Commonwealth v. Robinson , 317 Pa. 321 ( 1934 )

I dissent on two grounds: first, I cannot concur in the unwarranted assumption that the jury was not sworn; second, it is unimportant to the decision of this appeal whether the jury was sworn or not.

First. The majority opinion assumes that the jury was not sworn as to appellant, and then makes that assumption the ground for reversing the judgment. There is no affirmative evidence that the jury was not sworn; the fact appears to be assumed solely because the docket entries, certified from the docket kept in the main office of the clerk of the court of quarter sessions, are silent on the subject. In the absence of proof to the contrary, and there is none, the maxim omnia præsumuntur esse rite et solemnitur acta would be controlling: Springbrook Road, 64 Pa. 451, 453; Spear's Road, 4 Binn. 174; Schuylkill Falls' Road, 2 Binn. 250; cf. Girard Life Ins. Co. v. Farmers', etc., Bank, 57 Pa. 388, 393; In re Inter-County Bridge, 82 Pa. Super. 59, 62.

The assumption is unwarranted for several other reasons. (a) No counsel in the case (and counsel should know the fact) has said that the jury was not sworn. The point was taken by the majority of this court of its own accord. At the trial, Mr. Walter Biddle Saul represented the appellant. It seems certain that, if the jury had not been sworn, Mr. Saul would have raised the point in the trial court, and, failing there, it would have been raised in the Superior Court. It was not raised in either. The brief filed in the Superior Court shows that Mr. Charles E. Fox appeared for appellant, and the report of the case (112 Pa. Super. 215, 170 A. 401) shows that he made the oral argument. He had been district attorney of Philadelphia County and was thoroughly familiar, not only with the criminal law and procedure, but with what may be termed the clerical work of the court room to which reference shall be made in a moment under paragraph (b). Neither Mr. Fox nor Mr. Saul suggested, in their brief in the Superior Court, that the jury had not been sworn or that appellant had not had a constitutional trial. The principal contention there was that the learned trial judge should not have found appellant guilty on the demurrer.

After the conviction was affirmed in the Superior Court, an application was presented here for the allowance of an appeal to this court. In paragraph 2 of the petition, appellant says "He pleaded 'Not Guilty' at the time of the trial, February 24, 1933, . . ." As I understand his petition, he urged that there was some misunderstanding on the part of his counsel and the trial judge as to the use to be made of, or the interpretation to be placed on, the statement of facts and other evidence, as a result of which, he contended, he had not had a fair trial, which misunderstanding, the petition alleged, resulted in "a miscarriage of justice and a denial of your petitioner's constitutional right to a fair trial." He also suggested for consideration the effect of filing the "agreed statement of facts."

Nowhere in the petition is it suggested that the jury was not sworn. An appeal was allowed, and consideration was limited to the constitutional question suggested in the petition, the order for the appeal specifying that it was allowed "on the sole question of whether the defendant's constitutional right to an impartial trial by jury was denied by the action of the trial judge in accepting the agreed statement of fact subject to any contradictions contained in the evidence produced in the trial of the codefendant, and in entering judgment and pronouncing sentence upon his conclusions drawn from the statement and such other testimony." The statement of questions involved, in the brief filed in this court, refers to the use of the agreed statement of facts and to questions suggested by it; but there is not a word to the effect that the jury was not sworn as to appellant. In this court, appellant's case was presented by counsel who had not appeared for him in either of the other courts, which may account for the following statement, on page 13 of his brief: "At this point, attention is directed to the fact that there was no plea of 'Not Guilty' entered by the appellant." He was doubtless misled by the certified docket which contains no entry on the subject. Perhaps, in consequence of that statement, though denied in the brief of the district attorney, the majority was also misled, for its opinion, as I understand it, treats the record as if no plea had been entered by appellant. How can such assumption be justified in the face of the fact that appellant himself, over his own signature and oath, states that he pleaded "Not Guilty" in a petition to this court presented by his counsel, one of whom acted for him and was familiar with what occurred at the trial?

