Appendix — Giaccio v. Pennsylvania

"SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 47

JAY GIACCIO, APPELLANT,

vs.

PENNSYLVANIA.

APPEAL FROM THE SUPREME COURT OF THE COMMONWEALTH OF

PENNSYLVANIA, EASTERN DISTRICT

INDEX

Original Print

Record from the Superior Court of Pennsylvania,

Philadelphia District

Appeal and affidavit 1 1

Docket entries 3 2

Proceedings in the Supreme Court of Peausylvania

for the Eastern District . 14 4

Supplemental record for appellants eunsietis ig of

portions of the record from the Superior Court of

Pennsylvania 14 5

Opinion, Woodside, J. 14 5

Dissenting opinion, Flood, J. —. 28 17

Order 35 23

Petition under Rule 69 for allowance of an appeal

to the Supreme Court of Pennsylvania in accord-

ance with 17 Pur. Stat. Ann. Sec. 190 _.._.___ 36 23

amaer allowing appeal =... 3 43 28

- Record for appellee consisting of portions ‘of the

' record from the Court of Quarter Sessions of

Chester County, Pennsylvania Ri 67 29

Recorp Press, Printers, NEw York, N. Y., Juty 27, 1965

INDEX

Record for appellee consisting of portions of the

record from the Court of Quarter Sessions of

Chester County, Pennsylvania—Continued

Relevant docket entries 20.

Portion of charge of the court dealing with costs,

Gawthrop, P.J.

Defendant’s motion to be relieved from payment

of cost

Petition for rehearing

Opinion, Gawthrop, P.J.

Order

Appeal and affidavit

Docket entries

Opinion, Roberts, J. and order 0...

Dissenting opinion, Cohen, J.

Notice of appeal to the Supreme Court of the

_ United States

Triple certificate (omitted in printing) —

Petition under United States Supreme Court Rule

13 for extension of time, etc. and order granting

same

Order noting probable jurisdiction

Original Print

67 29

69 30

73 33

74 34

76 35

85 42

86 43

88 44

89 47

101 56

103 57

109 59

112 60

ape

[fol. 1] [File endorsement omitted]

[fol. 2]

IN THE SUPERIOR COURT OF PENNSYLVANIA

PHILADELPHIA DISTRICT

Court of Quarter Sessions of the County of Chester

September Sessions, 1961—No. 225-296

CoMMONWEALTH OF PENNSYLVANIA, Appellant,

vs.

Jay Gtaccio.

No. 123—October Term, 1963

APPEAL AND AFFipavit—Filed February 26, 1963

Enter Appeal on behalf of the Commonwealth of Penn-

sylvania from the judgment of the Court of Quarter Sessions

of the County of Chester.

/8/ Samvue. J. HaLpren

Samuel J. Halpren, Dist. Atty., D. A. Office, Court

House Annex, West Chester, Attorney for Appel-

lant.

(Please print name and address under signature)

Send All Notices To: (Attorney for Appellant)

Samuel J. Halpren, Esq. (Address) D. A. Office,

Court House Annex, West Chester, Pa.

To Prothonotary,

Superior Court—Philadelphia District

County of Phila., ss:

Samuel J. Halpren being duly sworn saith that said Ap-

peal is not taken for the purpose of delay, but because ap-

2

pellant believes he has suffered injustice by the

from which he appeal

Samuel J. Halpren

Sworn to and subscribed this 26th day of Feb. A. D. 1963.

George W. Dunn, Jr., Dep. Pro.

No. 123 October Term, 1963

Returnable 1st Monday of April, 1963

List for June 10, 1963 at Phila.

[fol. 3]

In THE SuPeERion Court oF PENNSYLVANIA

123 October Term, 1963

Docket ENTRIES

CoMMONWEALTH OF PENNSYLVANIA, Appellant

v.

Jay Gtaccio

CRIMINAL CASE

$12.00

For Appellant:

* Samuel J. Halpren

Dist. Atty.

’ Dist. Atty’s Office

Court House Annex

West Chester, Pa.

* John S. Halsted,

Asst. Dist. Atty.

14N. High Street

West Chester, Pa.

3

For Appellee:

* James C. N. Paul

* Peter Hearn

123 S. Broad Street

Phila. 9, Pa.

Appeal from the Judgment of the

Court of Quarter Sessions, of the

County or Cuester, at No. 225-

226 September Sessions, 1961.

February 26, 1963. Appeal and Affidavit filed and Writ

exit, returnable the First Monday

of April, 1963, listed for argument

at the session commencing June 10,

1963.

March 5, 1963. Record filed.

March 8, 1963. Notice of Appeal filed.

May 23, 1963. Appearance of John S. Halsted,

Assistant District Attorney, for

Appellant, filed.

May 23, 1963. Petition of Appellant for Continu-

ance to the September, 1963 Ses- _

sion, at Philadelphia, with Joinder,~

filed.

ORDER

Anp Now, May 24, 1963, upon

consideration of the within peti-

tion for continuance of argument

of appeal No. 123, October Term,

1963, argument of said appea! is

continued to the Philadelphia ses- ;

sion beginning the second Monday

of September, 1963.

By the Court,

Chester H. Rhodes,

P.J.

4

May 24, 1963

September 10, 1963

December 12, 1963

December 24, 1963

December 20, 1963

February 3, 1964

February 5, 1964.

February 7, 1964

February 7, 1964.

[fol. 14]

Continued to the September 1963

Session at Philadelphia

Argued (7)

DECISION

Order Reversed,

Sentence Reinstated.

Woodside, J.

Flood, J.

Files a Dissenting Opinion.

REMITTED

Petition for Allowance of Appeal

filed in Supreme Court at No. 240

Allocatur Docket No. 4. (Received

after Remittitur sent out)

Petition Allowed and Appeal

Granted to No. 218 January Term,

1964

SUPPLEMENTAL WRIT OF CERTIORARI

Exrr.

Record certified to Supreme Court

to No. 218 January Term, 1964

Record filed.

No. 218—January Term, 1964

In THE SupREME CouRT OF PENNSYLVANIA

For THE Eastern District

CoMMONWEALTH OF PENNSYLVANIA

Vv.

Jay Giaccio, Appellant.

Supplemental Record for Appellant

Opinion oF THE Superior CourT or PENNSYLVANIA—

Filed December 12, 1963

Opinion by Woopsinz, J.

This is an appeal by the Commonwealth from an order of

the Court of Quarter Sessions of Chester County vacat-

ing a sentence to pay the costs of a criminal prosecution.

