March v. Commonwealth , 10 Sadler 479 ( 1888 )

Opinion by

Mr. Justice Williams:

The plaintiff in error testified to the service of a subpoena from the quarter sessions upon one Silverman, requiring him to attend as a witness in a pending cause. Upon the proof of service thus made, an attachment was issued against Silverman, and he was arrested and brought into court. When he was examined as to the reason, of his disobeying the subpoena he testified that he had never been served in any manner and satisfied the court that the testimony of March was untrue. The judge thereupon made an order requiring March to give bail for his appearance to answer the charge of perjury, and at the same time directed the district attorney to present to the grand jury an indictment against him for that offense.

March gave bail for his appearance, and an indictment against him was returned by the grand jury “True bill” at the next term of the court. When the case came to trial before a traverse jury, the defendant was acquitted of the perjury; but the costs of the prosecution, amounting to several hundreds of dollars, were imposed upon him by the verdict.

The questions now raised relate to the power of the judge to make the order, and to the validity of the verdict and sentence upon the indictment directed by him.

The powers of the judges of the court of quarter sessions of the peace and the oyer and terminer in Pennsylvania include those of a committing magistrate. It rarely happens that a necessity presents itself for the exercise of this power; but it exists, and is as old as the common law. It is a necessary and salutary power, and its exercise upon proper occasions has been of great importance to the proper administration of the criminal law.

Where, however, a judge sits as a committing magistrate he should be careful to make a suitable record of his action, so that not only the order to hold to bail shall appear, but enough of the circumstances to show a reason for the order. If made during the sessions of the court, the commitment should be entered upon the minutes by the clerk. If it is made at chambers, it should be reduced to writing and filed with the clerk that it may serve the same purposes as if it had been made by a justice of the peace or returned by him.

The defendant has the same right to have the commitment examined on motion for his discharge or on habeas corpus in-the one case as in the other; and the order should contain all the essentials necessary for the information of the district attorney and the court.

The entry made in this case is informal, but the defendant complied with it without objecting to its want of form. He denied the power of the judge to make the order in any form and asked the court to vacate it. In this position he was mistaken. The power exists. The propriety of its exercise in any given case is a question which the judge must determine in view of all the circumstances; and we cannot review his actions or supervise his conclusions in matters of this sort. If a justice of the peace returns a transcript of his proceedings in a criminal case that is defective in form, the defect is taken advantage of on motion for the discharge of the defendant or to grant the commitment; but after an indictment has been found, the defendant pleaded to it, and a verdict rendered by a jury, it is too late to object to the form or the commitment of the proceedings before the justice. Precisely the same thing is true of a commitment ordered by a judge. Objections relating to matters of form must be raised at the proper time, or they will be regarded as waived. After plea and trial we can no more look into this commitment than if it had been made by a justice of the peace.

The judgment is affirmed.