Kilpatrick v. Commonwealth , 31 Pa. 198 ( 1858 )

The opinion of the court was delivered by

Strong, J.

This record presents several questions of the gravest importance. We are not insensible to their magnitude. Involving, as the case does, principles which lie at the basis of the administration of criminal justice, and possibly affecting human life, we have given it our most careful consideration.

The principal questions relate to the constitution of the court in which the indictment was tried, and to the instruction which was given to the jury. There are other minor things, which we shall not overlook.

The record exhibits that, at a court of Oyer and Terminer for the city and county of Philadelphia, John Kilpatrick, the defendant, was indicted, tried, convicted of murder in the first degree, and sentenced. The first assignment of error is that “ it appears by the record that the case was tried by the Hon. James R. Ludlow and Joseph Allison, neither of whom was the President of the Court of Common Pleas; and therefore the said judges had no constitutional right to hold the said court and try the said case; and that the entire proceedings are void and coram non judice."

Upon the argument in this court a doubt was suggested, whether this question is raised by the record. The doubt was not without reason. Personally we know that Judges Ludlow and Allison are associate justices of the Court of Common Pleas, learned in the law, and that neither of them is the president of that court. Yet can we judicially take notice of the fact, that neither of them is the president of that court, when the defendant did not deny it by plea, and when the record does not show it; but, on the contrary, avers that the trial took place at a court of Oyer and Terminer ? Doubtless, there are many things of public interest, things which ought generally to be known, of which courts will take notice without proof. Rut whether a superior court is bound to know who are the judges of subordinate courts, and what is the nature of their commissions, is by no means clearly settled. In the English courts, it has been held, that such facts a court cannot be presumed to know. In Skipp v. Hooke, 2 Strange 1080, a writ of error from the King’s Bench to the Common Pleas, it appeared that the placita was for the end of the term, before Sir John Willes and his brethren: the writ was returned, “ Teste Philip, Lord Hardwick.” It was objected that the writ ought to bear teste in the name of Sir John Willes. To which it was answered that though the court had a private knowledge who was Chief Justice of the Common Bench at that time, yet they could not judicially take notice of it, and Lord Hardwick might be Chief Justice in Easter term when the writ issued. Besides, it was an exception to reverse a judgment, in which case the court will never go out of the record, and that the proper place to take advantage of irregularity was by motion in the Common Bench. Of this opinion was the court, and the judgment was affirmed. This case was followed by Van Sandau v. Turner, 6 Ad. & Ellis, N. S., 773, in which Lord Denman declared that the Court of Queen’s Bench did not accede to the proposition that they were bound to take notice of the fact that a certain person was a judge of an inferior court.

In the American courts the question is still an open one, though it has not often arisen. In Ripley v. Warren, 2 Pick. 592, the Supreme Court of Massachusetts declared, that whether the court must know who are the justices or the chief justices of inferior tribunals certainly admits of question. In Louisiana, it appears to have been ruled, that superior courts are presumed to have such knowledge; 3 Louis. 13, Follain v. Lefevre. In Pennsylvania, the question is not known ever to have arisen.^*

Notwithstanding the doubts, however, which have elsewhere entertained in similar cases, we are disposed to take judicial notice of the facts that, at the time of the trial in the court below, Judge Thompson was President Judge of the Court of Common Pleas of Philadelphia county, and that Judges Ludlow and Allison, though justices learned in the law, were only associates. The rule is, that courts will take notice of what ought to be generally known within the limits of their jurisdiction. There seems to us, to be as much reason for our having knowledge of who are in fact the judges of our constitutional courts,'as for our having judicial knowledge of the heads of departments, sheriffs, &c.; knowledge of whom is always presumed.

