Commonwealth v. Smith

Opinion bv

Mb. Justice Mitchell,

The authority of this Court to remove causes by certiorari from the courts of oyer and terminer or quarter sessions is not now open to question. It was held in Com. v. Balph, 111 Pa. 365, that the power which had existed for a century and a half before 1874 was not taken away by the constitution of that date. That case was followed in Com. v. Delamater, 145 Pa. 210 where it was said, by a unanimous ■ court that the question was settled.

It is suggested by the learned district attorney that the remedy by application for change of venue under the Act of March 18, 1875, P. L. 30, has superseded the necessity of the exercise by this Court of its authority by certiorari. There is much force in this suggestion as to all cases to which that act applies, but the act does not take away our jurisdiction. That remains unaffected, though the occasions for its use are made fewer. The power itself is for exceptional cases only, and it will always be an important consideration in our practice under it whether an application should not be first made to the court in which the case is pending for such relief as that court may be competent to give. The petitioner’s case however being that of an untried indictment for what, serious as the crime is, is technically a misdemeanor, does not fall within the terms of that act.

The petitioner asks us to remove the indictments against him into this Court, on the ground that the popular excitement against him is such that he cannot, at least now, obtain a fair and impartial trial. This popular excitement is averred to be shown, and in large part to have arisen from the action of the councils of the city of Philadelphia, upon certain bills for the leasing of the gas and waterworks; from charges of corruption made in regard to the efforts to-pass the latter bill, and the action of a committee of common council appointed to investigate such charges; from the reiterated, exaggerated and inflammatory accounts of these proceedings published in the newspapers; from the piublic efforts of the district attorney and of a body of citizens called the Municipal League to induce the public to believe that an effort would be made by or in behalf of the petitioner to “fix ” the jury; from the unusual haste and urgency in bringing on the trial of these indictments; and lastly from the influence of the proceedings in a so-called investigation by two of the judges of the court in which the indictments were pending and liable to be tried.

It is not necessary to discuss in detail these various averments or the evidence in support of them. We are not disposed to thjnk that the action of councilmanic committees produces any^great excitement in the public mind. Nor do we find in the action of the district attorney in regard to the anticipated “ jury fixing ” anything that calls for criticism. If in possession of information that led him to fear such an attempt he would naturally and properly do everything in his power to prevent and counteract it. And it would be his duty to be alert even though the signs were small and the danger more in apprehension than in reality. Jury fixing, so called, is an exceedingly rare crime. The gain from the attempt is too doubtful and the risk too great ever to make it common. In trials that involve matters of great public interest, juries will be liable to be somewhat swayed by the popular excitement that pervades the community from which they are drawn. But the corruption of individual jurors in individual cases is of the very rarest occurrence. The action of the Municipal League was somewhat indiscreet in its specific direction towards the petitioner, as it appears to have been somewhat credulous on the general subject, but we are not convinced that it has produced any popular excitement or terrorism of jurors from which the petitioner is in danger.

The urgency with which the indictment was pressed to trial, and the inflammatory style of the newspaper reports on the subject may be considered together as the two causes in combination which certainly produced at the time of the filing of the petition a prima facie appearance of menace to the petitioner’s right to an impartial trial. But speed in pushing offenders to trial is not in itself unfair or unjust. On the contrary it is in the interest of the public. The most important element in the prevention of crime is the certainty of punishment, and next to that is the speediness of it. And an early trial is also in the interest of the innocent accused, provided fair and reasonable time is allowed him for preparation, by finding his witnesses, getting ready his evidence, etc. The petitioner’s case was pushed with unusual celerity, but a continuance was granted him until the next term, though this was more liberal in appearance than in reality, as the term was at its end and he was in fact notified that he would be called for trial in one week. Subsequent events have enlarged this time at least to the term following.

The newspaper accounts were certainly highly inflammatory and, had the trial taken place at the time first fixed, might have had a prejudicial effect ou the petitioner, though there is very.great force in the argument of the district attorney, which our experience confirms, that in a community so large and so diverse in habits and pursuits as this, there is seldom any real difficulty in getting a jury on whom newspaper accounts or comments have made no impression. But even aside from this, newspaper influence on any question, though very potent at the time, is necessarily short-lived. They make it so themselves. In the restless hunt for sensations with which to harry the public mind, novelty is the most essential element. Excitement cannot be kept long at boiling point. Yesterday’s sensation is superseded by today’s which will in turn be crowded out by tomorrow’s.

The last specification of the elements of the alleged inflamed condition of popular feeling is the course of proceeding in the so-called investigation, and it is the most serious of all we have had to consider. It appears that charges being made against the petitioner a warrant was issued, and he appeared before two of the judges of the court of quarter sessions sitting as committing magistrates or justices of the peace. After a hearing, he was bound over to answer at the then present term of court. This was the legal termination of the proceeding, but the two judges then went on to examine other witnesses and to conduct what has been called an “• investigation ” into the general subject of the bribery in councils charged in connection with the said water bill. This proceeding was wholly Avithout legal authority. There was no definite charge against any specified person, still less any affidavit subscribed by the affiant as required by the constitution. The high official and personal character of the judges conducting it cannot make up for the Avant of jurisdiction. They were not sitting as judges of the court of quarter sessions, but in their ex officio capacity of justices of the peace, and their acts must be tested by exactly the same standard as if they had been the acts of any police magistrate or justice of the peace throughout the commonwealth. It is needless to say hoAV soon such an officer would be checked if he undertook any such proceeding. The legal tribunal for inquiry and investigation, based on rumor, or common report, or general charges, is the grand jury, as its official name indicates, the grand inquest of the commonwealth inquiring for the county of Philadelphia, and its jurisdiction and methods are such as to afford ample security to the public interest without the sacrifice of individual rights.

