Q. S. of Berks Co. the March Sessions, 1926, the return of true bills on Friday, March 19, 1926, and Commonwealth v. Gassel, Alias the continuance of his cases to June Hassel Sessions, 1926, because of the absence of an alleged material witness for the Commonwealth. The petition further avers that the petitioner was present at the June Sessions ready for trial, but that again the cases were continued to SepCriminal law-Amendment VI of the tember Sessions because of the absence of the same witness, against the protest Federal Constitution-Art. I, sec. 9, of of the defendant; that at September the Constitution of Pennsylvania Sessions, 1926, the court again granted a continuance because of the absence of Speedy trial-Delay because of absence the witness, again despite defendant's of witness for prosecution-Practice-Protest that the continuance was a denial of his constitutional right to a Nolle prosequi-Testimony of absent speedy trial; and that the cases were not listed for trial at the December Sessions, witness-Act 23 May, 1887, sec. 3, P. L. 1926. The petition prayed that the cases be called for trial and that no further 158. continuance be granted. On the same The sixth amendment of the Constitution day an amended petition containing the of the United States and sec. 9, of Article I, of the Constitution of Pennsylvania, guarantee the defendant in a criminal prosecution a speedy public trial by an impartial jury of the vicinage. A speedy trial is one conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays. It is a denial of the right to a speedy trial for the court to grant an arbitrary continuance, where the accused is ready for and demands trial and may be lawfully tried, or solely because the prosecuting attorney finds himself unprepared with the evidence to con vict because of the disappearance of a material witness if the defendant is not responsible for such disappearance. Where the district attorney is unable to dispose of a prosecution because of the disappearance of a material witness, the rights of the Commonwealth may be preserved by the entry of a nolle prosequi, thus permitting a new prosecution within the period allowed by law. Sec. 3, of the Act 23 May, 1887, P. L. 158, provides for the use of the testimony of an absent witness under certain cirumstances. same prayer was filed in which the only new matter alleged was that the true bills had been secured at the March Sessions, 1926, in the absence of the alleged material witness. On December 15, 1926, the district attorney answered not admitting defendant's presence at the March Sessions, 1926, prepared to meet the accusations contained in the indictment; denying his presence at the June and September Sessions "ready for trial and prepared to meet the accusations"; admitting that he had not asked to have the witness put under bail because he could not legally do so, and that he had not caused the arrest of the witness in the exercise of his discretion and judgment; and averring his willingness to disclose to the court his efforts to secure the attendance of the witness. The district attorney further answering averred that the Petition by defendant for trial or dis-delay had been necessary and unavoidcharge. Robert G. Bushong, H. P. Keiser, Wilson R. Rothermel, H. Robert Mays and Bernard Hoffman, for defendant. David E. Mauger, District Attorney, for the Commonwealth. able in the highest interest of justice and public welfare; that the Commonwealth would be unjustly hampered if required to go to trial at the time; and that the missing witness is an indispensable witness without whose testimony the Com monwealth will be unable to convict. The answer closes with an expression of beStevens, J., February 1, 1927.-On lief that the witness was induced to go December 13, 1926, the first day of the and remain away by the connivance of December Sessions, the defendant filed the defendant, and asks that the petition his petition setting forth his arrest, be dismissed. hearing and binding over in January for! On December 17, 1926, a second amended petition was filed containing all would be in no position to demand what the averments of the previous petitions, his own act was rendering possible. modifying alone the prayer of the petition to ask that the cases be called for trial at the then session of court, which was about to close, or that the defendant be discharged. The right to a speedy trial is a substantive right, esteemed of such great importance as to be embodied in the Constitution of the United States and in the Bill of Rights of our State Constitution. Depositions in support of the petition We can not nor have we any desire to were taken. They are the testimony of abridge it in any way. We are bound by counsel, five attorneys for the defend- the Constitution, and neither the legislaants, the petitioner himself not testifying, ture nor the courts can take away what all to the effect that the defendants were the Constitution guarantees: Stewart v. ready, prepared for trial, and either in Com'th, 117 Pa. 378. No court has any court or in counsel's office or available discretionary power to deny an accused at all times by telephone. There is no person a right so important. This contestimony that this defendant ever re- stitutional provision, adopted from the quested a continuance. His counsel did old common law, is intended to prevent not object when told that the cases would the oppression of the citizen by holding not be called at the first session of court. criminal prosecutions over him for an Art. I, sec. 9, of the Constitution of indefinite period, and to prevent delays Pennsylvania, provides that in all crim- in the administration of justice, by iminal prosecutions the accused has a right posing on the judicial tribunals an oblito be heard by himself and his counsel, gation to proceed with reasonable disto demand the nature and cause of the patch in the trial of criminal prosecuaccusation against him, to meet the wit- tions: 8 R. C. L. p. 70, sec. 24. nesses face to face, to have compulsory A speedy trial is one conducted acprocess for obtaining witnesses in his cording to fixed rules, regulations and favor, and, in prosecutions by indictment proceedings of law, free from vexatious, or information, a speedy public trial by capricious and oppressive delays. One an impartial jury of the vicinage. The can not demand a trial immediately upon Constitution of the United States, arrest, but he must wait until a regular Amend. VI, provides that in all criminal term of the court, until an indictment is prosecutions the accused shall enjoy the found, and until the prosecution has had right to a speedy and public trial, by an a reasonable time to prepare for the impartial jury of the state and district trial. The law does not exact impossiwherein the crime shall have been com- bilities, or extraordinary efforts, dilimitted. gence or exertion from the courts or the The defendant here invokes the pro- representatives of the state; nor does it tection of his constitutional right to a contemplate that the right of speedy trial speedy trial. He is met with the answer which is guaranteed to a prisoner shall by the prosecuting officer that he is un-operate to deprive the state of a reasonable to proceed with the trial because of able opportunity of fairly prosecuting the absence of a witness without whose criminals: In re Begerow, 85 A. S. R. testimony he can not convict. There is 178, 188. The purpose of the constituno charge that the officer has not made tional provision is at least in part the every reasonable effort to secure the at- same as stated by Justice Todd, cited in tendance of the witness, although that Clark v. Com'th, 29 Pa. 129, 135, as the fact is not admitted, nor is there any purpose of the Habeas Corpus Act of charge that the defendant is responsible Feb. 18, 1875, "to provide against the for the absence of the witness, although abuse of procrastinated trial, to provide that fact is not admitted, nor is there an not only against the malice of the proseexpression of belief on the part of the cutor, and against his negligence, against officer, but so far as appears there is all his delays with cause or without nothing to support that belief beyond sus- cause, against every possible act or want picion. Of course, if that were actually of action of the prosecutor; but not to the case, there would be no hesitancy in shield a prisoner in any case from the further continuing the cases: Respublica consequences of any delay made necesv. Arnold, 3 Y. 263, and the defendant sary by the law itself." The Constitu tion intended to prevent wilful and op- While it is, of course, usually more depressive delay: Com. v. Jailer, 7 W. 366, sirable that a witness appear and testify but a delay made necessary by the usual in person before the jury trying the case, and ordinary procedure provided by law yet there are circumstances under which in criminal cases is of course permissible. his testimony may be used in his abIt has been held to be a denial of the sence: Act of May 23, 1887, sec. 3, P. L. right to a speedy trial for the court to 158. grant an arbitrary continuance, where the accused is ready for and demands trial and may be lawfully tried, or solely because the prosecuting attorney finds himself unprepared with the evidence to convict, when his condition is not the result granted. of improper practice on the part of the prisoiner or of some one acting with or for him: 8 R. C. L. p. 72, sec. 26. The bills were found on the last day of the first week of March Sessions, and the cases were continued because of the And now, to wit, February 1, 1927, unless the cases against the defandant are disposed of at the March Sessions, 1927, the prayer of the petition for the discharge of the defendant will be C. P. of Allegheny Co. absence of the witness, without objection In Re Charter For Triumphant by the defendant because it was felt that sure. So