We come therefore directly to the inquiry whether two associate judges of the Court of Common Pleas of Philadelphia— commissioned as such, though learned in the law, can hold a court of Oyer and Terminer within that county. The objection is, that the constitution makes the presence of the President of the Common Pleas, essential to the existence of a court of Oyer and Terminer. We shall be aided in our examination of this objection, by a reference to the constitution of 1790, as well as to the amended one of 1838. The fifth article of the constitution of 1790, section 4th, provided for the establishment of Courts of Common Pleas. It ordained that until it should be otherwise directed by law, the several Courts of Common Pleas should be established in the following manner. The governor should appoint in each county not fewer than three, nor more than four judges. The state should be divided by law into circuits, none of which should include more than six, nor fewer than three counties. A president judge should be appointed in each circuit. The president and judges, any two of whom should be a quorum, should compose the respective Courts of Common Pleas. The fifth section of the same article ordained in these words: “ The judges of the Courts of Common Pleas in each county, shall, by virtue of their offices, be justices of Oyer and Terminer and general gaol delivery, for the trial of capital and other offenders therein. Any two of the said judges, the president being one, shall be a quorum.” Two things are noticeable in this constitution. It made provision de novo for the establishment and organization of the Courts of Common Pleas, and it does not appear to have been contemplated that any other judges of those courts than the president might be learned in the law. Indeed the phrase “ learned in the law” is not to be found in the instrument. Although the establishment and mode of organization of the Courts of Common Pleas were thus prescribed, yet the constitution recognised the power of the legislature to make changes in both. Accordingly, such changes were made, without objection. The legislature reduced the number of judges in each county to two. They formed circuits containing less than three counties. They enacted that there should be four judges of the Court of Common Pleas of Philadelphia, that one of the associates should be a judge learned in the law, and that such an associate might hold a court alone, although two other judges might be holding court at the same time. The same power was also conferred upon the president judge, and this, notwithstanding the provision of the constitution of 1790, that “ the president and judges, any two of whom should be a quorum, shall compose the respective Courts of Common Pleas.” This legislation was not. supposed to be in conflict with the constitution, but was regarded as fully authorized by the provision that the Courts of Common Pleas should be established as designated, until it should he otherwise directed hy law.

Were it necessary to seek for a reason, why the framers of the constitution of 1790 introduced the provision that any two of the judges of the Common Pleas, the president being one, should be a quorum of the Oyer and Terminer, it might doubtless be found in the design to give to that court the benefit of a judge learned in the law. When the constitution was made, it was not contemplated, that any other than the presidents, would be law judges, for as has been said, the phrase, learned in the law, is not used in the instrument. The purpose of the framers was, therefore, accomplished, by the provision, that the president should be one of the quorum. Yet, as has already been observed, the legislature were empowered to enact other directions, respecting the establishment of the several Courts of Common Pleas.

The amended constitution of 1838 was then adopted. The first section of the fifth article remains unchanged. The second section makes provision for the appointment, tenure, and compensation of the judges. The third section is as follows: — “ Until otherwise directed by law, the Courts of Common Pleas shall continue as at present established. Not more than five counties shall, at any time, be included in one judicial district for said courts.” The fifth section is a transcript of the same section in the constitution of 1790. It ordains, that the judges of the Court of Common Pleas, in each county, shall, by virtue of their offices, be justices ■ of Oyer and Terminer and general gaol delivery, for the trial of capital and other offences therein. Any two of the said judges, the president being one, shall be a quorum. The present constitution did not, like the former, attempt to establish Courts of Common Pleas. It adopted those already in existence, subject, as they had always been, to the power of the legislature to make changes in their organization as well as in their powers. What constitutes a quorum, belongs to the organization, and the legislature has the same power over it, under the amended constitution, that they had under the former. .Under that, as we have seen, they made one judge competent to hold a Court of Common Pleas, and their action was not denied to be constitutional. It is not easy to see, why the number of judges, two, is not as necessary to form a constitutional quorum, as is the presence of the president judge. Yet it will -not be questioned, that the legislature can constitutionally so modify the Courts of Common Pleas as to increase or diminish the number of associate judges, and increase the number necessary to form a quorum.

