Dyott v. Commonwealth

The opinion of the Court was delivered by

Huston, J.

The act relating to insolvent debtors, passed the 16th of June, 1836, among other things, provides as follows:

“ Sect. 42. If it shall appear to the Court, upon the hearing of any petition as aforesaid, either by the examination of the petitioner, or other evidence, that there is just ground to believe either—

“ 1st. That the insolvency of the petitioner arose from losses by gambling; or by the purchase of lottery tickets; or,

“ 2d. That such petitioner has embezzled, or applied to his own use any money or other property with which he had been entrusted, either as banker, agent or depositary, and to the prejudice of the opposing creditors; or

“ 3d. That he has concealed any part of his estate or effects, or colluded or contrived with any persons for such concealment, or conveyed the same to any for the use of himself or any of his family or friends, or with the expectation of receiving any future benefit to himself or them, and with intent to defraud his creditors 5 in every such case, it shall be the duty of the Court to commit such person to the jail of the county, for trial at the Court of Quarter Sessions of the same county.”

Section 43 proceeds to direct what shall be the sentence on conviction under each of the above clauses.

On the hearing of the petition of Dr. Dyott, he was committed for trial under the above law. The indictment and trial took place in a Court created by the act of 19th of March, 1838, and styled the Court of Criminal Sessions for the City and County of Philadelphia. One exception to this record was, that this Court had not jurisdiction of the case; and it was said it could only have been tried in the Court of Quarter Sessions for the City and County.

In order to understand this, and ascertain the proper decision, we must refer to other acts of assembly:

Our legislature had, some years ago, appointed three gentlemen of the law to arrange into one act the provisions of the law, where there were several acts of assembly on the same subject. In pursuance of this important duty they reported several bills, which came before the legislature, and after discussion in the usual form, were passed upon and became laws. The last reading of several of these occurred on the same day; and on the same 16th of June, 1836, a law was enacted relative to the powers and jurisdiction of Courts. In section 16, it is provided that the Cdurts of Quarter Sessions of the peace shall have jurisdiction and power within their respective counties, in certain cases; and after four specifications comes No. 5: — “ The Courts of Quarter Sessions shall have jurisdiction in case of fine, penalties, or punishment, imposed by any act of assembly, for offences, misdemeanors, or delinquences, except where it shall be otherwise expressly prescribed and enacted: Provided, nevertheless, that nothing herein'shall-alter or affect the jurisdiction of the Mayor’s Court. And provided, also, that the Mayors’ Courts of the several cities of this commonwealth shall have exclusive jurisdiction of all offences committed within the limits of their respective cities, which, by any existing law, or any law hereafter to be passed, are or shall be indictable in the Court of Quarter Sessions of the proper county, unless by the terms of the law expressly deprived of such jurisdiction.” As Dr. Dyott and his bank were within the city of Philadelphia, it would not be easy to show that his case would not, under these laws, have been cognisable before the Mayor’s Court, if it had continued to exist; but the Court of Criminal Sessions was constituted by the act of 19th March, 1838; by the 4th. section of which it is constituted a Court of record; has a seal and clerk. Section 5 provides for the appointment of the judges, and fixes their salaries. Section 6. “ The said judges shall severally be ex officio justices of the peace,” &c., &c. Section 8. “ The said Court shall have all the powers and exclusive jurisdiction ■within the city and county of Philadelphia, which is now exercised by the Mayor’s Court, within the. said city, and all the jurisdiction within the said city and county which the Court of Quarter Sessions now have, or may hereafter have, under the acts relating to roads,” &c., &c. Section 10. “ The grand and petit juries shall be selected from among the qualified citizens of the said city and county.” Section 11. The Court is to hold its first session on the first Monday of April, 1838; “ and from thenceforth all laws and acts of assembly, giving jurisdiction to the Court of Quarter Sessions of the County of Philadelphia, and all laws and acts of assembly creating or giving jurisdiction to the Mayor’s Court' for the City of Philadelphia, and the Recorder’s Court for the Northern Liberties, Ken-sington, and Spring Garden Districts; and all other acts of assembly shall be and are hereby repealed, so far as they are inconsistent with this act.” Section 12. “ The clerk of the Quarter Sessions for the County of Philadelphia shall be ex officio clerk of the said Court,” &c. Section 13. “ Constables, and all officers whose duty it was to make returns for, or to execute the process of the Quarter Sessions, or Mayor’s Court, or Recorder’s Court, are to make returns to and execute the process of this Court.”

“ Section 14. All bills, indictments, records and proceedings which shall be unfinished when the Court hereby created shall go into operation, in the Quarter Sessions of the county of Philadélphia, aforesaid, and the Mayor’s Court and Recorder’s Court, shall be certified to the said Sessions Court for the city and county of Philadelphia ; and the said Court shall proceed therein as if the said proceedings had been commenced in the same, and render .judgment, sentence, and decree thereon, and issue all process necessary to enforce the same.”