The sentence had been imposed upon a defendant after a

jury had found him not guilty of the misdemeanor with

which he was charged, but had directed him to pay the costs

of prosecution.

The defendant was charged with wantonly pointing and

discharging a firearm in violation of The Penal Code of

June 24, 1939, P. L. 872, $716, 18 P. §, § 4716.

The legislature has provided for the disposition of costs

in misdemeanor cases by providing, inter alia, that“...

in all cases of acquittals by the petit jury on indictments

for the offenses aforesaid, the jury trying the same shall

determine, by their verdict, whether the county, or the

prosecutor, or the defendant shall pay the costs, or whether

the same shall be apportioned between the prosecutor and

the defendant, and in what proportions; ...” Act of

March 31, 1860, P. L. 427, 445, § 62, 19 P. S. § 1222. This

was a reenactment of a substantially similar provision con-

tained in the Act of December 7, 1804, 4 Smiti’s Laws 204,

which was a temporary act, “continued and made perpetual”

[fol. 15] by an act passed March 29, 1809, 5 Smith’s Laws

48. Thus, the statutory law of this Commonwealth has

permitted the imposition of costs upon acquitted defendants

for over a century and a half.

The court below found that the above provision of the Act

of 1860 permitting the imposition of costs upon an acquitted

defendant was unconstitutional for a variety of reasons.

The court in its opinion suggested that the statutory provi-

sion is unconstitutionally vague; that it is an unconstitu-

tional delegation of legislative power; that it violates the

Coe nn

doctrine of fundamental fairness; that it affords no hearing;

that it is a denial of the equal protection of the law; that

it does not require proof beyond a reasonable doubt; that

it provides for an unreasonable classification; and that it

is an instrument of oppressive cruelty. To our knowledge,

no court has ever found a Pennsylvania statute in such fla-

grant violation of the Constitution. If the statute were so

flagrantly unconstitutional, it would indeed be a sad com-

mentary upon the scores of appellate court judges who have

examined the provision and the hundreds of trial judges

who have applied it without seeing in it any of the infirmi-

ties conceived by the court below.

The validity of a statute imposing costs upon an acquitted

defendant was before the Supreme Court in Commonwealth

v. Tilghman, 4 8. & R. 127 (1818), where Mr. Justice Gibson

prophesied that the provision in the Act’ of 1804 would

“prove highly beneficial” even though it, “at first view, may

appear unjust.” One hundred thirteen years later Judge

Kelier, speaking for this Court, said of the provision im-

posing costs upon acquitted defendants, “However anoma-

lous the course may appear to jurisdictions unfamiliar with

our procedure, it is the law of this Commonwealth and it

{fol. 16] works substantial justice.” Commonwealth v.

Cohen, 102 Pa. Superior Ct. 397, 401, 157 A. 32 (1931).?

Between these two decisions the statutory provision here

questioned was examined by the appeliate courts, and its

use approved many times: Harger v. Commissicners of

Washington Co., 12 Pa. 251 (1849); Baldwin v. Common-

wealth, 26 Pa. 171 (1856) ; Commonwealth v. Keenan, 67 Pa.

203, 207, 208 (1871); Linn v. Commonwealth, 96 Pa. 285

(1881). In Commonwealth v. Tremeloni, 93 Pa, Superior

Ct. 432 (1927) this Court reversed the court below which

had set aside the costs imposed upon a defendant by a

jury.

In addition to the above cases which affirmed the imposi-

tion of costs upon acquitted defendants, other appellate

1Few students of Pennsylvania courts would fail to include

Chief Justice Gibson and President Judge Keller among the

greatest half dozen appellate court judges of this Commonwealth.

7

court cases have recognized the legality of the provision.

For examples see, County of Wayne v. Commonwealth, 26

Pa. 154 (1856) ; Commonwealth v. Kocher, 23 Pa. Superior

Ct. 65 (1903); Berks County v. Pile, 18 Pa. 493 (1852).

The provision here questioned was examined and applied

in scores of lower court cases, including Commonwealth v.

King, —— D. & C. 2d ——,, decided this year.’

Our Supreme Court has passed upon the constitutionality

of the provision of the Act of 1860 imposing costs upon an

acquitted defendant. In Wright v. Commonwealth, 77 Pa.

470 (1875)* the appellant, who had been acquitted of a mis-

demeanor but sentenced to pay the costs, contended that § 62

[fol. 17] of the Act of March 31, 1860, P. L. 427, 445, supra,

was unconstitutional. The Supreme Court rejected the con-

tention and affirmed the sentence imposing the costs upon

the defendant. In the argument before us it was suggested

that cases decided prior to the 14th Amendment to the

Federal Constitution and prior to the adoption of our Con-

stitution of 1874 are of little authority in presently con-

sidering the constitutionality of the statutory provision here

being attacked. The argument is not pertinent for our Su-

preme Court has upheld the constitutionality of the ques-

tioned statutory provision after the adoption of Pennsyl-

vania’s present constitution and after the adoption of the

14th Amendment to the Federal Constitution.

The Supreme Court has sustained the validity of the Act

of 1804 and the Act of 1860. When the validity of a stat-

ute is attacked and a decision rendered sustaining it, there

is a presumption that all existing reasons for declaring

the act unconstitutional were considered and deemed in-

*The opinion in this case was written by President Judge J.

Frank Graff, one of the rost revered trial judges of this Common-

wealth with over 39 years judicial experience, specially presiding

in Alleghany County and sitting with two other able and experi-

enced trial judges, Judges Samuel Weiss and Lloyd Weaver. The

defendant’s brief on the question of costs filed in that case ap-

pears to be identical with the defendant’s brief filed with us.

* No reference to this case is made in the opinion of the court

below or in the briefs of the parties.

8

sufficient. Keator v. Lackawanna County, 292 Pa. 269, 272,

141 A. 37 (1928); Dole v. Philadelphia, 337 Pa. 375, 379,

11 A. 2d 163 (1940); Nester Appeal, 187 Pa. Superior Ct.

313, 319, 144 A. 2d 623 (1958).

As the Supreme Court has twice passed upon the con-

stitutionality of the very provision here questioned, the

court below and this Court have no standing to overrule

that Court’s holding. Ordinarily, we would rest our decision

on Wright v. Commonwealth, supra, without further com-

ment. However, the appellee has suggested that “no one has

heretofore challenged the constitutionality under present

day constitutional concepts of Pa. Stat. Ann. tit. 19 § 1222.”