Such being the power of the legislature, over the organization of the Courts of Common Pleas, we proceed now to inquire how far it has been exercised. — On the 25th of February, A. D. 1840, an Act of Assembly was passed providing for the establishment of the Court of General Sessions for the city and county of Philadelphia. Upon this court, were conferred all the powers and privileges which belong to the courts of Oyer and Terminer in the several counties of this Commonwealth. The second section enacted, that any one of the'judges should have full power and authority to hold the said court for the trial of all indictments (excepting in cases of homicide, when there should be two of the said judges).

On the 3d of February 1843, the legislature abolished this court, and conferred all its powers, jurisdiction and authority upon the Court of Oyer and Terminer, General Gaol Delivery, and Court of Quarter Sessions of the Peace in and for the city and county of Philadelphia. The second section of the act directed the appointment of an additional associate judge of the Court of Common Pleas, who should be learned in the law. This was done, and the constitution of the court was thus changed. The number of associates was increased from two to three, and all of them were law judges. The third section provided that the Court of Oyer and Terminer, &c., of Philadelphia, thus constituted, should hold six terms in each year. The fourth section enacted, that any one of the judges of said court shall have full power and authority to hold said court for the trial of all indictments, except in cases of homicide, when there shall be two of said judges. The fifth section enacted, that at least ten days before the term, or at the commencement of the year, the court shall decide which of the judges shall hold the Courts of Oyer and Terminer; and in all cases in which two judges are required to try a case, the judge holding the court shall select one of the others to hold the court with him, and the said judge who it has been decided shall hold the court, shall preside during the session.

If this Act of Assembly be such as the legislature had constitutional authority to enact, than it is clear, that the court by which the plaintiff in error was tried was legally formed. The act is not an attempt to establish a new court, which the legislature are authorized to do by the first section of the fifth article: If it be valid at all it is because it is a reorganization of the existing Court of Common Pleas, under the clause of the constitution which ordains, that “the Courts of Common Pleas shall continue as at present established, until otherwise directed ly law." The plaintiff in error denies that the act is constitutional. We cannot regard this as an open question. Whatever doubts we might have, were the question res nova (and, speaking for myself, I should have many), we are not now at liberty to entertain them. The validity of this Act of Assembly, as well as the intent of the constitutional provisions, have heretofore been authoritatively defined. In Commonwealth Zephon, 8 W. & S. 382, the enactment was ruled to be constitutional, and it was held, that in the city and county of Philadelphia, a Court of Oyer and Terminer may be properly holden by two associate judges of the Court of Common Pleas. That case has since been repeatedly recognised as binding authority. See Commonwealth v. Martin, 2 Barr 244; Commonwealth v. Ford, 5 Barr 209; Northern Liberty Hose Company, 1 Harris 196. It has also been followed by practical consequences. In reliance upon it, the Oyer and Terminer of Philadelphia has continued to be constituted by two associate judges. Before such courts we are informed indictments for homicide have been tried, and there have been numerous convictions. In some of the cases, sentence of death has been passed and executed, and in others, the convicts are now undergoing imprisonment. It is too late for us to declare The Commonwealth v. Zephon is all wrong, and that the act of 1843 was in conflict with the constitution. Adopting the language of the court in Commonwealth v. Martin, nothing less than an imperative case would justify us in disregarding an act of the legislature at the expense of throwing open the jails and turning loose upon the community the malefactors convicted in a course of years.

There is an obvious distinction between the duties of this court' and those of the legislature. While the lawT-making branch of the government should avoid the exercise of doubtful powers, with us the presumption ought to be that they have not transcended the limits of their legitimate authority. It must be a clear and unequivocal case, which will justify us in declaring an Act of Assembly unconstitutional, and more especially Avhen its constitutionality has been affirmed by our predecessors, and relied upon in practice.

The second, third, fourth, and fifth assignments of error have not been pressed in the argument, and we have not discovered in what particulars, error was committed.

