Commonwealth v. Green , 185 Pa. 641 ( 1898 )

Opinion by

Mb. Chibe Justice Stereett,

Without referring in detail to the averments contained in the defendant’s petition for certiorari, etc., it is sufficient to say that the sole object of the writ is to bring up the record in the proceedings before the two judges therein referred to, sitting as justices of the peace, etc., as ancillary to the habeas corpus for which a petition was presented by the defendant as relator at the same time.

The propriety of this practice in proper cases cannot be doubted. It has been recognized and approved in several cases among which are Com. ex rel. John W. Keely v. Howard Perkins, Superintendent, etc., 124 Pa. 36, and Com. ex. rel. v. Bell, 145 Pa. 374. But an essential prerequisite to the granting of any such special writ of certiorari is a meritorious and well-grounded petition for a habeas corpus. If that is wanting, the certiorari should be refused and the petition therefor dismissed. That prerequisite was wanting in this case, and for that reason the habeas corpus prayed for was denied. The exhibits attached to the relator’s petition for that writ, together with the admitted facts of his voluntary surrender to the sheriff of Philadelphia county by whom he avers he is unjustly deprived of his liberty, etc., show that he was arrested on a warrant regularly issued by James Gay Gordon, one of the judges of the court of quarter sessions of the peace in and for the city and county of Philadelphia, on complaint that day made, before said judge, “ upon the oath of George W. Painter,” charging the defendant in due form “with conspiracy with other persons to pass the bill or ordinance known as the Schuylkill Valley Water Bill hy corrupt and unlawful means, bribery and corrupt solicitation and attempted bribery; ” that on the same day the defendant with sureties entered into a recognizance taken and acknowledged before the clerk of said court, conditioned to appear before said judge, “sitting as committing magistrate,” etc.; that on April 7, 1898, the defendant, with same sureties, entered into recognizance taken and acknowledged in open court before said clerk, conditioned to be and appear at the courts of oyer and terminer and quarter sessions of the peace of Philadelphia when required; that thereafter and until April 28, so far as appears, the defendant was in the enjoyment of his liberty, at which time he voluntarily surrendered himself unto the custody of the sheriff, and presented his petitions to this Court for a habeas corpus, and certiorari as ancillary thereto.

During the twenty days that elapsed between the giving of the recognizance, on April 7, 1898, to appear in the court of quarter sessions when required, and the date of said surrender to the sheriff, it does not appear that any application was made to the court before which the defendant was recognized to appear, etc., for the correction of any error in the proceedings before the judge sitting as committing magistrate, either in holding the defendant for appearance in court or in demanding excessive bail. Without availing himself of that regular, legitimate and ordinary means of redress, he by his own act deprived himself of Ms liberty and thus made a case that was supposed to require the direct intervention of this Court. It requires neither argument nor citation of authority to show that such practice is essentially bad and should not be encouraged.

The information on which the warrant of arrest was issued fully sets forth, under the oath of George W. Painter, “ to the best of his knowledge, information and belief,” the criminal charge therein made against the defendant, and is sufficient, both in form and substance, to support the warrant of arrest.

Without further elaboration we are convinced there is no ground for granting the special certiorari. It is accordingly refused and the petition is dismissed at petitioner’s costs.

The same order, for same reason, is made in each of the other cases: Com. v. J. Emory Byram and Com.v. Charles Seger.