Stewart v. Commonwealth ( 1887 )

Opinion,

Mr. Justice Williams :

An examination of the record discloses but one reason for interfering with the verdict and sentence in this case. This is brought-to our attention by the fifth assignment of error. It' appears that, at the conclusion of the evidence, the defendant asked the court to permit him to be beard by his counsel before tbe jury. Tbis tbe court refused to do, giving as tbe reason tbat “ there is nothing in tbe judgment of tbe court to justify wasting time argumg.” Tbe case was then left to tbe jury under tbe charge of. the court. To tbis action of tbe court an exception was taken at tbe time and a bill duly sealed. Wo have therefore to determine whether tbe defendant’s right to be beard by bis counsel before tbe jury is subject to tbe discretionary power of tbe judge presiding at tbe trial.

Tbe right to be so heard, is expressly provided for in tbe constitution of tbe commonwealth. Tbe “declaration of rights” asserts in tbe plainest terms tbat “In all criminal prosecutions tbe accused bath tbe right to be heard by himself and bis counsel.” Tbe constitution is tbe law paramount which binds all departments of tbe government.

Tbe legislatiue cannot take away what tbe constitution guarantees, nor can the courts. On tbe contrary, it is the duty of tbe judges to obey the constitution and to enforce observance of its provisions on others. Courts may regulate tbe manner and time for the exercise of tbe right to be beard by counsel, and may limit the number and tbe length of tbe addresses to be made to the jury by general rule or by an order made in the particular case. These subjects are within the exercise of judicial discretion, and merely regulate the exercise of tbe constitutional right.

To deny tbe right altogether is beyond the power of tbe courts. In Cathcart v. Commonwealth, 37 Pa. 108, a similar question was raised, and, in tbe opinion of tbe court, Justice Strong said: “ Tbe right to be beard by himself and his counsel is doubtless a constitutional right, and if it bad been denied it would have been error.” In tbe present case tbe right was denied. Tbe fact tbat it was demanded by the accused and tbat the court refused to allow its exercise appear clearly upon tbe record, and we have no alternative.

For tbis error a cause, which seems to have been fairly tried in other respects, must go back for re-trial.

Judgment reversed and venire facias de novo awarded.