Sayres v. Commonwealth , 1879 Pa. LEXIS 47 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court, January 20th 1879.

The Act of 24th March 1877, Pamph. L. 40, entitled, “An Act to prevent delay in the review of capital cases, in the Supreme Court,” provides “that no writ of error or certiorari in capital offences, shall be issued from the Supreme Court to any Court of Oyer and Terminer and General Jail Delivery, to remove-the indictment, record and proceedings, to the Supreme Court for review, after twenty days from sentence, unless specially allowed by the Supreme Court or a judge thereof.” The plaintiff in error ivas convicted of murder of the first degree in the court below, and sentenced in accordance with law on July 13th 1878. This writ of error was not taken out until November 30th 1878. There was no special allowance thereof by this court or by a judge thereof. It is but just to the learned counsel who issued the writ, to say that they were not aware at the time, of the passage of the act above cited. After their attention had been called to it, they applied to Chief Justice Sharswood to allow the writ nunc pro tunc, with whom I united in a denial of the application upon the merits, no point having been made at that time as to the constitutionality of the Act of 1877.

It is plain that the writ was issued in direct violation of the terms of that act. But it is alleged that the act is in conflict with art. 5, sect. 24, of the Constitution, which provides, that “ in all cases of felonious homicide, the accused, after conviction and sentence, may remove the indictment, record, and all proceedings, to the Supreme Court for review ; and in such other criminal cases as may be provided for by law.”

The object of the Act of 1877, is clearly expressed in its title. It was to prevent delay in the review of capital cases in this court. It became apparent soon after the present Constitution went into effect, that the section thereof above quoted, would seriously interfere with the efficient administration of the criminal law unless the exercise of this right should be regulated by legislation. The punishment of crime should not only be certain but speedy. The result was, that in practice, writs of error were usually delayed until the death-warrant had been issued. This, under the system of return-days then in force, involved an average delay of nearly or quite a year, to which an additional year might sometimes be added, in the absence of any rule advancing such causes upon our crowded lists. The evils of such a practice were pointed out by this court, in commenting upon the Act of 1870, commonly called the Schoeppe Act (Schoeppe v. Com., 15 P. F. Smith 51), in which case it was said, by Agnkw, J.: “The effect of this law seems not to have excited attention. It has changed the whole doctrine of the criminal law as to the speed and certainty of punishment, and left to the felon both the hope and a door of escape, not only from the law’s delay, but by prison breach, and all the various means of avoiding retributive justice. At this moment, two cases occur to my memory of convictions of murder in Allegheny county, delayed by dilatory motions, where the prison doors opened by unknown means, and the prisoners escaped for ever. Any murderer' may, under this law, though like Probst, he may have murdered a whole family, take out his writ of error without limitation of time or condition, whether in prison under sentence, or stepping upon the trap of the gallows, with cause or without it, and suspend his case until the next term of the Supreme Court. No one could condemn him if) the death-warrant not preventing, he should wait till the term of the Supreme Court be passed, and then take out his writ of error to delay the execution of his sentence for a whole year. That only security to the public, the examination of the case and allowance of the writ for cause, is repealed.” The incorporation of the principle of the Schoeppe Act into the fundamental law, did not tend to lessen the evils above referred to. To remedy them in part, this court adopted a rule in 1877, making the first Monday of each month a special return-day in capital cases, and requiring such cases *to be heard on the fifth Monday after the writ is taken out, provided the court be in session in any part of the state. This rule, in connection with the Act of 1877, prohibiting the issuing of a writ of error or certiorari more than twenty days from judgment, would seem to provide against unreasonable delays. It remains to consider whether said act is constitutional.