far as appears from anything unexplained, and mere suspicion can not serve as proof that the defendant is responsible for the absence of the witness. Nor has the defendant been responsible for any of the continuances. This defendant in the law has the same right to a speedy trial that is guaranteed to every person accused of a crime, no matter who or what he is or may be. Those rights we have no right to deny him. The rights of the Commonwealth may also be preserved by appropriate action on the part of the prosecuting officer by the entry of a nolle prosequi, the entry of which will permit a new prosecution within the period allowed by law. Lodge Corporations Charter application Dual purpose-Real estate-First and second class. An application for a charter for a corporapurpose was "the purchasing or acquiring tion of the first class was refused, where the real estate and maintaining suitable buildings and halls thereon to be used for public and private purposes." This purpose was twofold and constituted a corporation of the second class. Charter application. Refused. Benjamin Jacobson, for petitioner. The application for a charter of TriSwearingen, J., October 19, 1926.umphant Lodge Hall Association states the following: "Second. The purpose for which the corporation is formed is the purchasing or acquiring real estate and maintaining suitable buildings and halls thereon to be used for public and private purposes." Clearly the purpose stated in this application is two-fold. The purchase or acquisition of real estate is one thingnot, however, authorized in the statutes, providing for charters of corporations of the first class. The maintenance of suitable buildings and halls thereon is an entirely different thing. Considering both purposes together, they import the en tering of the business of buying land and davit of defense, in which the averments constructing buildings and halls thereon of the statement were denied in corre-which of course is not within the sponding paragraphs of the affidavit of power of the court to approve and grant. defense. The plaintiff still relied upon Such a charter would constitute a cor- the averments of the statement and affiporation of the second class. Conse- davit of defense as sufficient admissions quently we cannot approve this applica- of the facts upon which his claim was tion for charter. Charter refused. founded, and declined to present any evidence, whereupon the court, upon motion of the defendant, granted a compulsory non-suit, which the plaintiff now moves to strike off. The plaintiff has also moved for judgment non obstante veredicto. The question now is, whether the defendant's denial in the ninth paragraph of the affidavit of defense could be considered in connection with the preceding eight paragraphs as an answer to the eight paragraphs of the plaintiff's claim; and, if not, then whether the defendant should not have been permitted to amend the affidavit of defense by denying the averments of the statement by corresponding paragraphs in the amended af Undoubtedly, the better Where the plaintiff in an action in assump-fidavit of defense. sit, in order to make out his case, offers in evidence the first eight paragraphs of the affidavit of defense, each of which contains a general denial, and the general denial in these paragraphs is supplemented by a ninth of the statement are specifically and sufficiently denied, the general denials are not to fusal of plaintiff to proceed with the evidence, a compulsory non-suit is properly paragraph wherein the material averments be regarded as an admission, and on the re entered. Rule to strike off compulsory non-suit and rule for judgment n. o. v. Thomas C. Egan, for plaintiff. pleading would be to deny the averments of the statement, paragraph by paragraph; but where, as here, there is a general and insufficient denial, and then an added paragraph which is supplementary of this general denial and sufficiently meets the material averments of the plaintiff, we would not be warranted in saying that the defendant admits the facts alleged in the statement. As a matter of fact, the averments are denied. The plaintiff might, possibly, have made an attack upon this affidavit of defense as being improper in form; but the substance of a complete deHenry, P. J., 52nd Judicial District, nial is there, and when the defendant filed specially presiding, December 1, 1926.