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June 28, 1957


Appeals, Nos. 26 and 27, Jan. T., 1958, from judgments of Superior Court, Appeals, Nos. 52 and 53 Oct. T., 1957, affirming judgments of sentence of Court of Quarter Sessions of Schuylkill County, Sept. T., 1953, No. 553, in cases of Commonwealth of Pennsylvania v. Aurelio Cano et al. Judgments affirmed.


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

Thomas D. McBride, Attorney General, with him Leon Ehrlich, Deputy Attorney General, Donald D. Dolbin and Thomas B. Noonan, Special Attorneys, for appellee.

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

[ 389 Pa. Page 642]


Aurelio Cano and Charles Martin, defendants, were convicted by a jury 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. The defendants were arrested on a warrant issued by President Judge PALMER of Schuylkill County on August 1, 1952, as a result of an affidavit filed by an anthracite mine inspector pursuant to Article XVII, § 1 of the statute, 52 PS § 511, charging them with being negligently guilty of thirteen violations of the statute. There was no presentment to or indictment by the grand jury as the procedure in the statute 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.

Following the dismissal of the defendants' motion to dismiss the proceeding as unconstitutional, a jury trial was demanded under the provisions of the statute, Article XVII, § 1, 52 PS § 511, supra. At the trial a demurrer was sustained as to the corporate defendant, Cano & Martin, Inc. The ninth count in the information was dismissed at the request of the Commonwealth. The twelve remaining counts or charges against defendants were submitted to the jury and resulted in their acquittal on seven counts and conviction on five counts. Motions in arrest of judgment and for a new trial were filed. The court en 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 (second, seventh, tenth and twelfth) defendants were sentenced to the maximum penalty of a $500 fine and

[ 389 Pa. Page 643]

    three months in the county prison, 52 PS § 511, or a total fine of $2,000 and one year in the county prison. Defendants appealed to the Superior Court which unanimously upheld the convictions and affirmed the judgments and sentences: Commonwealth v. Cano, 182 Pa. Superior Ct. 524, 128 A.2d 358. We allowed an appeal to this Court, limited, however, to the constitutional question raised by defendants under Article I, Section 10 of the Pennsylvania Constitution.

After due consideration we are in accord with the determination of the question by the Superior Court, and find nothing that can be profitably added to the learned and able discussion of the matter by President Judge RHODES. The determination of the Superior Court is affirmed on the following portion of his opinion:

"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 absence of a bill of indictment by the grand jury renders the statutory procedure invalid. 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,

[ 389 Pa. Page 644179]

Pa. Superior Ct. 150, 153, 155 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 ...

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