Of course, the constitutionality of the provision has been

challenged and its validity upheld by the Supreme Court of

Pennsylvania, so we must assume that counsel is asking us

[{fol. 18] to apply to the statute a new test based upon “pres-

ent day constitutional concepts,” which, he says, “accord

a fuller measure of protection to accused persons.” It is

not clear to what extent this Court is being asked to ignore

existing decisions of our Commonwealth’s highest court,

but it is clear that counsel is suggesting that the legisla-

ture has less power to deal with matters of this nature today

than it did when “old” concepts of the constitution existed.

But, consider what one of the most distinguished proponents

of the “present-day concept” said this year on the question

of declaring unconstitutional a state act which made it a

misdemeanor to carry on a business theretofore considered

to be legal. Mr. Justice Black, in speaking for at least eight

members of the Supreme Court of the United States, said

that that Court has “returned to the original constitutional

proposition that courts do not substitute their social and

economic beliefs for the judgment of legislative bodies, who

are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726,

730, 83 S. Ct. 1028 (1963). An examination of 7 P. L. E. Con-

stitutional Law $17 and cases there cited will demonstrate

how far our own courts have gone in applying this rule.

The defendant in this case has a heavy burden to set

aside the verdict of his peers based upon a statute of the

legislature. As stated by Mr. Justice Cohen in the case of

9

Realty Corp. v. Philadelphia, 390 Pa. 197, 205, 134 A. 2d

878 (1957), “No act or portion thereof shculd be declared

unconstitutional unless ‘it violates the Constitution clearly,

palpably, plainly; and in such manner as to leave no doubt

or hesitation in our minds.’ Kelley v. Baldwin, 319 Pa. 53,

54, 179 A. 736 (1935) ; Soblosky v. Messner, 372 Pa, 47, 59,

92 A. 2d 411 (1952).” “The burden of proof is upon the cne

who claims that the statute is unconstitutional.” Common-

(fol. 19] wealth v. Bristow, 185 Pa. Superior Ct. 448, 458,

138 A. 2d 156 (1958).

We know of no Pennsylvania statute whose validity has

been attacked after so many years of constant application.

Since the Act of 1804, two new constitutions have been

adopted and scores of amendments have been made to the

present constitution.‘ There have been over a hundred

regular sessions of the legislature and a score of special

sessions since the Act of 1804 was enacted. Hundreds of

judges have examined and passed upon the statutory provi-

sion here questioned. As stated by Mr. Justice Agnew, and

repeated by the Supreme Court in Booth & Flinn, Ltd. v.

Miller, 237 Pa. 297, 306, 85 A. 457 (1912) concerning a

somewhat similar situation, “The continued exercise of the

power ... cannot be accounted for except on the ground

that all men, learned and unlearned, believed it to be a legit-

imate exercise of the legislative power. This belief is fur-

ther strengthened by the fact that no judicial decision has

been made against it.”

A construction of the constitution adopted and acted upon

by the legislature and acquiesced in by the people for many

years is entitled to great weight. Summit Hill Borough, 240

* The appellee argues that we should declare the questioned pro-

vision unconstitutional because the constitutions of a few other

states prohibit the practice. If the statute were unconstitutional

in the manner appellee suggests these states would not need a

specific constitutional prohibition. The fact that our constitution,

twice rewritten and frequently amended, does not prohibit the

imposition of costs is a strong argument that the people of this

Commonwealth have joined with their legislature and their courts

im approving the practice.

nae —

10

Pa. 396, 399, 87 A. 857 (1913); 7 P. L. E. Constitutional

Law § 12. It is true that mere passage of time does not give

validity to an unchallenged statute, but the fact that a

statute has been in effect for many years, even when un-

challenged, is a strong argument in favor of validity. James

v. Public Service Commission, 116 Pa. Superior Ct. 577,

[{fol. 20] 177 A. 343 (1935) 7 P. L. E. Constitutional Law § 20.

The provision questioned here has not only been in exist-

ence since the earliest days of our Commonwealth but it

has been twice challenged and its validity sustained.

The questioned provision of the Act of 1860 has been

equated in the opinion of the court below and throughout

the brief of the appellee with the practice which this Court

condemned in Commonwealth v. Franklin, 172 Pa. Superior

Ct. 152, 92 A. 2d 272 (1952). Prior to the decision in the

Franklin case, which held the practice unconstitutional,

certain judges, almost exclusively in Philadelphia, fre-

quently held a defendant in bail to keep the peace after he

had been acquitted by a jury. Few of the defendants thus

held could raise the bail, and as a result they spent months

and often years in jail. From 1939 to 1949, 478 acquitted

defendants in Philadelphia served a total of over 600 years

in prison, an average of well over a year each. The prac-

tice was unknown to most of the areas of the Commonwealth,

and generally shocked “up state” judges who encountered

it in Philadelphia.

There is no comparison between the statutory provision

here questioned and the practice condemned in the Franklin

case. Here the General Assembly of Pennsylvania thrice

authorized the imposition of costs by a jury upon defendants

found not guilty; the practice condemned in the Franklin

case was not based upon an act of our legislature, but was

a procedure adopted by the courts from an English Statute,

34 Edw. III ¢ 1, enacted in 1360. Here a jury composed of

the defendant’s peers directed the imposition of the costs;

the practice condemned in the Franklin case flouted the

findings made by a jury of the defendant’s peers. Here

the purpose and usual effect of the procedure is limited

to the recovery of expenses for which the defendant’s con-

11

(fol. 21] duct was at least partially responsible; the prac-

tice in the Franklin case and its practical effect was to com-

mit acquitted defendants to jail for long periods of time.

Here the appellate courts of this Commonwealth considered

and approved the practice in numerous cases; the Franklin

case was the first, at least since the 14th Amendment to the

Federal Constitution, to examine the constitutionality of a

practice which had never been specifically sanctioned by

our legislature.

Counsel for the appellee with light regard for the legis-

lature and the courts suggests that the words “or the defen-

dant” were inserted in the Act of 1804 “either by mistake

or without clear recognition of their ramifications” ;> that

in 1860 the legislature inserted the provision “without con-

sideration of its merits”;* that Mr. Justice Gibson was not

familiar with the common law of Pennsylvania on imposi-

tion of costs when he wrote about it in 1818, that he misled

subsequent judges and textbook writers, and that the im-

position of costs upon acquitted defendants was unknown

except in Pennsylvania.’ As we view this case, the common

5 He ignores that the identical provision was examined by the

legislature of 1809 which decided that it should be continued and

made perpetual.