—an amended affidavit, there was an affiAt the trial of this case the plaintiff offered the first eight paragraphs of his statement, together with the corresponding paragraphs of the affidavit of defense, in which there was a simple, general denial, and then rested, claiming that there not having been sufficient denial of the averments of the statement, The material averments of the statethe facts there set forth must be deemed ment having been denied by the affidavit to be admitted. The defendant then di- of defense, as well as by the amended rected the court's attention to paragraph affidavit of defense, it was incumbent 9 of the affidavit of defense, wherein the upon the plaintiff to submit evidence in material averments of the statement support of his claim, and in default of were specifically and sufficiently denied. such evidence the court could only grant The defendant then, further, with the the compulsory non-suit as requested by court's permission filed an amended affi- the defendant. davit of defense which met every requirement of the Practice Act of 1915; and we think the court would have erred had the amendment been refused in a case like this, where there is a substantial denial, but lacking only in not being in proper form. C. P. of Bartholomew v. Niewig Delaware Co. see to the right eastwardly toward Media about 300 feet to the brow of a little hill observing nothing approaching, he put his machine in second gear, crossed the pike, and had almost passed its northern line when he was struck at his right Automobiles-Collision at road inter- rear with such force as to throw the back end of his machine to the left, oversection-Negligence - Right of way-turn it on its left side and across the Charge-Error in transcript of charge pants therein. Plaintiff testified that be corrected. It is not prejudicial to the defendant for problem to find the truth of this matter from all the evidence. If the version given by the witnesses for the plaintiff is correct, you would be warranted in finding a verdict in the court to say in the charge, "It is your his favor. If the version of the defendant and his witnesses is correct, your verdict should be for the defendant." Where two automobiles approach a road crossing by different routes, the machine coming from the right is entitled to the right of way. This, however, is subject to the qualification that if the one coming from the left has made substantial progress across the crossing, he must be given consideration by the one on his right. In actions growing out of the collision of automobiles at road intersections, the negligence to be considered is the want of rea sonable care by the various parties under all the circumstances of the case. Where the official stenographer's unapproved typewritten report of the charge contained an error of one word which gave a sentence a materially different meaning, which was subsequent y corrected, and the reet word, and the whole charge indicates his recollection to be correct, a motion for a new trial based upon the transcript of the trial judge recollected the use of the cor charge as it read before the correction, was overuled. Motion for new trial in George F. Bartholomew v. M. W. Niewig. No. 1223. December Term, 1925, in the Court of Common Pleas of Delaware Co., Pa. Motion refused. J. Barton Weeks, for plaintiff. Middletown road, with the four occu fore the collision he had not seen the thing which hit him; but that immediately thereafter the defendant acknowledged that it was his fault, giving as excuse that the sun was in his eyes and he did not see the plaintiff. Testimony of defendant and in his behalf flatly contradicted the evidence of the plaintiff; and was to the effect that the accident was wholly the fault of plaintiff. A clear issue of fact was presented which required submission to the jury, who found for the plaintiff. In support of the motion for new trial defendant's counsel contends that the court practically gave binding instructions to the jury to find for the plaintiff, and refers to part of the charge, as follows: "It is your problem to find the truth of this matter from all of the evidence. If the version given by the witnesses for the plaintiff is correct, you would be warranted in finding a verdict in his favor. If the version of the defendant and his witnesses is correct, your verdict should be for the defendant." We fail to understand the objection to this part of the charge. court was misleading regarding the legal It is urged also that the charge of the rules where persons approach road crossings simultaneously. This complaint regards a verbal request of de Geary & Rankin, for defendant and fendant's counsel at the end of the gen motion. eral charge. What occurred was accurately transcribed by the stenographer with the exception of one word, which was corrected before the transcript of the stenographic notes was approved. With the correction of that one word, the colloquy was as follows: Niles, P. J., of the Nineteenth Judicial District, specially presiding; May 17th, 1927. The testimony of the plaintiff, corroborated by other evidence, was to the effect that when he came near the southern line of the Baltimore pike, be- "Mr. Rankin. Can I suggest to the fore attempting to cross it on the Mid- court there has been no reference in the dletown road, he nearly stopped and charge as to the rights and the duties of looked in both directions and saw the two machines as they approached the nothing coming from the right; he could said intersection?" |