(b) With such clear record proof of the fallacy of making assumptions from the silence of mere transcripts, I refer now to the steps taken in the quarter sessions from the act of swearing the jury to the act of certifying the docket entries for purposes of appeal. Of these matters we take judicial notice. The Court of Quarter Sessions in Philadelphia County conducts trials at the same time in a number of different court rooms, each of which has a staff of employees or clerks. The clerk of the court of quarter sessions is a public officer who is represented in each court room by subordinates. In the main office of the clerk, the docket is kept, from which the entries are certified on appeal. How do entries of what transpired in the court room get into the docket?

First. In every court room there is a crier whose duty it is to swear the jury, and, having done so, to deliver to a clerk the names of the jurors sworn. Second. This clerk keeps temporary minutes, on which he records the names of the jurors so sworn. Third. From those temporary minutes and from the indictment, another clerk enters the proceedings in the minute book of the court room. Fourth. From the same records the docket in the main office of the clerk of the court of quarter sessions is prepared by another clerk. Fifth. From that docket the entries are copied and certified by the same or some other clerk for purposes of appeal. It is obvious that any one or more of these persons may omit to make, or to copy, a minute of an important act, though it actually took place. The error of assuming (as the majority opinion does) the infallibility of these clerks is exposed by the fact that one of them omitted to note that appellant pleaded, though he and his counsel, who were present and interested, assert that he did. Where such omission in the certified entries appears from our own records, no assumption against the Commonwealth can possibly be made: cf. In re Inter-County Bridge, supra; Girard Life Ins. Co. v. Farmers', etc., Bank, supra. The adoption of a rule supporting such assumption would doubtless invite efforts by unscrupulous persons to procure the omission from minutes of essential acts, with, probably, disastrous results for those charged with the prosecution of crime, a reason sufficient to prevent, adopting the rule.

Second. It is unimportant whether the jury was sworn or not. The demurrer to evidence in a criminal prosecution is not in conflict with constitutional provision that "Trial by jury shall be as heretofore." The practice of demurring to evidence is older than the present Constitution, and in 1843, in Com. v. Parr, 5 W. S. 345, was recognized as not inconsistent with trial by jury; in many recent cases the practice has been sustained. The question is not whether the members of this court at the trial would have reached the conclusion adopted by the learned trial judge and by the Superior Court; that question is not only not before us, but it was expressly excluded from our consideration by restricting the scope of the appeal to the constitutional question stated above; the question I am considering is whether this appellant has been deprived of a constitutional right, even supposing that the jury was not sworn.