°In 1949 a legislative Committee on Penal Laws and Criminal

Procedure of the Joint State Government Commission, after care-

ful consideration of the then existing laws governing procedures in

criminal matters, retained the provision here under review in its

proposed recodification. See Senate Bill 988, 1949 Session, § 1601.

Serving on that committee as legislators were five present members

of the judiciary: Judges Lord, Brown, Rahauser, Readinger, and

Woodring.

* On the early law of this Commonwealth on this point see Com-

monwealth v. Tilghman, supra, 4S. & R. 127 (1818) ; Berks County

v. Pile, supra, 18 Pa. 493, 496 (1852) ; Long v. Lancaster County,

16 Pa. Superior Ct. 413, 417 (1901) ; Commonwealth v. Kocher,

supra, 23 Pa. Superior Ct. 65, 67, 68 (1903) ; Kessler on Criminal

Procedure in Pennsylvania, Vol. 1, page 235, and cases there cited.

On whether this provision has been unique to Pennsylvania see:

State v. Butcher, 1 Del. Cases 334 (1793) ; State v. Miller, 1 Del.

Cases 512 (1814) ; Delaware Constitution of 1792, Art. VIII, § 8;

Keither v. State, 27 Ga. 483 (1859) ; State v. Hargate, 1 N. C. 196

(1800).

12

law relating to costs prior to 1804 is no longer important.

{fol. 22] If other states have different ideas on the dis-

position of costs in misdemeanor cases, that is an argument

to be addressed to the legislature and not the courts. The

argument that the legislatures of 1804, 1809 and 1860 did

not know what they were doing deserves no reply.

We cannot follow the defendant’s argument that the ques-

tioned statutory provision constitutes an unlawful delega-

tion of legislative power. It is obvious that in authoriz-

ing the disposition of costs, the legislature has not delegated

the power to the jury to make a law, but only the power to

determine some fact or state of things upon which the law

makes its action depend. This it may do. Locke’s Appeal, 72

Pa. 491, 498 (1873) ; Nester Appeal, supra, 187 Pa. Superior

Ct. 313, 316, 144 A. 2d 623 (1958). It is not an exercise of a

legislative power by the judiciary for it, through a jury,

to dispose of the costs in accordance with a statutory provi-

sion, but it would be an unconstitutional assumption of a

legislative power by the judiciary were the courts to ig-

nore the statute and dispose of costs contrary to its provi-

sions.

The defendant contends that it is an unconstitutional

classification to separate the crimes into summary convic-

tions, misdemeanors and felonies for the purpose of deter-

mining in which cases the costs may be placed upon defen-

dants and in which cases they may not be placed upon them.

The separation of crimes into these classes and the applica-

tion of different rules to the different classes has been so

uniformly zecognized and so firmly established in our law

that the validity of legislation dealing with these classes

separately need no longer be examined. Although the classi-

fication of particular crimes by the legislature may not

always appear consistent, the separation of crimes into

these classes and the application of different rules to each

[fol. 23] class is a matter for the legislature and its exer-

cise of that power in separating crimes for the payment of

costs is not a violation of the constitution. A classification

may be discriminatory and not unconstitutional if any state

of facts can be conceived that would sustain it. Jones &

13

Laughlin Tax Assessment Case, 405 Pa. 421, 436, 175 A.

2d 856 (1961).

Contrary to the defendant’s contention, the statutory pro-

vision here questioned meets the requirements of the due

process clause of Art. 1, § 9 of the Constitution of this Com-

monwealth and the 14th Amendment to the Constitution

of the United States. The defendant in a criminal case is

presumed, as all of us are, to know the law. Thus, when

brought to trial on an indictment charging a misdemeanor,

the defendant has notice that the jury may impose the costs

of prosecution upon him even if he is acquitted. He has an

opportunity to be heard on the question of costs. The

decision of the jury is based upon evidence heard by it.

The defendant has « right to question the charge of the

court on the question of costs. He has the right to sub-

sequently challenge the amount of the costs taxed, and to

challenge any arbitrary verdict by the jury in imposing

the costs upon him.

The defendant assumes that the imposition of costs un-

der the Act of 1860, supra, is the infliction of punishment

upon a person for undefined conduct. The imposition of

costs on either the prosecutor or defendant is not punish-

ment for the commission of a crime. Imposition of costs

does not form a part of the penalty of even guilty defen-

dants. Commonwealth v. Soudani, 193 Pa. Superior Ct. 353,

356, 165 A. 2d 709 (1960) ; Commonwealth v. Cauffiel, 97 Pa.

Superior Ct. 202, 205 ( 1929) ; Commonwealth v. Moore, 172

Pa. Superior Ct. 27, 29, 92 A. 2d 238 (1952). It is true that

4 person sentenced to pay the costs in a criminal case may be

(fol. 24] committed to prison for refusing to pay them. But

if he is unable to pay the costs, he may be exonerated from

paying them by proceeding under the insolvency act. This

procedure is available to him not only after he has been

committed to prison for failure to pay the costs, but also

before he is committed. Thus, an acquitted defendant upon

whom costs have been imposed may be discharged from

paying them without having to undergo any actual im-

prisonment. Kishbaugh’s Petition, 135 Pa. 468, 19 A. 1063

(1890) ; In re: Collection of Fines, Cost, ete. 76 Pa. D. & C.

456, 469, 471 (1950).

baited

14

The costs of a case do not always fall upon the unsuccess-

ful party. There are situations in divorce cases, support

cases, equity cases and orphans’ court cases where costs,

in whole or in part, may be imposed upon the party suc-

cessful in the action.

There are many crimes made punishable by the legis-

lature which have never been defined by it. The legislature

looks to the common law, i.e., court decisions, to define

many serious offenses for which it provides punishment.

The Act of 1860, supra, is as specific as any statute can be

concerning the right of the jury to dispose of costs in a

misdemeanor case, the manner in which the jury may divide

the costs and the parties upon whom it may impose the

costs. Of course, costs of a trial cannot be imposed upon a

defendant for conduct not related to the prosecution, nor

for conduct concerning which there is no relevant evidence

before the jury. The imposition of costs other than upon

the county must be based upon conduct by either the prose-

eutor or the defendant or both which is related to the case.

It is not necessary, indeed it would be impossible, for the

legislature to detail all the circumstances and conditions

under which the jury should or should not impose the costs

{fol. 25] upon the parties. The legislature need not set

forth with the same particularity the circumstances under

which a jury, under the control of the court, may exercise

the power given to it, as it must set forth the area within

which a governmental board or commission must act. Nes-

ter Appeal, supra, 187 Pa. Superior Ct. 313, 320, 144 A. 2d

623 (1958).