The investigation was at times as illegal in manner as it was defective in jurisdiction. A witness being put on the stand under oath hesitated before answering questions which led directly to incriminating himself, and was addressed from the bench “ Look at the court, and with your responsibility to your God, tell us the truth,” and then a hesitating answer, followed by the command from the district attorney, “ Quick, don’t stop to think about it. You know. Now make a clean breast of it,” and then again the judge “ Tell the whole story. You owe it to yourself and to your country to tell it.” The witness, after a pause, “Well” — the judge “Look this way — look at me. Who was it? Answer the question.” And later on the district attorney “You might as well tell me now, because before you leave the stand I am going to have it. You might as well begin now and tell me the whole story. ...” By the judge, “ Why-do you hesitate ? A. I have to think. Q. Why? .... Now why do you ask for time to think ? You know who influenced you. Who was it ? ” And again the district attorney “ When was the money paid ? You might as well tell it first as last •, ” and so on through the examination. A weak and uninstructed man, without counsel, was in the powerful hands of a learned and able district attorney, and the judges, whose duty was to sit in impartial judgment upon the charges against him, joined in forcing from him an admission of his guilt. The examination of Lewis J. Walker before this self-constituted tribunal reads less like a proceeding in a Pennsylvania court of law than like a page from the recent trial of M. Zola which shocked the sense of justice of the civilized world.

It will not do to say that these proceedings were in the interest of the public for the exposure of a great wrong. We have not the least doubt that they were in good faith so intended, and many very worthy people may think them justified for that reason. But they were none the less illegal, and it is none the less our duty to say so with emphasis. No man, even for the accomplishment of a great good, can be permitted to set himself above the law, and least o E all the judge appointed to administer it. The French or Continental system of putting on the witness stand the person to whom the evidence or even suspicion points, and there subjecting him to an inquisitorial examination by the judges, as well as by the, prosecutor, has very great and manifest advantages for the detection and punishment of crime. It may be said that the escape of a guilty person from such an ordeal is practically unknown. But the system carries with it such danger to innocence and to individual liberty that it has never been tolerated in the common law of England and America, and has been expressly prohibited by safeguards written into every constitution of this commonwealth since 1776. The temptation to disregard them in the public interest is not new, nor without precedents, though the latter are happily few and not recent. Nearly ninety years ago, a very brilliant and able judge, though somewhat lacking in judicial calmness of judgment, issued a warrant for the arrest of a supposed counterfeiter who was likely to escape before a sworn affidavit, as required by the constitution, could be prepared. The constable refused to execute the warrant, and was indicted and convicted for failure in official duty. In this Court the argument was made that is now suggested that the constitutional restrictions were not intended to be impediments in the way of justice and, therefore, exceptions must be permitted, but the judgment was unanimously reversed, and in the opinion, Chief Justice Tilghman, one of the wisest and most careful judges who ever adorned any bench, said: “ The expressions of the constitution are very plain and very comprehensive. But it has been contended that the public safety requires that they should be subject to some exceptions ; that in case of necessity the oath may be dispensed with; and that the magistrate who issues the warrant must be the judge of that necessity. It appears to me that if this be the true construction, the provision in the constitution is a dead letter, because in every instance the magistrate who issues the warrant would say that he thought it a case of necessity. It is true that by insisting on an oath, felons may sometimes escape. This must have been very well known to the framers of our constitution, but they thought it better that the guilty should sometimes escape than that every individual should be subject to vexation and oppression.” Conner v. Com., 3 Binn. 38. To show that if constitutional requirements are disregarded, the danger of such oppression is not merely theoretical, it is only necessary to refer again to the trial of Zola in one of the most enlightened nations of the world, and under a republican form of government.

Nor is it any answer in the present case to say that the proceedings complained of were after the petitioner’s binding over, and therefore only concerned others. They were continued by adjournment from time to time until the day before that set for the petitioner’s trial, and in asking on that day for a temporary suspension of the investigation, the district attorney publicly assigned that trial as the reason, thus connecting the two matters closely in the popular mind, to which they were brought homo by large headlines and extended reports in the newspapers.

From the foregoing review of tlie case we think it clear that, when the petition was filed and this rule granted, there was a well-founded appearance of serious menace to the petitioner’s right to a fair and impartial trial, and if the conditions had continued we should unhesitatingly award a certiorari. But the circumstances have materially changed. The time that has now elapsed has been sufficient to allow any undue excitement of the public mind to abate or be transferred to new subjects ; the case can no longer be said to be urged to trial with unfair haste, as it is conceded by the district attorney that it cannot be tried before the next term; and the most serious menace of all, the apprehension, probably not really justified at any time, that it might be forced to trial before one of the judges sitting in the investigation, and thus the two matters be liable to he confused in the jurors’ minds, has passed away. The petitioner does not ask that the case should be sent to another county for trial, nor do we think any sufficient ground has been shown that it should. All that we could do therefore if we brought the record here would be to hold it until such time as an impartial jury could be drawn in this county and then send it down for trial before one of the judges of the court of quarter sessions not heretofore connected with the case. We are of opinion that these objects have already been attained by the proceedings upon this rule, and that there is no necessity for further action on our part.

Rule discharged.