Now, if obvious meaning plainly expressed in positive laws have any force or effect, the Court of Criminal Sessions for the city and county of Philadelphia had jurisdiction of the case before us. It is said that the Court of Quarter Sessions of the county of Philadelphia has exercised jurisdiction of frauds committed, or alleged to be committed under the act about insolvent debtors. Of this, as it has been stated, we only know what was stated. The cases, if any such exist, cannot be judicially noticed, unless judicially before us. ' The Court of Quarter Sessions is as old as any part of the judiciary system of this state : and it seems to be a well recognised principle, that jurisdiction is not taken from a Court of record, unless by express words, or inference irresistible. It is not unusual that two Courts have concurrent authority; but without saying this is so as to the case before us, we say that the Court before which this case was tried had jurisdiction.

Another objection pressed was, that the venire did not issue, and that the jury were not drawn and summoned according to law. The 10th section of the law, establishing the Court of Criminal Sessions, among other things, prescribes that “ the grand and petit juries for each session, shall be drawn and summoned as is now directed for the Mayor’s Court.” Provided, that the venire need not be issued more than fifteen days, nor the jurors summoned more than ten days before the meeting of the Court. Now, it appears and is conceded, that the venire for the petit jury was not issued fifteen days before the meeting of the Court, but only thirteen days before. It also appears that when the trial was ordered on, a motion was made to quash the indictment.- This is stated-, and not denied, to have been on some objection to the panel of the grand jurors. On investigation, the objection was overruled, and the Court refused to quash. This is not complained of here; the objection is, as above stated, to the traverse jury. The gentleman who appears on the part of the commonwealth did not deny the fact that the venire issued less than fifteen days before the meeting of the Court, nor did he deny that this was an irregularity which would have been error, but he relied on two acts of assembly, particularly the last, as completely curing this irregularity. Before citing them, I may state, that by the common law, a person who, when arraigned, stood mute, was subjected to torture and suffered more than the pain of death by the executioner. Some, however, to avoid a conviction, which would be followed by forfeiture of all the accused had, were found of sufficient firmness of purpose and of nerves, to die under the torture for the purpose of preserving their estates to their children. In this state (then province,) by the 5th section of the act of 1717, a prisoner standing mute, when arraigned, was to suffer as if tried and found guilty by the jury. On the 23d of September, 1791, this was changed by the following enactment:

“Seo. 5. If any prisoner shall, upon his or her arraignment for any capital or inferior offence,' stand mute, or not answer directly, or shall peremptorily challenge above the number of persons summoned as jurors for his or her trial, to which he or she is by law entitled, the plea of not guilty shall be entered for him or her on the recoi'd; the supernumerary challenges shall be disregarded, and the trial shall proceed in the same manner as if he or she had pleaded not guilty, and for his or her trial had put himself or herself on the country.” Although this law has not the words “ with like effect,” after the words “ in the same manner,” yet most probably the sense is the same as if those words had been inserted.

From some cause, and probably from several writs of error in criminal cases, two of which are in 6th Binney, Commonwealth v. While and Commonwealth v. Eaton, the act-of 21st of February, 1814, was passed as follows:

“ No verdict hereafter to be given in any Court, civil or criminal, in this commonwealth, shall be set aside, nor shall any judgment in any Court be arrested or revised, nor sentence stayed, for any defect or error in the precept issued for any Court, or in the venire issued for summoning and returning of jurors, nor for any defect or error in drawing, summoning or returning any jury or panel of jurors; but a trial or an agreement to try on the merits, or pleading guilty, or the general issue in any case, shall be a waiver of all errors and defects in or relative" and appertaining to the said precept, venire, drawing, summoning and returning of jurors.”

It is apparent that the exception here, is to the very matter or matters which the last recited act was intended to cure, if defective or irregular. It is not necessary to say, what would have been the consequence if Dr. Dyott had not cross-examined the witnesses for the commonwealth, and had not called and examined witnesses in his defence; and the Court gives no opinion os such a case. After his motion to quash the grand jury was overruled, he refused to plead; in the language of the law, he “ Stood mute,” and by the direction of the Court the plea of not guilty was entered for him on the record. After this, it appears that the trial proceeded, and he called and examined twenty-six or twenty-seven witnesses. The law of 1791 was intended as a favour to persons arraigned in Court for a criminal offence,, but it was not intended to go farther or do more than it expresses, and it could not have been intended to operate on, and, in effect, to repeal a law passed in 1814, more than twenty years after its enactment. A prisoner standing mute, with a plea of not guilty entered for him, is to be tried in the same manner as if he had pleaded not guilty; and the verdict and judgment must have the same consequence as to punishment as if he had pleaded; but if he stand mute, and the Court, as they are bound to do, enter the plea of not guilty, and the trial proceeds, and a full defence by witnesses and counsel is made, and if after all this the defendant is to be allowed every exception which was open to him before the law of 1814, we should produce a result never intended and never expressed by the legislature. Any person by standing mute, would repeal, as to himself, the law of 1814, and every person would stand mute. The act of 1814, says, “ a trial or agreement to try on the merits, or pleading guilty on the general issue,” shall be “ a waiver of all errors and defects,” in, or relative to the precept, venire, drawing, summoning or returning of jurors. Here there was a full trial on the merits. The defendant, in the language of the act, waived every error and defect in all that related to the jury — he relinquished his right of challenging the array, and, so far as we see, of challenging individual jurors — (though several of them who were creditors, or who had formed opinions, mentioned this to the Court, and on being sworn as to the truth of it, were, by the consent of the attorney-general, directed by the Court to withdraw.) The construction and effect of this act have come before the Court in several civil cases, and in one criminal case where capital punishment followed the charge, (Commonwealth v. Smith.) It is true that the defendant had there pleaded not guilty. The Court, our predecessors, however, put it on the fact of a trial on the merits, and decided that all defects, in that case, and there were many in «every stage of the process for the jury, were cured by the act in question.

