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COMMONWEALTH v. HOWARD (06/16/67)

decided: June 16, 1967.

COMMONWEALTH
v.
HOWARD, APPELLANT



Appeal from judgment of Court of Quarter Sessions of York County, Oct. T., 1958, Nos. 77A, 78A, 79A, and 80A, in case of Commonwealth of Pennsylvania v. Jesse Howard.

COUNSEL

Morrison B. Williams, for appellant.

Earl R. Doll, Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 210 Pa. Super. Page 286]

On November 24, 1958 Jesse Howard, the appellant, appeared before the Quarter Sessions Court of York County, signed a waiver of indictment by the grand jury and a waiver of counsel, entered guilty pleas to four district attorney's bills of indictment charging larceny and receiving stolen goods and was sentenced. At that time he was not represented by counsel.

[ 210 Pa. Super. Page 287]

On November 29, 1965 his petition for a writ of habeas corpus was granted by the Court of Common Pleas on the ground he had not intelligently and understandingly waived his constitutional right to counsel when he plead guilty in 1958. Following the grant of the writ, the court directed that new indictments covering the 1958 charges be presented to the grand jury. Appellant was indicted on December 16, 1965 and in January, 1966, after trial, he was found guilty on all four indictments and sentenced. At the 1966 trial appellant moved to quash the 1965 indictments on the ground that they were barred by the statute of limitations and later asked for a new trial on the same ground. The court below refused to quash the indictments and denied appellant's motion for a new trial.

In Commonwealth v. Phillips, 208 Pa. Superior Ct. 121, 220 A.2d 345 (1966), aff'd, 424 Pa. 641, 226 A.2d 863 (1967), we held that waiver of indictment by a grand jury is not a critical stage in criminal proceedings requiring the assistance of counsel and that the right to have a bill presented to the grand jury, a constitutional right in Pennsylvania, can be waived without counsel so long as the waiver is knowingly and intelligently made. In the Phillips case there were sufficient facts on the record to support a finding that the person accused had knowingly and intelligently waived the indictment. In this case no effort has been made, so far as the record discloses, to show an intelligent and understanding waiver of indictment by the appellant in 1958. Since the mere signing of statements on the back of the district attorney's bills does not justify us in finding that the appellant had waived his constitutional right knowingly and intelligently,*fn1 and since the lower court chose to direct the finding of new indictments,

[ 210 Pa. Super. Page 288]

    we must assume that the appellant did not intelligently and knowingly waive his right to indictment by a grand jury.

We must now decide what effect a district attorney's bill presented to court after a waiver of indictment, not knowingly and intelligently made, has on the running of the statute of limitations. We hold that it tolls the statute.

I.

The statute of limitations on which the appellant relies is the Act of March 31, 1860, P. L. 427, § 77, as amended by the Act of April 6, 1939, P. L. 17, § 1, 19 P.S. § 211. It reads, inter alia, as follows: "All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter excepted, shall be brought or exhibited within the time and limitation hereafter expressed, and not after; . . . all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed. . . ." This statute has been construed to mean that the limitation is to be computed from the time a true bill is found by the grand jury. Commonwealth v. Haas, 57 Pa. 443 (1868). The crimes of larceny and receiving stolen goods with which the appellant was charged were felonies allegedly ...


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