Commonwealth v. Gaines

Opinion by Morrison, J., At the January Sessions, 1909, in Chester county, an indictment went before the grand jury in the above-entitled case and the record proper shows that Nora Williams’ name was indorsed on the indictment as prosecutrix and that the name of Thompson Hudson was upon the indictment as a witness. The presumption of law is that his name was properly placed upon the indictment by the district attorney and’ that the grand jury would discharge its duty and call him and hear his testimony before ignoring the bill. Moreover, it is a conceded fact that he went before the grand jury and testified. The record proper shows that on January 27, 1909, the bill was ignored and the costs placed on the prosecutor, Thompson Hudson. On the next day a rule was granted to show cause why the findings of the grand jury as to costs should not be vacated and set aside. After argument, the court, on April 12, 1909, discharged the rule and sealed a bill for Thompson Hudson. On May 10,1909, the docket entries show that Hudson appeared before the court and was sentenced to pay the costs of prosecution, and he thereupon took this appeal. We are not furnished with a copy of the sentence and so far as we can discover from the record it was not excepted to. It is now familiar and well-settled law that grand jurors may be called to prove some things that may have taken place during their investigations, but as to other matters occurring before that body, it is not competent to interrogate a grand juror. In Gordon v. Com., 92 Pa. 216, Mr. Justice Mercur, speaking for the Supreme Court, said: “It must be conceded that the rule shall not be carried so far as to conflict with the juror’s oath. He shall not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto, nor to the act of either which might invalidate the finding of the jury. His action, and the action of his fellow jurors, must be shown only by the returns which they make to the court. "What a witness has testified to before them is quite another matter.” The same principle is recognized in Com. v. Green, 126 Pa. 531. In view of the [556] above rule we think it was incumbent on the counsel for appellant to put upon the record, in plain terms, just what he proposed or expected to prove by the foreman of the grand jury, so the court could limit the testimony to such matters as a grand juror has a right to disclose. Tested by this rule the first three assignments of error are bad. In our opinion, each and all of the questions embraced in said three assignments might have called out improper testimony. Therefore, the court was warranted in excluding the evidence and thus avoiding invalidating the finding of the jury by incompetent, evidence. The first three assignments are not sustained. The fourth assignment is in substance that the court erred in not permitting the foreman of the grand jury to testify whether or not the writing of the name of Thompson Hudson upon the back of the indictment was so made by the district attorney at the direction of the grand jury. This was wholly immaterial. It is to be presumed that the district attorney placed the name upon the indictment, and in addition to that it is conceded that he wrote the name of Thompson Hudson on the indictment. Suppose some of the grand jurors did request the district attorney to place the name of Thompson Hudson upon the back of the indictment; that officer would have the right to comply with the request if his judgment approved of it. The fourth assignment is not sustained. The indictment was ignored and the costs placed upon Thompson Hudson on January 27, 1909, and on February 16, 1909, Frank S. Paxon, signing himself as secretary of the late grand jury, wrote a long communication, relative to the costs on said indictment, to a newspaper, and it was published. This was long after the grand jury had transacted its business and adjourned. The fifth assignment complains of the court for not admitting in evidence said communication. We can conceive of no theory upon which it is competent evidence bearing on the subject being investigated by the court, and the learned counsel for the appellant has not suggested any convincing reason in support of this assignment nor has he cited any authority [557] sustaining his proposition that said communication was evidence. The fifth assignment is not sustained. The sixth assignment is that the court below erred in refusing to set aside the finding of the grand jury as to costs. This order of the court was made on April 12, 1909, and a bill of exceptions was sealed for the appellant. But in our opinion, on what is now before us, it was purely discretionary with the court as to whether or not it would set aside said finding of the grand jury. Where a matter rests in the sound discretion of the court below the appellate court will only reverse for a clear abuse of that discretion: Com. v. Edmiston, 30 Pa. Superior Ct. 54. In that case we said: “WTiere the motion to quash was based on an allegation of facts outside of the record proper, our revisory jurisdiction must necessarily be confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by a bill of exceptions.” In the present case there is nothing appearing in the record proper to convict the court of an abuse of discretion, nor is there any evidence duly brought upon the record by a bill of exceptions which establishes such abuse of discretion. Moreover, refusing to set aside the finding of the grand jury as to costs, without more, does not legally injure the defendant. It is the sentence which works such injury' and which gives him the right to appeal. But there is no assignment of error as to the legality of the sentence, nor does it appear that any exception was asked for as to the sentence. Indeed, the sentence is not furnished to us. In Com. v. Beale, 19 Pa. Superior Ct. 434, we held as stated in the syllabus: “On appeal, objection cannot be taken to the legality of the sentence in a criminal case where there is nothing on the record to show what exception had been taken to the sentence and the assignment of error does not set forth the sentence itself.” In Guffy v. Com., 2 Grant, 66, cited by appellant’s counsel, the disposition of the costs was by the trial jury, hence' the question came before the court directly and it was not an attempt to prove by a grand juror grounds on which to [558] impeach the return of the grand jury. The sixth assignment is not sustained. The order of the court is affirmed and the appeal dismissed at the costs of the appellant.