It is fundamental that a retrial will not be ordered for harmless error. It is part of the procedure of demurring to evidence, that (if allowed by the court and joined in by the Commonwealth) the jury must be discharged as to the party demurring: Com. v. Parr, supra; Hutchinson et al. v. Com.,82 Pa. 472, 479; see also Com. v. Sonis et al., 81 Pa. Super. 205, 211; Com. v. Ernesto et al.,93 Pa. Super. 339, 341; Com. v. Spohn, 95 Pa. Super. 261,262; Com. v. Brown, 96 Pa. Super. 13, 14; Com. v. Smith et al., 97 Pa. Super. 157, 160. Accordingly, and the record so states, the jury was discharged as to appellant. It was discharged, because he demurred; he initiated, as he had the right to do, the order of procedure, so that, whether the jury was sworn or not, is wholly immaterial, for the jury had nothing, and could have nothing, to do with his conviction. His demurrer took the jury out: Com. v. Kolsky, 100 Pa. Super. 596; Com. v. Williams, 71 Pa. Super. 311, 313. The determination to demur is not a waiver of jury trial, in the sense in which waiver was considered in Com. v. Hall, 291 Pa. 341,140 A. 626, cited by the majority. That case did not touch, and certainly was not intended to abolish, the practice of demurring to evidence. It did not restrict or abolish what had been accepted procedure in criminal trials, as appears in Com. v. Shoemaker, 240 Pa. 255, 260, 87 A. 684, and Com. v. Deni, 317 Pa. 289, in which it is said that, even in a trial for first degree murder, a defendant may have a juror withdrawn without prejudicing "the Commonwealth's right to try the prisoner again on the indictment." The Commonwealth may appeal from a decision for the defendant on the demurrer: Com. v. Parr, supra; Com. v. Kolsky, supra. In Garland v. Washington,232 U.S. 642, it appeared that the Supreme Court of the State of Washington had held that the failure to enter a plea in a prosecution for larceny "had deprived the accused of no substantial right, and that having failed to make objection upon that ground before trial it was waived and could not be subsequently taken." That position was affirmed by the Supreme Court of the United States. The rule was stated to be as follows (at page 645): "Due process of law, this court has held, does not require the State to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution: Rogers v. Peck, 199 U.S. 425, 435, and previous cases in this court there cited. Tried by this test it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right or in any wise changed the course of trial to his disadvantage. All requirements of due process of law in criminal trials in a state, as laid down in the repeated decisions of this court, were fully met by the proceedings had against the accused in the trial court. The objection was merely a formal one, was not included in the general language in which the objection to the introduction of evidence was interposed before the trial, and was evidently reserved with a view to the use which is now made of it, in an attempt to gain a new trial for want of compliance with what in this case could have been no more than a mere formality." The court was asked to hold that the accused had not had a constitutional trial, on the authority of its earlier decision in Crain v. U.S., 162 U.S. 625, which supported the view of appellant. The court dealt with the contention and rejected it as follows (at page 646): "Holding this view, notwithstanding our reluctance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Crain Case is no longer required in the prosecution of offenses under present systems of law, and so far as that case is not in accord with the views herein expressed it is necessarily overruled." The same rule has been applied in this State: Com. v. Saler, 84 Pa. Super. 281, at page 287. Between trying for a felony an accused who has not been given an opportunity to plead, as in the Garland Case, and trying for a misdemeanor before a jury that has not been sworn, where the accused, by demurring, takes the jury out of the consideration of his case, there is no difference whatever in the quality of the facts constituting alleged failure of due process. It is certainly true that, in this Commonwealth, at this time, it is far more important for the protection of the public generally, as epitomized in the syllabus in the Garland Case, that "Technical objections, originating in the early period of English history, when the accused was entitled to but few rights, are passing away, and should not be allowed as to unimportant formalities where the rights of the accused have not been prejudiced." Hereafter, by the decision of the majority, in criminal appeals, an appellant can successfully complain of harmless error. Against this relaxation of rules in the trial of criminal cases, see Com. v. Dague, 302 Pa. 13, 16,152 A. 839; Com. v. Flood, 302 Pa. 190, 195, 153 A. 152; Com. v. Simpson, 310 Pa. 380, 383.⁶