A writ of error in criminal cases is not of course by the common law: 4 Black. Com. 392. It was of grace not of right. But in the third year of Queen Anne ten of the judges expressed the opinion that in all cases under treason and felony it was not merely of grace but ought to be granted; not that it was of course, but that where there was probable cause it ought not to be denied: Rex v. Wilkes, 4 Burr. 2550. There has been no time in this state, at least not within the last one hundred and fifty years, when a party aggrieved could not have his writ of error. The Act of 22d May 1722, § 9, 1 Sm. Laws 138, provided “that if any person or persons shall find him or themselves aggrieved with the judgment of any of the said Courts of General Quarter Sessions of the Peace and Goal Delivery, or any other courts of record within this province, it shall and may be lawful to and for the party or parties so aggrieved, to have his or their writ or writs of error; which shall be granted them of course, in manner as other writs of error are to be granted, and made returnable to the said Supreme Court of this province.” The Constitution of 1790, as amended in 1838, recognises this right. Section 5, of article 5, provided that “the party accused, as well as the Commonwealth, may, under such regulations as shall be prescribed by law, remove the indictment and proceedings, or a transcript thereof, into the Supreme Court.” The Act of 13th April 1791, 3 Dall. Laws 94, is a substantial re-enactment of the Act of 1722. It expressly provides, however, that no such writ of error or certiorari shall issue unless the same be specially allowed by the Supreme Court or one of the judges thereof, or with the consent of the attorney-general. The Act of 8th February 1848, Pamph. L. 26, provided that writs of error and certiorari may be issued to remove all cases from the criminal courts of Philadelphia when specially allowed by any of the judges of the Supreme Court. The 33d section of the Criminal Procedure Act of 1860, Pamph. L. 439, is almost a rescript of the Act of 1791. It will thus be seen that this state has always had a system providing for the review of criminal cases by the Supreme Court. It commenced with the common law, was continued by the Act of 1722; then by the Act of 1791, passed immediately after the adoption of the Constitution, and later by the Act of 1860. -Every person convicted of crime had a right to his writ of error provided he were aggrieved. It is true the writ required a special allocatur, but “when such removal is requisite for the due administration of justice, an allowance by one of the judges of this court is grant-able to the defendant of right, and ex debito justitice, and no judge of this court can refuse it:” Commonwealth v. McGinnis, 2 Whart. 113. It was not until the Act of 15th February 1870, Pamph. L. 15 (Schoeppe Act), that a writ of error could be sued out without cause, for the mere purpose of delay, upon the oath of the defendant.

This was the condition of the law when the recent constitutional convention assembled. That body did not change the law as it then stood, but merely incorporated the principle of the first section of the Schoeppe Act into the Constitution. For what purpose was this done? Manifestly to prevent its repeal by the legislature. The debates in the convention show this, and there could have been no other object: vol. 4, p. 232.

The Constitution then, having given a writ of error with or without cause, in a certain class of criminal cases, as a writ of right, has the legislature the power to control and regulate it ? It is conceded that the right may not be denied, nor may its exercise be unreasonably obstructed or interfered with. But may not the legislature fix return-days, and provide for a speedy hearing ? This court has already done so, by virtue of its inherent power to control its business, and we have no doubt our action was in entire harmony with the Constitution. If the time of returning the writ, or of the hearing upon it, may be limited by rule of court or Act of Assembly, why may not the time be limited during which the writ may issue of course, provided such limitation be reasonable ? If the legislature may fix no limitation whatever upon the issuing of such writs, it is not too much to say that capital punishment cannot be hereafter enforced in Pennsylvania. A writ of error taken out when the prisoner is standing upon the trap of the gallows, suspends his execution. Upon the hearing, he may suffer a non pros., and then, when a second death-warrant issues, renew his writ of error, and so on to the end of the dreary farce. The convention which framed the Constitution, and the people who ratified it, intended no such result as this when they incorporated the right to a writ of error into the fundamental law.

