Opinion
Argued March 26, 1951
Decided April 17, 1951
Criminal law — Practice — Preliminary hearing — Waiver of jury trial — Indictment — Date of commission of crime — Variance in proof.
1. In a habeas corpus proceeding, in which it appeared that a coroner's jury had held a homicide case for action by the grand jury, which had indicted relator for murder; and that at trial after the Commonwealth had introduced its evidence defendant had changed his plea to one of guilty; it was Held that, in the circumstances, (1) it was not material that there had not been a preliminary hearing; (2) a waiver by defendant was unnecessary; (3) an alleged variance between the date of the crime set forth in the indictment and that proved by the evidence did not constitute a fatal defect in the indictment; and that (4) relator had received a fair trial. [235-9]
Criminal law — Arrest — Officer — Privilege — Felon.
2. A police officer is privileged to arrest a felon without a warrant. [238]
Before DREW, C. J., STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 61, March T., 1951, from order of Court of Common Pleas of Allegheny County, April T., 1950, No. 81, in case of Commonwealth of Pennsylvania ex rel. Albert Bandi v. Stanley P. Ashe, Warden, Western State Penitentiary. Order affirmed.
Habeas corpus proceeding.
The facts are stated in the opinion, by PATTERSON P.J., of the court below as follows:
This matter comes before the court on petition of the relator who is an inmate of the Western State Penitentiary, having been sentenced by the Court of Oyer Terminer of Allegheny County on a charge of murder in the second degree. The petition was received through the mail. It was ordered filed and a rule was granted on Stanley P. Ashe, Warden of the Western State Penitentiary, and the District Attorney of Allegheny County, to show cause why the writ should not issue. Answers have been made thereto.
From the record it appears that relator was sentenced on January 28, 1947, at No. 92 December Sessions, 1946 to a term of imprisonment of not less than eight nor more than sixteen years, effective from September 15, 1946 (the date of relator's arrest). On the same date, a nolle pros was entered at No. 93 December Sessions, 1946, by reason of a plea of guilty of the defendant at No. 92 December Sessions, 1946, charging murder, and involving the same set of facts. Said sentence was duly signed and endorsed by the Court.
The relator summarizes his complaints as follows:
"1. Your petitioner claims the indictments were improperly drawn up.
"2. Your petitioner did not endorse the indictments Nos. 92 and 93, listed in Paragraphs No. 1 and 2 of this petition.
"3. Your petitioner claims there was no waiver endorsed or presented for your petitioner's signature.
"4. Your petitioner claims he was denied a fair trial.
"5. Your petitioner claims the arresting officer had no written warrant.
"6. Your petitioner claims there was no hearing before an Alderman or a Justice of the Peace.
"7. Your petitioner claims it was illegal for the defense attorney to stop the trial, and enter a plea of guilty."
The District Attorney of Allegheny County has filed a full and complete answer to the petition, and has submitted therewith the original records in this case. From the record it appears that the indictments are in proper form and are duly signed by the foreman of the Grand Jury and the District Attorney. Relator further states in the body of his petition that the crime was committed on September 12, 1946 and that the indictment gives the date of the crime as September 15, 1946, at which time he was in the custody of the police. The history of the crime shows that the actual stabbing (or "cutting" as it is termed by the relator) occurred on September 11, 1946, but that the victim did not die until September 15, 1946, on which date relator was arrested and charged with murder. We do not believe that this difference in dates is a fatal error in the indictment. Section 11 of the Act of March 31, 1860, P. L. 427, provides: "Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterward; and every court, before whom any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared."
In the case of Commonwealth v. Grove, 91 Pa. Super. 553, it was said: "The Commonwealth is not bound by the date laid in the bill of indictment but can show any date within the statutory period and prior to the finding of the indictment, except in cases where time is of the essence of the offense . . ."
See also Commonwealth vs. Tassone, 246 Pa. 543, at page 549, in which the Court said: "A mis-statement in an indictment of the date of the commission of a crime is a mere formal defect if it be shown on the trial that the offense charged had been committed."
We believe that the date set forth in the indictment in the instant case is within the statutory period. Certainly there could have been no doubt in the mind of the relator of the exact nature of the crime of which he was accused.
The second contention of the relator, i.e., that he did not endorse the indictment is also without merit and is untrue. The indictment at No. 92 December Sessions, 1946, charging murder and voluntary manslaughter and upon which relator was sentenced, shows conclusively that relator pleaded guilty to the crime and signed the indictment on the back thereof.
It is true that no waiver was endorsed by relator or presented to him for signature. However, a waiver was unnecessary in this case, since relator originally entered a plea of not guilty and proceeded to trial by a court and jury, with the representation of counsel appointed by the court.
We do not believe that relator was denied a fair trial. It appears that the case proceeded to trial in the usual manner. After the Commonwealth's evidence was in, counsel for the defense informed the court that relator had advised him he wished to plead guilty. The testimony shows the following (page 97): "Mr. Safier: If your Honor please, the defendant has advised me that he wishes to plead guilty to the charges contained in the indictment. Mr. Kalson: I suggest that the defendant so indicate himself. The Court: Have the defendant stand up. The Court: (Addressing the defendant) You have heard the indictment against you read and to it you have pleaded not guilty and asked to be tried by God and your country. Now, how do you plead? The Defendant: Guilty. The Court: Let the record show that the prisoner pleads guilty." The Court then proceeded with the testimony. Defendant took the stand to testify in his own behalf. The Court fixed the degree of guilt as murder in the second degree. There was nothing illegal in this procedure, and relator's complaints thereon are without merit.
As to the relatos's contention that he was arrested without a warrant, the law is well established on this point. The courts of Pennsylvania have held repeatedly that a police officer, or a private citizen for that matter, may arrest a felon without a warrant.
It is true that there was no preliminary hearing before an alderman or justice of the peace. However, this is immaterial, as there was an inquest into the death of Catherine Bandi on November 8, 1946 in the office of the Coroner of Allegheny County, and the coroner's jury held the case for Grand Jury action. As stated above, the Grand Jury returned a true bill, and the case proceeded to trial in the usual manner.
Relator complains of other matters in his petition, which are not properly before us in habeas corpus proceedings. For instance, he claims that the "cutting" was in self-defense. The matter of his guilt or innocence, as well as the evidence produced at the trial, are matters to be reviewed by the appellate courts on appeal. It is well settled that habeas proceedings cannot be substituted for appeal.
Relator having failed to show probable cause for his deliverance from custody, the writ will be denied.
Relator appealed.
Edward T. Tait, with him Kountz, Fry Meyer, for appellant.
Owen B. McManus, Assistant District Attorney, for appellee.
Order affirmed on the able opinion of President Judge PATTERSON of the learned court below.