The statute itself does not produce unconstitutional un-

fairness. Should the verdict in a particular case be arbi-

trary or should there be a gross abuse of discretion in the

imposition of the costs upon either the prosecutor or the

defendant, the court has the power to relieve the party from

such arbitrary or unjust verdict. Commonwealth v. Cohen,

supra, 102 Pa. Superior Ct. 397, 401, 157 A. 32 (1931) ; Dunn

Appeal, 191 Pa. Superior Ct. 346, 349, 156 A. 2d 349 (1959).

The public is frequently put to the cost of trying a defen-

dant because of reprehensible conduct by him. When the

15

jury is warranted by the evidence and authorized by the

legislature to collect these costs from such defendants there

is no reason why the will of the legislature and the jury

should be set aside when it is not arbitrary or unwarranted

under the evidence.

Those who think it is inconsistent and basically unfair to

place the costs upon acquitted defendants insist upon cata-

loguing all conduct as either wholly right or wholly wrong.

But most human conduct does not fit into these absolutes.

Any effort to show life in black and white, without gray,

fails to accurately portray the truth. J udges, jurors, and

legislators for over a century and a half have recognized

the “substantial justice” of this provision for the simple

reason that in practice it produces results that are fair and

jst.

There are endless situations in which the jury might find

that the defendant’s improper conduct was responsible for

(fol. 26] the prosecution even though he was not guilty of

the crime charged. It is not unjust for a jury to impose

costs upon a defendant where the defendant may have

clearly committed the offense charged but was able to raise

a reasonable doubt that the offense was brought within the

statute of limitations; or where the prosecutor and the de-

fendant involved in a fist fight were guilty of conduct not

reprehensible enough for a criminal conviction but suffi-

ciently reprehensible to deserve an equal distribution of

costs; or where the defendant in a “drunken driving” case

drank and then drove while in that twilight zone that exists

at some stage of the drinking; or where defendants charged

with adultery registered at a hotel as husband and wife but

convinced the jury that they had not actually committed

adultery. As stated in Commonwealth v. Franklin, supra,

172 Pa. Superior Ct. 152, 193, 92 A. 2d 272 ( 1952), “A most

important portion of the administration of our system of

criminal justice is the fact that the jury in subtle ways may

temper the rigidity of our criminal code in the application

of the letter of the law to particular cases and may perhaps

thereby mitigate the rigors of the law.”

If the test of constitutionality is to be based solely upon a

concern for the accused, that concern may not be well

16

placed, for there are undoubtedly many cases where a ver-

dict of “not guilty but pay the costs,” would have been a

verdict of guilty had there been no compromise position for

the jury to take. See discussion by Judge Burton R. Laub

of Erie County in his Pennsylvania Trial Guide § 171.

The defendant in this case was charged with violation of

The Penal Code of June 24, 1939, P. L. 872, § 716, 18 P. 8.

§ 4716, supra, which provides that “Whoever playfully or

[{fol. 27] wantonly points or discharges a gun, pistol or other

firearm at any other person, is guilty of a misde-

meanor ...” From the part of the record before us, it

appears that a woman, her child and her dog were visiting

next door to the defendant. The dog started toward the

defendant’s property, the child followed it, and the mother

pursued both of them to keep them from the defendant’s

property. The defendant presumably seeing the child com-

ing toward his property rushed from his home with a pistol

and fired it in the direction of the people, all of whom re-

mained on the neighbor’s property. Whether or not this

conduct constitutes a violation of § 716 is not before us.

The jury acquitted the defendant apparently believing that

the defendant had fired a blank from a starting revolver

which was not aimed directly at the people in the neighbor’s

yard. The people in whose direction the defendant fired

had no way of telling whether he was shooting blanks or

just failing in an attempt to hit them. The conduct of the

defendant was improper and such as to warrant bringing

the prosecution, He was fortunate to have been acquitted,

but substantial justice was done to all concerned by the

imposition of the costs upon him.

The statutory provision here attacked has thrice been

enacted by the legislature; it has twice been held constitu-

tional by the Supreme Court; it has been examined, tested,

construed and applied for a century and a half; it is be-

lieved by many able trial and appellate court judges to do

substantial justice; it constitutes a practical and realistic

answer to the problem of costs. We can find no reason that

would justify our holding it unconstitutional.

Order reversed, sentence reinstated.

Flood, J. files a dissenting opinion.

17

(fol. 28]

DIssENTING OPINION BY Foon, J.

Section 62 of the Act of March 31, 1860, P. L. 427, 19

PS § 1222, insofar as it authorizes the jury to impose costs

upon an acquitted defendant and subjects him to commit-

ment to jail upon failure to pay them, is a penal statute.

Yet it does not say what conduct shall subject the acquitted

defendant to this penalty. Consequently, when the jury

determines that an acquitted defendant shall pay the costs

and the court proceeds, in accordance with the statute

“forthwith” to “pass sentence to that effect and order him

to be committed to the jail of the county until the costs are

paid, unless he give security ...” there is a violation of

the due process clause of the Fourteenth Amendment of

the Constitution of the United States and Art. I, § 9, of

the Constitution of Pennsylvania, Chester v. Elam, 408

Pa. 350, 184 A. 2d 257 (1962),

The statute before us is a penal statute. It was so de-

nominated by Mr. Justice Gibson in Commonwealth v.

Tilghman, 4 8. & R. 127 (1818) in considering the Act of

1804, of which § 62 of the Act of 1860 is a faithful and

literal reproduction. “I grant, that a statute imposing

costs, is penal in its nature and must be construed

strictly .....” This is the language of Gibson, J., in the

opinion in the Tilghman case which is relied upon, mediately

or immediately, by all the subsequent cases holding these

two acts valid. In a later case, the Supreme Court said:

“The statute which enables a grand or petit jury to punish

with costs is penal, and to be strictly construed.” Clemens

v. The Commonwealth, 7 Watts 485 (1838).

It is a penal statute because under it costs can be im-

posed only upon a defendant who has been indicted.

[fol. 29] It is penal in that it may result in a jail commit-

ment, such commitment being mandatory under the statute

if the acquitted defendant does not pay the costs at once

or give security to pay them within ten days. In this it is

unlike statutes imposing costs in civil cases, such costs, in

18

the absence of fraud, being enforceable only by execution

against property. S. 8. Pierce’s Appeal, 103 Pa. 27 (1883).

The legislature which adopted it evidently considered it

penal because it was enacted as part of an act entitled “An

Act to Consolidate, Revise and Amend the Laws of this

Commonwealth relating to Penal Proceedings and Plead-

ings.”