Another error was assigned in this. The sentence on Dr. Dyott was passed on the last day of August term. About the middle of the next term, the Court, on ascertaining that the wheels containing the names of the jurors for the year, had not, after drawing jurors for the several terms, been sealed by the sheriff and commissioners in the manner prescribed by law, directed and ordered that all bills of indictment found since the 1st of January, 1839, and to which the defendants had not pleaded, should be quashed. Afterwards, and in the next term, (the terms are monthly) on the 5th of October, the Court ordered the clerk to correct the above order by adding, “ except in cases where there has been a trial.” On the 12th of October, a motion was made by his counsel to quash the indictment against Dr. Dyott, and that he be discharged from the sentence and judgment of the Court passed on him in the preceding August term. This was refused by the Court, and is assigned for error.

A Court may correct an entry or judgment entered by them, if by the mistake of their clerk, or the ambiguity or uncertainty of the expressions used in entering it, injustice will be done; or if it is not producing the effect intended by the Court when it was entered. “ All indictments to which defendants had not pleaded,” would necessarily have excluded all those on which there had been a trial; and the second order for amendment would seem not to have been necessary, if we look at the act of 1791. The question how far, or in what cases, a Court can correct an entry of a judgment once made on their records, has been discussed in different Courts. I shall not cite the cases, not even all in our own Courts. As a general rule, there must be something by which to amend; see Murray and Cooper, (6 Serg. & R. 124,) and the cases cited 2 Wharton’s Digest, Judgment, C. These are all civil suits. It is one thing to change a sentence or judgment of a Court in a particular case, and a different thing to make an order or decree affecting several cases more specific and precise as to what cases it shall embrace. An order in civil cases setting aside or opening a judgment, is often a matter within the discretion of the Court; and it must be an extreme case which will make it the subject of a writ of error, see 2 Watts, 376; but it was there said by the chief j ustice, that this did not apply to judgments after trial and verdict; judgments which could not be opened or set aside after the term. And the law seems to be that after a trial, verdict and judgment, and a term elapsed, the judgment can only be affected by a writ of error from a superior court. If in every criminal case after a trial, the sentence is arrested first by motion, in arrest of judgment, and one term passes; then a motion for a new trial still pending is argued; the opinion of the Court held over, at the fourth term judgment and sentence passed; and after all this, the Court could go back and set all aside, at some future term, for some reason -which existed before the trial, and continued to exist and was unnoticed by the defendant in all previous stages, it would introduce strange confusion and uncertainty in the administration of justice. The act of 1814 was passed to prevent this. We are of opinion that there was no error in the proceedings of the Court in this case, but that if it had in October passed a decree or judgment, on motion, vacating and rendering null and void the trial, verdict, judgment and sentence, it would have greatly exceeded its powers.

The above contains all that was urged in the case, and all mentioned by the senior counsel. It is to be regretted that the same matter is sometimes repeated several times, in different words, or one point divided into half a dozen; that errors are sometimes assigned on facts occurring at the trial, when there is nothing on the record to show it; that when only part of the record is submitted to the Court, it is assigned for error, that there is something amiss in what the counsel will not show to us: for example, it is assigned as error No. 12, that there were eleven counts in the indictment; and in No. 25, that the verdict was general on distinct offences: and yet we saw but one count, and nothing except in the assignment of errors to lead us to suspect there were any others. This loose practice of assigning errors is too common, and counsel ought to avoid it. I should not have mentioned it here, if it had not been necessary to show that we did not pass over in silence, errors assigned, and some of which, if they had been supportéd by the facts of the case, had an imposing appearance; for example — that the commonwealth challengéd jurors. Now, it has a right to challenge for cause, and it was not even stated that the attorney-general challenged except for cause. Upon the whole, we see no cause for reversal; and the judgment must be affirmed.

Judgment affirmed.