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COMMONWEALTH v. BRANCH (12/16/65)

decided: December 16, 1965.

COMMONWEALTH
v.
BRANCH, APPELLANT



Appeal from order of Court of Common Pleas of Dauphin County, Jan. T., 1965, No. 634, in case of Commonwealth of Pennsylvania v. Stanley E. Branch.

COUNSEL

Paul E. Waters, for appellant.

Frank P. Lawley, Jr., Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J. Wright, J., would affirm the order below.

Author: Montgomery

[ 207 Pa. Super. Page 139]

David L. Cochlin, Captain of the Capitol Police, filed a complaint charging that appellant-defendant "refused to disperse and leave the main Capitol Building in the city of Harrisburg, after I gave each of them notice to do so at approximately 6:45 P.M. and after informing each of them that as Captain of the Capitol Police I am in charge of security for the building, all of which were against the peace and dignity of the Commonwealth of Pennsylvania and contrary to the Acts of Assembly in such cases made and provided", and he was arrested on a warrant describing the offense as trespassing. After a hearing, the defendant was adjudged guilty and sentence suspended by Alderman Joseph Demma of that city. The Court of Common Pleas allowed a writ of certiorari and after consideration of the alderman's return of a transcript of his record affirmed the judgment of the alderman. This appeal followed.

[ 207 Pa. Super. Page 140]

Two questions were raised in this appeal: (1) does the complaint charge a criminal offense and (2) if a criminal offense is charged, did the alderman have summary jurisdiction. A preliminary question is also raised by appellee which we shall consider first.

The preliminary question is predicated on the fact that no final judgment was entered, sentence being suspended. Appellee contends this fact precluded a review of the alderman's record by certiorari. We do not agree. Although there was no final judgment, there was a definite disposition of the charge when the alderman found the appellant guilty. One of the purposes of certiorari is to correct irregularities in the record and therefore certiorari will not be defeated merely because the record does not show the entry of a judgment. It is the cause, not merely the judgment, that is removed by certiorari. Hence, even if the justice failed to make a formal entry of judgment, there may be a reversal if the record shows he exceeded his jurisdiction or failed to proceed according to law. If the justice has finally disposed of the matter, but declines to enter judgment, certiorari will lie. Sadler, Criminal Procedure in Pennsylvania, § 844 (2d ed. 1937); Bolivar Borough v. Coulter, 10 Dist. 171 (C.P. Westmoreland Co. 1901); Ferriday v. Reinhold, 8 Dist. 637 (C.P. Northampton Co. 1889); 14 Am. Jur. 2d, Certiorari, § 13.

Returning to a consideration of the first main question, the Act of April 9, 1856, P. L. 293, § 1, 18 P.S. § 3354, provided, inter alia, that, ". . . any persons who shall gather in noisy or boisterous crowds, either on the capitol grounds or in the capitol, or refuse to disperse and leave on notice of the superintendent and watchmen, and all persons of either sex, known to be mischievous or immoral, who may be ordered to leave the public buildings or grounds, and who shall refuse so to do, shall each and every of them, on conviction

[ 207 Pa. Super. Page 141]

    before any magistrate . . . be subject to the penalty or penalties imposed by the act to which this is a supplement . . ." However, this act was repealed by Section 1201 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 5201, and this fact was recognized by the lower court which stated, "An examination of the record indicates that the offense charged was not a violation of the Act of 1856, supra, but a violation of the common law, of which the alderman had jurisdiction. See Act of June 24, 1939, P. L. 872, § 1101, 18 P.S. 5101 and Historical Note following the Act of May 1, 1861, P. L. 682, § 1, 42 P.S. 392 . . . This offense, in our opinion, was against the peace and dignity of the Commonwealth and as such, was a violation of the common law."

Section 1101 of the 1939 Code, 18 P.S. § 5101, preserves offenses theretofore punishable either by statute or common law if not specifically provided for in that act. Since the Act of 1856, P. L. 293, was specifically repealed it cannot be successfully contended that it was the intention of the Legislature to preserve that offense under this section. Therefore, if it is still an offense, recognition of it must be found in the common law, as stated by the lower court. However, we fail to find in Section 1 of the Act of 1861, P. L. 682, or in the Historical Note following it in 42 P.S. § 392, any statement to the effect that at common law justices had authority to conduct summary proceedings in cases of this nature. Summary proceedings are exceptions to the ...


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