Nor is the conclusion that this statute is penal in any

way weakened by the fact that the imposition of costs, fol-

lowing a judgment of conviction, not acquittal, has been

held for some purposes to be an incident of the judgment,

rather than punishment for the crime. This apparently

stems from Commonwealth v. Dunleavy, 16 Pa. Superior

Ct. 380 (1901), which held that a suspended sentence on

condition that costs be paid was not a sentence so as to

destroy the court’s power later to revoke the suspension

and impose a prison sentence. Cases like Commonwealth

v. Soudani, 193 Pa. Superior Ct. 356, 165 A. 2d 90 (1960),

holding the costs following a conviction are not part of

the sentence, but are an incident of the judgment, cannot

apply to defendants found not guilty. Costs on the defen-

dant cannot possibly be “incident” to a judgment following

a not guilty verdict. The statute provides that when the

jury shall upon acquittal determine that the prosecutor or

the defendant shall pay the costs, “the court shall forth-

with pass sentence to that effect.” The sentence as to an

acquitted defendant can only be that he pay the costs.

This is the actual judgment and not an incident to the judg-

{fol. 30] ment. The cases holding that the imposition of

costs is an incident to a judgment of sentence upon a guilty

verdict lend no support to the proposition that the imposi-

tion of costs on an acquitted defendant is something other

than punishment.

It is to be noted that even in civil cases the Supreme

Court said, again speaking through Gibson, J.: “At com-

mon law, there were no costs expressly by name, but the

plaintiff, where he failed, was punished in amercement pro

falso clamore, and the defendant, where the judgment was

against him in misericordia cum expensis litis, for his un-

19

just detention of the plaintiff's right; and this was the

foundation of the statutes which afterwards gave costs by

name; so that costs, in their origin, were rather a punish-

ment of the party paying, than a recompense to the party

receiving them.” Musser v. Good, 11 S. & R. 247, 250

(1824).

No amount of dialectic can alter the fact that this statute

provides that an accused may go to jail without having been

convicted of any crime—indeed after having been acquitted

of the only crime of which he was charged. This is depriv-

ing him of his liberty without due process of law under the

cases which have superseded the authority of those relied

upon by the majority.

This is the clear import of the decision of the United

States Supreme Court in 1939 in Lanzetta v. New Jersey,

306 U. 8. 451, the decision of this court in 1952 in Common-

wealth v. Franklin, 172 Pa. Superior Ct. 152, 92 A, 24 272,

and the decision of the Supreme Court of Pennsylvania in

1962 in Chester v., Elam, 408 Pa. 350, 184 A. 2d 257.

In Laneetta the Supreme Court of the United States

held that a statute violated due process which made it

criminal to be a “gangster”, which was defined as “Any

(fol. 31] person not engaged in any lawful occupation,

known to be a member of any gang consisting of two or

more persons, who has been convicted at least three times

of being a disorderly person, or who has been convicted of

any crime in this or in any other State... .” The court

held that the interpretation of the statute by the highest

court of New Jersey did not save it from being too indefi-

nite and too vague to enforce within the requirements of

due process. The court speaking through Mr. Justice But-

ler further said: “It would be hard to hold that, in ad-

vance of judicial utterance upon the subject, they were

bound to understand the challenged provision according to

the language later used by the court.... The challenged

provision condemns no act or omission; the terms it em-

ploys to indicate what it purports to denounce are so vague,

indefinite and uncertain that it must be condemned as re-

pugnant to the due process clause of the Fourteenth

Amendment.”

a

The resemblance to the statute before us is obvious. The

statute here condemns no act or omission. The majority

points to the common law crimes, punishable under our

statutes but defined only by the common law, i.e., decisions

of the courts. The precise common law definitions of such

crimes, e.g., murder, rape, burglary or arson, could not

contrast more sharply than they do with the majority’s at-

tempt to define what is punishable here—conduct “related

to the prosecution”, “reprehensible conduct”, conduct “not

reprehensible enough for a criminal conviction but suffi-

ciently reprehensible to deserve an equal division of the

costs”, conduct “in the twilight zone between drunken driv-

ing” and something less, or something repreheusible that

does not constitute a crime, such as registering falsely at

a hotel as husband and wife.

[fol.32] In Commonwealth v. Franklin, supra, we held

that the Statute of Edward III, authorizing the court to

hold under bond to keep the peace “all of them that be not

of good fame”, was unconstitutionally vague.

Finally in Chester v. Elam, supra, our Supreme Court

said that the phrase “disorderly conduct” was unconstitu-

tionally vague under both the Federal and Pennsylvania

Constitutions, quoting from Lanzeita v. New Jersey, supra,

as follows: “A statute that either forbids or requires the

doing of an act in terms so vague that men of common in-

telligence must guess as to its meaning and differ as to its

application lacks the first essential of due process of law.”

What the statute before us forbids under penalty of im-

position of costs upon an acquitted defendant, with im-

prisonment for nonpayment, is something undefined in the

statute whose meaning can only be guessed at by men of

common intelligence.

Only one of the appellate cases relied upon or cited by

the majority (Wright v. Commonwealth, 77 Pa. 470 (1875) )

may have considered the statute in the light of the Four-

teenth Amendment, and it is not at all clear that even this

case did so. The statement of the case (presumably by the

reporter) is that the defendant assigned for error, among

other things, that the provision we are considering in § 62

21

of the Act of 1860, as well as $1 of the Act of 1864, under

which the defendant was indicted, was unconstitutional.

While the opinion did discuss briefly the constitutionality

of §1 of the Act of 1864, as to § 62 of the Act of 1860 the

court said only: “The objection to the imposition of costs,

on the ground that a verdict of not guilty was rendered,

is equally futile. We must presume the jury had a good

reason for doing so, arising in the conduct of the defen-

dant. And even if the indictment had been so defective

that no conviction could have rested upon it, still the right

(fol. 33] to impose costs existed. This was expressly de-

cided, and good reasons stated for the decision, in Common-

wealth v. Tilghman, 4 S. & R. 127.” This opinion thus re-

fers back to and relies upon the Tilghman case, supra,

decided in 1818, and makes no reference to the Fourteenth

Amendment to the Constitution of the United States or

to the Constitution of Pennsylvania.

It must not be forgotten that a violation of due process

can occur as a result of jury action as well as through the

action of a judge. Such a violation occurs in cases in which

a guilty verdict is based upon evidence obtained by illegal

search and seizure, or in a trial for felony in which the

defendant is not represented by counsel and has not in-

telligently waived such representation, or when there is

any other unwaived violation of due process in the course

of the trial.