The sixth exception relates to the admission of what are called dying declarations. Undoubtedly, such declarations are-inadmissible, unless at the time the declarant made them he was in actual danger of death; unless he believed death was impending, not distant; and unless death actually ensued. All these requisites seem to have existed in the present case. The only possible question is, whether the admitted declarations were made under a sense of impending death. It is not necessary that they should be stated at the time to be so made: 1 Grreenleaf Ev. 158. It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved, by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant’s mind. When the declarations admitted here were made, the proof is, that McCracken, the declarant, appeared to be in a dying condition, as if he could not live many minutes. He said he was in a dying condition, and that he would never get up, and made arrangements for his burial. Surely, this was sufficient evidence of a sense of impending dissolution. We cannot, therefore, say there was error in admitting the evidence.«

The remaining errors assigned relate to the charge of the court, and (with the exception of the twelfth) may properly be considered together. The principal objection to the charge is, that the court beloAV adopted the construction which was given to the Act of 1794, by Judge Rush, in the case of Commonwealth v. Smith, and the objection has been pressed upon us with great earnestness and ability. Such, however, has been the uniform construction given to the act, from the time of its enactment to the present day. Very early after its passage, in 1795, the case of Mulatto Bob was tried before Chief Justice McKean, and his associate, Judge Smith, two of the three judges of the Supreme Court, and in it the court declared their sense of the true meaning of the Act of 1794, corresponding with the doctrine of Judge Rush, and with that given to the jury in this ease. That was a contemporaneous construction of the act, and by the highest authority. Mulatto Bob’s case, 4 Dall. 146, was followed by Commonwealth v. O’Hara, 7 Smith’s Laws 694, also tried before two justices of the Supreme. Court; by Commonwealth v. Smith, 7 Smith’s Laws 696; by Commonwealth v. Green, 1 Ash. 289; and by numerous other cases. In all these, there is no essential variance of doctrine. A construction so uniform, so long-continued, and which has remained untouched by the legislature, from 1795 to the present day, we are not at liberty to repudiate.

We think, also, that those portions of the charge of the court to which exception is taken in the eighth, tenth, and eleventh specifications are fully sustained by the authorities.

It is urged, in support of the ninth exception, that the court withdrew from the jury the question whether the offence charged, was murder in the second degree. We repeat, what has often been said, that the charge of the court must be considered as a whole. Thus considered, it is apparent that the jury were left free to find a verdict of murder in the second degree, if, in their opinion, such a verdict was warranted by the evidence. Nor is it at all certain that even the isolated sentence in the charge, to which exception was taken, was not entirely correct. It was not a binding direction, and could not have been so understood by the jury. The question which they subsequently addressed to the court shows that they did not so understand it. The killing of McCracken by the prisoner was admitted; the killing with a deadly weapon was admitted. There was no pretence that the wound was not designedly given. The intent to take life was presumable from the nature of the weapon used. The offence must therefore have been murder in the first degree, or manslaughter, as the jury might find that it was committed deliberately and premeditatedly, or in hot blood. A judge may rightfully express his opinion respecting the evidence, and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury-

The final exception is, that the court erred in the instruction which they gave to the jury, respecting the evidence of the prisoner’s good character. This, like the former, is based upon a misconception of the charge. We do not,understand the purport of the instruction to have been, such as it is contended to have been by the counsel for the plaintiff in error. The substance of the charge was, that the law permitted evidence of good character to be submitted to the jury (of course for their consideration) in every case of homicide, no matter what might be the other testimony in the cause, and that when a doubt arises as to the guilt of the accused, such doubt was conclusive in his favour. This by no means confined the jury to attaching importance to the evidence only in cases of reasonable doubt. On the contrary, it left them at liberty to make it a basis for the formation of a doubt. The charge is, therefore, not liable to the criticism which has been made upon it.

This disposes of the whole case. Guided as we must be by the law as already settled, we are constrained to say that we discover no error in this record.

The judgment is affirmed.

Thompson, J., dissented.

* See Hibbs v. Blair, 2 Harris 413, 417.