Appeal, No. 348, Jan. T., 1962, from order of Superior Court, Oct. T., 1961, No. 274, affirming the judgment of conviction and sentence of the Municipal Court of Philadelphia County, Sept. T., 1959, No. 4081, in case of Commonwealth ex rel. Ester Squires Smith v. Charles L. Patterson. Order reversed.
William J. Toy, for appellant.
Burton Satzberg, Assistant District Attorney, with him Frank E. Gilbert and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE EAGEN
The defendant was convicted and sentenced for wilful neglect to support a child born out of lawful wedlock, under the provisions of the Act of June 24, 1939, P.L. 872, § 732, 18 P.S. § 4732. The Superior Court affirmed the judgment: Commonwealth ex rel. Smith v. Patterson, 197 Pa. Superior Ct. 538, 179 A.2d 233 (1962). We granted allocatur.
The child was born May 19, 1951.The mother signed an affidavit of complaint on August 1, 1951. At that time, the defendant was in the armed forces. He was discharged December 31, 1952. Shortly thereafter, he visited the prosecutrix, but nothing was said about the pending proceeding. At all times thereafter, he was within the jurisdiction and his whereabouts known to the prosecutrix. No action was taken on the complaint until the defendant was summoned to a preliminary hearing on September 19, 1959. This was the first inkling or notice given the defendant that such a prosecution was pending.
Subsequently, the defendant waived an indictment by a grand jury and entered a plea of not guilty. A trial ensued on April 23, 1961. The verdict, guilty. Motion in arrest of judgment was denied.
Article 1. Section 9, of the Pennsylvania Constitution provides that, "In all criminal prosecutions the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage ..." This is a very precious right and a basic concept of our system of justice. A delay for a long lapse of time may, under certain circumstances, render a fair and impartial trial impossible. See U.S. v. Chase, 135 F.Supp. 230 (E.D. Ill. 1955). It has been correctly held that this constitutional
guarantee in the Pennsylvania Constitution does not, in itself, warrant anything beyond a discharge from imprisonment where indictment or trial is delayed: Commonwealth v. Mitchell, 153 Pa. Superior Ct. 582, 34 A.2d 905 (1943); aff'd 349 Pa. 559, 37 A.2d 443 (1944); Commonwealth ex rel. Graham v. Myers, 194 Pa. Superior Ct. 561, 168 A.2d 796 (1961).
In this case, however, the defendant was not only denied a trial within a reasonable time without any apparent justifiable reason, but more importantly, he was deprived of any notice of the filing of the complaint and issuance of a warrant for a period of over eight years after the proceedings were instituted. This is not due process under the Constitution of the United States, which requires adequate and timely notice plus an opportunity to properly defend. See, Commonwealth ex rel. Chidsey v. Keystone Mutual Casualty Co., 373 Pa. 105, 95 A.2d 664 (1952); Narehood v. Pearson, 374 Pa. 299, 96 A.2d 895 (1953); Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745 (1950); Alpha Club of West Philadelphia v. Pa. Liquor Control Board, 363 Pa. 53, 68 A.2d 730 (1949); Taylor v. U.S., 238 F.2d 259 ...