This defendant has not been found guilty of a crime, or

of refusing to pay for the machinery of justice which he

has set in action improperly, or of some Violation of an-

other’s rights which the other has vindicated by winning a

law suit against him. He is not being asked to pay be-

cause of some duty he has voluntarily assumed by marriage

or parenthood, nor is he asked to pay indirectly the cost

of having an inheritance or other property right vindicated.

The majority suggests that it is not necessary to give

notice to the defendant of what he is to be tried for, since

we can rely upon his presumed knowledge of the law that

under the Act of 1860 costs may be imposed upon him if

he is acquitted. But for what? The act does not say. Is it,

ee... s

as the majority and some other opinions indicate, because

he has done “something reprehensible”, or because he may

be guilty even though found not guilty. Against what is he

to defend? Is he to be compelled to put in evidence his

[fol. 34] good character and thus give the prosecution the

right to bring into evidence any previous offenses?

The majority say he has the opportunity to be heard

upon his liability for costs, but about what? Is the dis-

trict attorney to be permitted to discuss ‘reprehensible

conduct” other than the crime charged, and is his counsel

thus going to be compelled to scatter his defense so as to

meet this indefinite charge as well as the crime for which

he is indicted? Is the district attorney to be permitted to

tell the jury that they may impose costs even if they have

a reasonable doubt of his guilt? Surely this riddles the

safeguard which the presumption of innocence and the

Commonwealth’s burden of proof purports to throw around .

the defendant. How can anything be put to the jury on this

subject without discussing his record or the lack of it?

As the court below stated: “Trial Judges, as in this case,

have consequently instructed juries in accordance therewith

substantially in the language of the Tilghman case. There

the Supreme Court, speaking through Mr. Justice Gibson,

had said the Act was aimed at a defendant ‘.. . acquitted

of actual crime, but whose conduct may have been repre-

hensible in some respects, or whose innocence may have

been doubtful ... The judgment is not on the indictment

but on something collateral to it. The defendant is not

punished for a matter of which he stood indicted; (for

he is acquitted of everything of that sort), though on ac-

count of something, of which he was not indicted, some im-

propriety of conduct, or ground of suspicion, which the

verdict of the jury has fastened on him. . . I grant, that a

statute imposing costs, is penal in its nature... There

may, I apprehend, be acts, such as certain kinds of fraud,

that are offensive to morality, that nevertheless are not

indictable . . . Wherever misconduct may be fairly im-

(fol. 35] puted, either to a prosecutor or a defendant, they

respectively become obnoxious to this kind of legal animad-

23

version, although neither guilty of, nor technically charged

with a crime ....”

The fact that Mr. Justice Gibson found that the provi-

sion for imposition of costs upon an acquitted defendant

“at first view, may appear unjust” and Judge Keller said

that it “may appear anomalous” indicates the difficulty

these eminent judges found in sustaining this provision

even without reference to the Fourteenth Amendment. I

cannot agree that they would have sustained it today in

the light of the Fourteenth Amendment, as interpreted in

Laneetia v. New_Jersey, supra, Elam v. Chester, supra,

Commonwealth v. Franklin, supra. Under these authorities,

this statute, insofar as it authorizes the imposition of costs

upon acquitted defendants, clearly violates due process.

The order of the court below should be affirmed.

OrpER oF THE SupERIoR Court oF PENNSYLVANIA—

Filed December 12, 1963

Order reversed, sentence reinstated.

[fol. 36]

Iy tHe Supreme Court OF PENNSYLVANIA

For tue Eastern District

Allocatur Docket No. 4

CoMMONWEALTH OF PENNSYLVANIA

Vv.

Jay Gtaccio

Petition Unper Rute 69 ror ALLOWANCE OF AN APPEAL To

THE SupREME Court oF PENNSYLVANIA IN ACCORDANCE

Wire 17 Pur. Star. Ann. §190—Filed December 20,

1963

To the Honorable, the Judges of the Said Court:

The petition of Peter Hearn and James C. N. Paul,

counsel for defendant, respectfully requests that Your

oS .

‘Honorable Court allow an appeal from the Superior Court

of Pennsylvania to the Supreme Court of Pennsylvania

in the above captioned case. In support thereof, petitioners

respectfully represent:

1. Defendant was indicted in Chester County, Pennsyl-

vania for the misdemeanor of unlawfully and wantonly

pointing and discharging a firearm in violation of the Act of

July 24, 1949, P. L. 872, § 716; 18 Pur. Stat. Ann., § 4716.

Following a jury trial, he was adjudged not guilty, but

ordered to pay the costs of prosecution in the amount of

$230.95.

2. Pursuant thereto, the Quarter Sessions Court of

Chester County ordered defendant to pay costs or give

[fol. 37] security within ten days, or stand \committed to

jail until he complied therewith.

3. On April 21, 1962, defendant filed a motion for re-

lief of payment of costs.

24

4. On January 12, 1963, following argument and reargu-

ment in support of defendant’s motion, the Court granted

the motion. In the accompanying opinion (Attached hereto

as Exhibit “A”), the Court held that Act 375, Laws of

Pennsylvania 1860, 445, 19 Pur. Stat. Ann. 1222, under

which the costs were assessed, is unconstitutional because:

a. 19 Pur. Stat. Ann. 1222 contravenes the Fourteenth

Amendment to the United States Constitution in that it

is unnecessarily vague.

b. 19 Pur. Stat. Ann. 1222 is an improper delegation

of legislative power in contravention of Article III, Section I

of the Constitution of Pennsylvania.

e. 19 Pur. Stat. Ann. 1222 contravenes Fourteenth

Amendment due process as that concept has been more

recently developed as a doctrine of fundamental fairness

in criminal procedure.

d. 19 Pur. Stat. Ann. 1222 represents an unreasonable

classification and, as a result, it denies equal protection of

the laws under Fourteenth Amendment.

25

5. On appeal (Briefs of Appellant and Appellee are at-

tached as Exhibits “B” and “C”, respectively), the Snu-

perior Court, in a majority opinion by Judge Robert E.

Woodside (Attached hereto as Exhibit “D”), reversed the

order of the Quarter Sessions Court and reinstated the

sentence. In describing the number of federal constitutional

issues involved, the majority opinion said of the Quarter

[fol. 38] Sessions Court: “To our knowledge, no Court has

ever found a Pennsylvania statute in such flagrant viola-

tion of the Constitution!”

