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decided: May 23, 1973.


Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1970, No. 8889, in case of Commonwealth of Pennsylvania v. James R. Miller.


Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los and J. Kent Culley, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.

No oral argument was made nor brief submitted for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this concurring opinion. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.

Author: Jones

[ 452 Pa. Page 37]

On September 8, 1970, appellee returned home from work in an intoxicated state. After arguing with his wife, the prosecutrix, he loaded his gun and threatened to take his own life. When prosecutrix went to the telephone to obtain help, appellee brandished his gun and assured prosecutrix that if she dialed the telephone, it would be her last telephone conversation. Appellee thereafter left the home of his wife and children, but returned on several occasions in the same intoxicated and threatening condition.

On November 10, 1970, after a hearing before a Justice of the Peace, appellee was ordered to enter an appearance bond and was held for the Allegheny County Common Pleas Court, Criminal Division. A hearing commenced on December 16, 1970, on appellee's charged violation of the Surety of Peace Statute.*fn1 On April 20, 1971, appellee was ordered by the court to pay prosecution costs, to enter a bond with surety in the sum of $1,000 and to keep the peace for one year. On May 6, 1971, the Court of Common Pleas dismissed the order of April 20, 1971, requiring appellee to post bond.

The question presented by this appeal is whether the Surety of Peace Act of March 31, 1860, P. L. 427, as amended by the Acts of March 18, 1909, and April 27, 1909, P. L. 42 and P.L. 260, 19 P.S. ยง 23-28, is violative of Article I, Sections 6 and 9, of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the United States Constitution as a deprivation of appellee's right to a trial by jury and the denial of due process and equal protection of the law. The order and opinion of the court below answered each inquiry in the affirmative. Appeal was taken by the Commonwealth to this Court.

[ 452 Pa. Page 38]

Right to Trial by Jury

The elements of the statutory offense of surety of the peace are (1) the making of a threat (2) to some person or his property (3) with the result that the threatened person is put in fear or danger of being injured.*fn2

The Act provides preventive justice and requires persons of whom there is probable cause to suspect future violent behavior to give full assurance to the public against the anticipated offenses. Offenders must post a surety bond and pay costs and, in default of payment, the justice may commit the person defaulting to the county jail until such time as costs are paid.*fn3

The question whether the Act is violative of appellee's right to trial by jury and purported right to prosecution by indictment has never been decided by this Court. The procedure here employed, however, has been upheld by the Superior Court. Commonwealth v. Taub, 187 Pa. Superior Ct. 440, 144 A.2d 628 (1958); Commonwealth v. Cushard, 184 Pa. Superior Ct. 193, 132 A.2d 366 (1957). The Superior Court in Commonwealth v. Taub reasoned that the offense of surety of the peace has never been an indictable offense since the purpose of the statutory enactment is the prevention of the commission of a serious threatened crime. As crime prevention is the gravamen of these provisions,

[ 452 Pa. Page 39]

    rather than prosecution of a crime already committed, time is of the essence in processing the action. Prosecution via time-consuming indictment is neither required by Article I, Section 9 of the Pennsylvania Constitution*fn4 nor practicable in view of the crime prevention posture of the Act.

Article I, Section 6 of the Commonwealth's Constitution provides: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." Similarly, the Sixth Amendment to the United States Constitution insures that "[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury. . . ." Application of the surety of the peace procedure evokes no violation of appellee's right to trial by jury. Appellee was not charged with an offense triable by jury at common law. The offense was created by statute and the procedure thus prescribed. Commonwealth v. Taub, supra. We hold that Commonwealth v. Taub was properly decided in that the right to prosecution by indictment and trial by jury do not invalidate this crime-preventive process.

Due Process and Equal Protection

The court below determined that the surety of peace bond violated the due process clause of the Fourteenth Amendment since: (1) the Commonwealth is not called upon to establish proof beyond a reasonable doubt; (2) the burden of proof (of ...

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