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COMMONWEALTH v. CANO (12/28/56)

December 28, 1956

COMMONWEALTH
v.
CANO, APPELLANTS.



Appeals, Nos. 52 and 53, Oct. T., 1957, from judgments of sentence of Court of Quarter Sessions of Schuylkill County, Sept. T., 1953, No. 553, in case of Commonwealth of Pennsylvania v. Aurelio Cano et al. Judgments affirmed.

COUNSEL

John E. Lavelle, with him Alvin E. Maurer, Jr., John J. Curran, and Curran & Lavelle, for appellants.

Donald D. Dolbin, with him Thomas Noonan, Leon Ehrlich, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, and Carr, JJ. (wright, Woodside, and Ervin, JJ. absent).

Author: Rhodes

[ 182 Pa. Super. Page 527]

OPINION BY RHODES, P.J.

Aurelio Cano and Charles Martin, defendants, were convicted and sentenced in the Court of Quarter Sessions of Schuylkill County for violation of the Anthracite Mine Law, Act of June 2, 1891, P.L. 176, as amended, 52 PS § 71 et seq. They have appealed to this Court.

The defendants were arrested on a warrant issued by President Judge PALMER on August 1, 1952, as a result of an affidavit filed by an anthracite mine inspector pursuant to Article XVII, § 1 of the Law, 52 PS § 511, charging them with being negligently guilty of thirteen violations of the Law. There was no presentment to or indictment by the grand jury as the procedure in the Law provided otherwise. The prosecution arose out of an occurrence in defendants' mine on March 27, 1952, in which five miners lost their lives when the mine was flooded from adjacent workings. Defendants were not charged in these proceedings with any crime directly related to the deaths.

Defendants objected to the proceeding on constitutional grounds. Upon dismissal of their objections they demanded a jury trial under the provisions of the Law, 52 PS § 511; in due course they were brought to trial before Judge DALTON. At the trial a demurrer

[ 182 Pa. Super. Page 528]

    was sustained as to the corporate defendant, Cano and Martin, Inc. The ninth count in the information was dismissed at the request of the Commonwealth. The twelve counts or charges remaining against defendants were submitted to the jury. They were acquitted on seven counts and convicted on five counts. Motions in arrest of judgment and for a new trial were filed. The court in banc refused the motion for a new trial as to all counts in the information, but granted the motion in arrest of judgment on the first count. On each of the four counts remaining (2d, 7th, 10th, and 12th) defendants were sentenced to the maximum penalty of a $500 fine and three months in the county prison, 52 PS § 511, or a total fine of $2,000 and one year in the county prison. Appeals having been taken to this Court, a supersedeas was granted by the court below over the objection of the trial judge who was of the opinion that the records of these defendants indicated that a supersedeas was unwarranted.

Defendants raise a number of questions on appeal. They relate to the constitutionality of the procedure, the refusal of their motion to poll the jury, the charge of the trial judge, the sufficiency of the evidence, and the rulings of the trial judge on the admissibility of certain evidence.

Defendants contend that the procedure which was followed - the filing of an affidavit charging them with violations of the Anthracite Mine Law, and the issuance of a warrant by the judge of the Court of Quarter Sessions of Schuylkill County, in accordance with Article XVII, § 1, of the Law, 52 PS § 511 - violates Article I, § 10 of the Constitution of this Commonwealth, PS Const. Art. I, § 10, which provides: "No person shall, for any indictable offense, be proceeded against criminally by information, ..." It is contended that the

[ 182 Pa. Super. Page 529]

    absence of a bill of indictment by the grand jury renders the statutory procedure invalid.*fn1 The procedure by information in the sense that it is used in the Pennsylvania Constitution refers exclusively to practices formerly used in England whereby, upon information in the King's Court by some person, the accused was put on trial without further inquiry or investigation. Com. ex rel. Stanton v. Francies, 250 Pa. 496, 500, 501, 95 A. 527; Com. ex rel. Wheeler v. Francies, 58 Pa. Superior Ct. 266, 267; Com. ex rel. Scasserra v. Maroney, 179 Pa. Superior Ct. 150, 153, 115 A.2d 912. The absence of an intervening indictment by the grand jury would render this procedure unconstitutional if the offenses for which these defendants were tried are "indictable offenses" within the meaning of the Constitution. Com. v. Wadley, 169 Pa. Superior Ct. 490, 493, 83 A.2d 417. The Legislature cannot abolish the grand jury or remove this method of criminal procedure for "indictable offenses." Com. v. Liebowitz, 143 Pa. Superior Ct. 75, 80, 17 A.2d 719; Dauphin County Grand Jury Investigation Proceedings (No. 2), 332 Pa. 342, 353, 354, 357, 2 A.2d 802. See, also, Hartranft's Appeal, 85 Pa. 433, 453, where, in a dissenting opinion, Chief Justice AGNEW stated that the grand jury is "one of the boasted bulwarks of English liberty handed down to us, and protected by the Declaration of Rights."

