accordingly, three of them charging bribery, and endorsed on each was the following order: "And now, to wit, this 2nd day of February, 1951, the within Indictment based upon Presentment at No. 59 September Sessions, 1950, having been presented in Open Court, same is ordered filed and Charles J. Margiotti, Attorney General of the Commonwealth

[ 379 Pa. Page 319]

    of Pennsylvania, is directed to submit the within Bill of Indictment to the Grand Inquest sitting for February, 1951, for its consideration.". The indictments were submitted to the next regular grand jury at the February Sessions, 1951 and true bills were found as to each.

Kilgallen moved to quash the indictments and later petitioned the court for leave to take testimony in support of his motions to quash. In his motions and petitions as amended, he averred that he had testified before the investigatory grand jury at the direction of the court over his claim of immunity; that the record of his testimony so given was made available to the regular grand jury at the February Sessions, 1951 and was considered and used by it in returning the indictments. Rules were granted on appellant's petitions to take the testimony of individual grand jurors and to make to record of the proceedings before the special investigatory grand jury and as well of the indicting grand jury available to the court in support of the motions to quash. Attached to the petitions for the rules as an exhibit was the affidavit of one Paul Normandy, a member of the indicting grand jury, in which the affiant stated that the testimony given by Kilgallen before the special investigatory grand jury was at all times available to the affiant and the other members of the indicting grand jury and that excerpts from the testimony of Kilgallen before the investigatory grand jury were read by members of the Attorney General's staff to the indicting grand jury.

On June 16, 1953 the court filed orders dismissing the petitions to take testimony and the motions to quash. Appeals were taken to the Superior Court which handed down an opinion upholding the action of the court below. Ross, J. filed a dissenting ...


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