Third. The opinion of the majority contains a number of statements in which I cannot concur. Among them are the following: (1) It is said that "The agreed statement of facts was not presented to the court or jury." The record shows, as the opinion also states, that, at the close of the case for the Commonwealth, the statement was offered in evidence and presented to the court. How else could the court have considered it? As the jury was necessarily discharged from considering the evidence as to appellant (see Com. v. Parr, supra, and Hutchinson v. Com., supra), there was no occasion to present it to the jury. (2) It is said: "During the Robinson trial, Pent's counsel took no part in the examination or cross-examination of witnesses." As appears from what has already been stated, Robinson and Pent were on trial; it was not Robinson's trial alone; and the fact that "Pent's counsel took no part in the examination or cross-examination of witnesses" loses all force when taken with the statement of Pent's counsel that he would examine, "if there is any contradiction." The record shows the following: "The Court: You are here on trial, now. All I will do will be this. I am perfectly satisfied to have you two gentlemen, after the conclusion of the case, present any agreement as to facts that you shall have to offer. If you want to do that now, you may; but if you do it now, you must present it subject to any corrections or modifications that may be offered in the presentation of the Commonwealth's evidence. Mr. Saul: I am satisfied to do that, sir. The Court: Or also any additions. Mr. Saul: I am satisfied to do that, sir. The Court: All right; but we will not read the statement of facts to the jury at this time. Mr. Saul: If we demur to the evidence, I understand it then becomes a question for your Honor. The Court: Well, we won't read it to the jury at this time. Mr. Barr: That was not my intention. The Court: You are on trial now, Mr. Saul. It is not a mere formality. Mr. Saul: I understand. I understand the statement of facts has been filed subject to any correction that may develop. [The statement was not in fact put in until the close of the Commonwealth's case.] The Court: You mightwant to ask some questions in view of what I have said. Mr. Saul: If there is any contradiction, yes." (3) It is said, "The trial judge, in finding defendant guilty, took into consideration the facts developed in the Robinson Case, but refused to consider the agreed statement of facts." I think that is not in accord with the trial judge's statement, as follows: "The Court: The so-called agreement of facts or statement filed as supplementary and additional evidence in this case is irregular in form and substance; it is in large part merely argumentative, and in important particulars abounds in inferences and conclusions which are not justified by the uncontradicted facts in evidence. Of course, by such impertinent and nonevidential matters the Court is not and cannot be bound in deciding the demurrer before it. Considering all the evidence presented at the trial, both by the witnesses as well as that which is properly contained in the statement filed, and applying the rules governing the decision of demurrers under which conflicting evidence is resolved in favor of the Commonwealth, the Court is of opinion that the demurrer should be, and it accordingly is, overruled and judgment entered for the Commonwealth. Mr. Thompson: If your Honor please, I am in Mr. Walter Biddle Saul's office. Mr. Saul cannot be here today because he is at home ill. Regarding the Howard F. Pent and Robert E. Pent Case, we would like to keep the record as clear as we can, and we would ask your Honor for an exception to your Honor's rulings as to each indictment; also an exception to your Honor's disregarding the agreed statement of facts. . . . The Court: I won't give you that, because I did not disregard the statement of facts. I will give you an exception to what I did." (4) It is also said: "In this case there was no participation by appellant in the selection of a jury to try the case; there was no opening to the jury outlining a case, no cross-examination or examination of witnesses for and on behalf of the Commonwealth or the defense." As appears from the quotation made above, appellant's counsel said he might cross-examine, "if there is any contradiction." He was not deprived of any right. Nor can I understand that, if counsel choose not to participate "in the selection of a jury," but, on the other hand, to accept a jury already in the box, or to accept the jurors satisfactory to a party to be tried at the same time, such person has been deprived of any right; he was not obliged by anything appearing in the record to accept the jurors without examination, if he wished to examine. The record does not show that "there was no opening to the jury outlining a case," but, if appellant's counsel chose not to outline the case, he elected to do so for reasons by him deemed sufficient; he was not required by the court to remain silent, if, in fact, he did so. As I understand the presentation of the evidence, he had the right to cross-examine, as he himself proposed.

We have dealt at length with the questions raised in the majority opinion, lest it be supposed, from our failure to answer them, that, in a proper case, they should be applied. In point of fact, however, they are not before us for consideration, since no assignment of error in any way refers to an alleged failure to plead or to swear the jury, if it was not sworn. The record before us does not disclose whether or not the effect of the alleged failure to plead was referred to in the assignments of error in the Superior Court. If it was, the failure to refer to it in the assignments in this court is an abandonment of that contention. If it was not, it cannot be raised for the first time in this court.

Mr. Justice SIMPSON concurred in this opinion.

⁶ In this case Mr. Justice SCHAFFER says: "The criminal law must move forward to meet the new conditions which confront organized society if its law-abiding members are to be protected in their personal and property rights. Whatever the rule may have been in past decades, we think now when there is such wide latitude allowed those convicted of crime to appeal and have their convictions reviewed, there should be a liberalizing of the attitude towards the Commonwealth, where the defendant has been convicted, and the question ruled against the Commonwealth as here, is purely one of law."