Commonwealth v. Newcomet , 18 Pa. Super. 508 ( 1901 )

Opinion by

Rice, P. J.,

Upon an information charging that the relator had violated the provision of the 1st section of the Act of April 22,1794, 3 Sm. L. 177, known as the Sunday law, and thereby had forfeited the sum of $4.00, a warrant of arrest was issued by an alderman on October 14, 1901. On October 18, 1901, the alderman committed the relator to the county prison. The commitment, after reciting the fact that the relator stood charged before the alderman, “ with having, within the said county, violated Sunday laws of 1794 by performing worldly employment,” concluded as follows: “And you the said keeper are hereby required to receive the said William Gottschall into your custody in the said prison and him there safely to keep until he shall find sufficient surety for his appearance at the next court of quarter sessions to be held for the said county, to answer the above charge; or be otherwise delivered by due course of law.” On the same day the court awarded a writ of habeas corpus returnable on the following day, and at the same time made an order as follows: “ The relator to be released from imprisonment upon entry, in the office of the prothonotary of Berks county, of security in $200 for his appearance at the hearing above appointed and his submission to such orders as may thereupon be made.” The relator gave security by bond filed in the prothonotary’s office and was released from custody. On the following day, after hearing and argument, the court discharged him and directed the prosecutor to pay the costs. From this order the warden of the prison took this appeal.

It was held in Doyle v. Commonwealth, 107 Pa. 20, that an order, in habeas corpus, discharging the relator from the custody of a deputy sheriff, is a final order or decree which will entitle such officer to remove the proceedings to the Supreme Court for reveiw upon certiorari. Mr. Justice Stekrett, after showing that the proceedings were reviewable, said: We are also of opinion that the officer from whose custody the relator was improperly discharged is the proper person to sue out the writ. This point was in effect ruled in Holsey v. Trevillo, 6 Watts, 402.” It is worthy of note, that the case of Holsey v. Trevillo did not come before the Supreme Court by writ of error or certiorari but by habeas corpus issued by the Supreme Court at the instance of special bail, who claimed the right to the custody of the person taken from him. Granting, however, that an appeal will lie from an order in habeas corpus discharging the relator, where the hearing upon the habeas corpus did not involve the determination of questions of fact arising upon oral testimony, as in proceedings relating to the custody of children, but only the regularity and legality of the commitment, we are not convinced that the court committed error in discharging the relator. The legislative authority for committing him upon the charge made in the information until he should give security for his appearance to answer the charge in the quarter sessions has not been shown. In this view of the case it is not necessary to discuss the question whether the act charged was in violation of the act of 1794 properly construed.

But aside from the question of the regularity and the legality of the commitment, had the keeper of the prison a right to appeal from the order ? Is he a party aggrieved ? We have called attention to the fact that the relator had been released from custody upon his giving bail to appear at the hearing and to submit to such order as the court might make. The warden in his return carefully and very properly disclaimed having the custody of the relator as follows: “ In obedience to the order of the court of October 18,1901, served upon me, I released the relator from chstody.” Certainly he has no standing to complain that the court did not make an order recommitting the relator to his custody, and as he was not actually or constructively in his custody at the time the final order was made, we are of opinion that he is not a party aggrieved and not entitled to an appeal.

The second reason assigned in support of the motion to quash the appeal is sustained, and the appeal is quashed at the costs of the appellant.