It is a well-settled rule, that legislation that affects the remedy merely, and does not deny the right, is not open to objection upon constitutional grounds: Stoddart v. Smith, 5 Binn. 355 ; Smith v. Merchand, 7 S. & R. 260; Bleakney v. Farmers’ and Mechanics’ Bank, 17 Id. 64; Turnpike Co. v. The Commonwealth, 2 Watts 433; Clark v. The Navigation Co., 10 Id. 364; Biddle v. Starr, 9 Barr 461; Taggart v. McGinn, 2 Harris 155 ; Keene’s Appeal, 14 P. F. Smith 268; Carter v. Commonwealth, 1 Grant 216; Bank of Kentucky v. Schuylkill Bank, 1 Parsons 180. The legislature may pass laws altering, modifying or even taking away remedies for the recovery of debts, without violating the provisions of the Constitution: Evans v. Montgomery, 4 W. & S. 218. Even a retrospective act, which merely touches the remedy, by removing a technical impediment, is constitutional: Hinckle v. Riffert, 6 Barr 196. So as to limitation acts: Miller v. Commonwealth, 5 W. & S. 488; Korn v. Browne, 14 P. F. Smith 55. Statutes authorizing the entry of judgment for want of an affidavit of defence, have been held not to impinge upon the constitutional right of trial by jury; Lawrence v. Borm, 5 Norris 225. In the same line of authority, what are known as stay laws, have been held to be constitutional. A state law which suspends, for a reasonable time, execution of a judgment on a prior contract, is not unconstitutional: Chadwick v. Moore, 8 W. & S. 49; Breitenbach v. Bush, 8 Wright 313; Huntzinger v. Brock, 3 Grant 243 ; Thompson v. Buckley, 3 W. N. C. 560. A statute punishing the carrying of concealed deadly weapons, does not infringe the 21st section of the Bill of Rights, saving the right of the citizen to bear arms in his own defence and that of the state: Wright v. Commonwealth, 27 P. F. Smith 470. These and many other instances that might be multiplied to an indefinite extent, show that the legislature may lawfully exercise its power for- the proper regulation of even constitutional rights. The Constitution is to some extent a declaration of rights. It neither enforces itself nor the privileges which it guarantees. It is the duty of the legislature to enforce its mandates, and to see that every citizen enjoys, or has the opportunity of enjoying, the immunities which it confers. But in providing for the enjoyment of individual rights, regard must be had to the welfare of the whole body of the people. A writ of error is a legal remedy, nothing more. Without legislation to carry it into effect, the constitutional provision in question would amount to nothing. It was said in Kenyon v. Stewart, 8 Wright 179, that “it cannot be doubted that it is as much the right of the legislature to restrict and limit legal remedies as it is their duty to furnish them.” This right is older than any of our constitutions, or even the common law.

The Constitution of the state of Wisconsin contains a provision that “ writs of error shall never be prohibited by law.” It was held in Smith v. Packard, 12 Wis. 371, that an act of that state, passed fifteen months after the date of the plaintiff’s judgment, and which reduced the time within which a writ of error should issue to two years from the date of the judgment, was constitutional. In Lombard v. Cowham, 34 Wis. 300, it was held that an act requiring the party suing out the writ to give bond, was constitutional; that the Constitution did not intend to prevent the legislature from providing by reasonable laws for the protection of defendants in error.

The Constitution contains no provision prohibiting the legislature from regulating the manner or the time within which writs of error shall issue in cases of felonious homicide. On the contrary, it is expressly provided, by art. 5, sect. 3, that the Supreme Court “ shall have appellate jurisdiction by appeal, certiorari or writ of error in all cases, as is now or may hereafter be provided by law.” The right to legislate is clearly implied from this language. In the case in hand, the Constitution gives the right to the writ, but it is for the legislature to provide for issuing it. This is within the general scope of the authority of the legislature as the sovereign lawmaking power of the state; it existed prior to the adoption of the Constitution, and nothing short of absolute prohibition in that instrument can take it away.

The Act of 1877 is a statute of limitation so far as it fixes a limit 1o the time within which a writ of error may issue of course. Is the limitation as to time reasonable? Of this we entertain no doubt. By analogy with civil proceedings, it affords a defendant all the time needed to take his writ. He can as readily issue it within twenty days as within twenty months; and if for any sufficient reason the twenty days have been allowed to pass, any one of the justices of this court has the power to allow the writ. It would be his clear duty to do so if the case presented any merits.

We are of opinion that the act is constitutional. Nor is it open to criticism upon other grounds. It denies no man’s right. It imposes no hardship upon any defendant. That it requires writs of error in capital cases to be taken out with reasonable promptness contravenes no rule of public policy or constitutional law.

We have no doubt this writ of error was taken out in entire good faith. The question of the constitutionality of the Act of 1877 was a question fit to be raised, and the learned counsel for the prisoner were justified in raising it. But that question having now been settled, we think it but right to say that hereafter a writ of error sued out in a capital case more than twenty days from sentence, and without a special allocatur, would be a direct violation of law and an abuse of the process of this court.

We have examined the merits of this ease with care, and with a disposition, in favorcm vitae, to allow the writ nunc pro tunc, if the record presented a question of even reasonable doubt. But it does not. The case was tried with marked accuracy and care by the learned judge of the court below, and there is nothing to justify our interference.

The writ of error is quashed; and it is ordered that the record bo remitted to the court below for the purpose of execution.