[ 182 Pa. Super. Page 530]

At common law the method of proceeding by information was not offensive generally, and an indictment by a grand jury was required only in cases involving capital crimes and felonies. "By the law of England, informations by the Attorney-General, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands, or goods, or both. 4 Bl.Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself." Ex parte Wilson, 114 U.S. 417, 423, 5 S.Ct. 935, 29 L.Ed. 89, 91. See 42 C.J.S., Indictments and Informations, § 9, p. 837. It seems that, when this common law safeguard was recognized in the United States, it apparently assumed a greater area or protection. See 42 C.J.S., Indictments and Informations, § 9(b), p. 838. The Pennsylvania Constitution and the constitutions of a number of states provide that proceedings by information are prohibited when the offense is an "indictable" offense. The Fifth Amendment to the Constitution of the United States provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ..." Although the language used in the Constitution of the United States and in the constitutions of various states, including Pennsylvania, could be interpreted as limiting their application to capital crimes and felonies as at common law they have not been so restricted. These provisions have been given a more extensive application, and the test generally applied in determining whether an indictment is necessary relates to the extent of the punishment which may be imposed. It has been held in Kentucky,

[ 182 Pa. Super. Page 531]

    under a constitutional provision virtually the same as in Pennsylvania, that the term "indictable offense" refers to common law and statutory offenses, the punishments for which are "infamous," such as death or imprisonment in a penitentiary as distinguished from imprisonment in a county jail. Perry v. Bingham, 265 Ky. 133, 95 S.W.2d 1099, 1100, 1101; Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632, 639, 640. This is similar to the test under the Federal Constitution which is whether the accused is made subject to punishment by imprisonment in a penitentiary or at hard labor. See Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132; Mackin v. United States, 117 U.S. 348, 350, 351, 6 S.Ct. 777, 29 L.Ed. 909, 910, 911; Ex parte Wilson, supra, 114 U.S. 417, 423, 5 S.Ct. 935, 29 L.Ed. 89, 91. A statutory crime which is punishable by imprisonment at hard labor or by a fine is considered infamous because imprisonment may be imposed. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700. It will be observed that the controlling consideration under the federal rule is imprisonment in a penitentiary or at hard labor.

Our decisions indicate that the provision of Article I, § 10, of the Pennsylvania Constitution was not intended to be limited to capital offenses and felonies, but that it applies also to the more serious indictable common law misdemeanors and statutory misdemeanors which the Legislature intends should be indictable. Mansfield's Case, 22 Pa. Superior Ct. 224, 234; Mountain v. Com., 68 Pa. Superior Ct. 100, 102; Allen v. Com., 77 Pa. Superior Ct. 244, 246, 247; Com. ex rel. City of Pittsburgh v. Heiman, 127 Pa. Superior Ct. 1, 9, 10, 190 A. 479; Com. ex rel. Marsh v. Lindsey, 130 Pa. Superior Ct. 448, 450, 451, 198 A. 512.

[ 182 Pa. Super. Page 532]

Defendants argue that the offenses charged under the Anthracite Mine Law were offenses which could have been punished at common law under the rule of Com. v. McHale, 97 Pa. 397, 408. In the latter case the Supreme Court said that the test for determining which offenses are indictable in Pennsylvania as common law offenses is not whether the precise definition of the crime can be found in the English texts or reported cases, ut rather whether the offenses presently charged might have been punished at common law. It is there stated (page 408 of 97 Pa.): "What is a common law offence? The highest authority upon this point is Blackstone. In chap. 13, of vol. 4, of Sharswood's edition, it is thus defined: 'The last species of offences which especially affect the Commonwealth are those against the public [peace] ... or economy. By the public [peace] ... and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and infoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series. These amount some of them to felony, and others to misdemeanors only.'" The Supreme Court ...


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