6. Judge Gerald F. Flood filed a dissenting opinion (At-

tached hereto as Exhibit “E”) in which he concluded:

“The fact that Mr. Justice Grsson found that the

provision for imposition of costs upon an acquitted

defendant ‘at first view, may appear unjust’ and Judge

Keer said that it ‘may appear anomalous’ indicates

the difficulty these eminent judges found in sustaining

this provision even without reference to the Fourteenth

Amendment. I cannot agree that they would have sus-

tained it today in the light of the Fourteenth Amend-

ment, as interpreted in Lanzetta v. New Jersey, [306

U.S. 451 (1939) ], Elam v. Chester, [408 Pa. 350, 184 A.

2d 257 (1962)], Commonwealth v. Franklin, [172 Pa.

Super. 152, 92 A. 2d 703 (1952)]. Under these authori-

ties this statute, insofar as it authorizes the imposition

of costs upon acquitted defendants, clearly violates due

process.”

7. The Act of June 24, 1895, P. L. 212 § 7(e), providing

for an appeal from the Superior to the Supreme Courts

of Pennsylvania, states, inter alia, that an appeal may lie:

“Second. If the case involves the construction or

application of the constitution of the United States or

of any statute or treaty of the United States; or

“Third. If the case involves the construction or

application of the constitution of Pennsylvania.”

(fol. 39] 8. The reasons for requesting the allowance of

an appeal are:

26

a. The arguments of both parties in both the Quarter

Sessions Court of Chester County and the Superior Court

of Pennsylvania were solely on the question of whether 19

Pur. Stat. Ann. § 1222 contravenes the United States and

Pennsylvania Constitutions. The requirements of 17 Pur.

Stat. Ann. § 190 have, therefore, been satisfied.

b. The majority opinion of the Superior Court incor-

rectly applied Wright v. Commonwealth, 77 Pa. 470 (1875)

in support of the proposition that the constitutionality of 19

Pur. Stat. Ann. § 1222 has been judicially upheld since the

ratifications of the Fourteenth Amendment and the pres-

ent Pennsylvania Constitution. As the dissenting opinion

of Judge Flood points out, there is no indication from the

Court’s opinion in Wright that the decision was based upon

constitutional grounds.

e. The Superior Court failed to recognize that Four-

teenth Amendment due process is a changing concept and

that the decisions and opinions of eminent jurists nearly a

century ago are not conclusive. In Wolf v. Colorado, 338

U.S. 25, 27 (1949), the Court said:

“ _.. [BJasic rights do not become petrified as of any

one time, even though, as a matter of human experi-

ence, some may not too rhetorically be called eternal

verities. It is of the very nature of a free society to

advance in its standard of what is deemed reasonable

and right. Representing, as it does a living principle,

due process is not confined within a permanent cata-

logue of what may at a given time be deemed the limits

[fol. 40] or the essentials of fundamental rights.” [Em-

phasis added. ]

d. The Superior Court, in its majority opinion, relied

on the standard that 19 Pur. Stat. Ann. § 1222 does “sub-

stantial justice” to fend off due process assaults. “Sub-

stantial justice” offers no answer to the numerous and

specific aspects of procedural and substantive due process

which have been contravened.

27

e. The Superior Court, by its majority opinion, added

“standards” for the application of 19 Pur. Stat. Ann.

§ 1222,* all of which are as unconstitutional as the “stand-

ards” previously used under this act.

f. The dictum of the Superior Court’s majority opinion

dealing with the factual situations in which 19 Pur. Stat.

Ann. § 1222 should be applied** will have a profound effect

upon the future use of the Act by courts of the Common-

wealth. This dictum should not be permitted to stand with-

out a review of its propriety by the Supreme Court of

Pennsylvania.

g. Notwithstanding the decision of the Superior Court,

19 Pur. Stat. Ann. § 1222—the act itself and as applied—

(fol. 41] contravenes the United States and Pennsylvania

Constitutions.

Wherefore, petitioner respectfully requests that, pur-

suant to Rule 69, he be allowed to take an appeal to the

* E.g., conduct “related to the prosecution”, “reprehensible con-

duct.”

** The majority opinion said:

“There are endless situations in which the jury might find

that the defendant’s improper conduct was responsible for the

prosecution even though he was not guilty of the crime charged.

It is not unjust for a jury to impose costs upon a defendant

where the defendant may have clearly committed the offense

charged but was able to raise a reasonable doubt that the

offense was brought within the statute of limitations; or where

the prosecutor and the defendant involved in a fist fight were

guilty of conduct not reprehensible enough for a criminal con- °

viction but sufficiently reprehensible to deserve an equal dis-

tribution of costs; or where the defendant in a “drunken

driving” case drank and then drove while in that twilight zone

that exists at some stage of the drinking ; or where defendants

charged with adultery registered at a hotel as husband and wife...

but convinced the jury that they had not actually committed

adultery.” [Emphasis supplied. }

Supreme Court of Pennsylvania from the order of the

Superior Court of Pennsylvania.

Peter Hearn, James C. N. Paul, 2001 Fidelity-Phila.

Trust Bldg., Philadelphia, Pennsylvania 19109,

Attorneys for Defendant.

[fol. 42] Duly sworn to by Peter Hearn, jurat omitted m

primimg.

[{fol. 42a]

In THE SuPREME CouRT OF PENNSYLVANIA

Eastern District

No. 218—January Term, 1964

CoMMONWEALTH OF PENNSYLVANIA,

vs.

Jay Giaccio, Appellant.

[fol. 43]

In THE SuPREME CouRT OF PENNSYLVANIA

For tHe Eastern District

Orper ALLOwiInG APPEAL

February 3, 1964. Petition allowed and Appeal granted.

Per Curiam.

(fol. 67]

Record for Appellee

In THE Court or Quarter Sessions or Cuester County

Nos. 225 and 226—September Sessions, 1961

CoMMONWEALTH

vs.

Jay Graccio

RELEvANT Docket ENTRIES

11-16-1961, Transcript No. 225 Sept. 1961. Bill of In-

dictment No. 225 Sept. 1961. .

11-16-1961, Transcript No. 226 Sept. 1961. Bill of In-

dictment No. 226 Sept. 1961.

11-16-1961, Bonds filed Nos. 225-226 Sept. 1961. Cert.

copies.

11-29-1961, Subpoena.

1-12-1962, Subpoena.

1-12-1962, Order for Appearance.

(fol. 68] 1-13-1962, Bond renewed Nos. 225-226 Sept. 1961.

_Cert. copies.

3- 5-1962, Praecipe for Withdrawal of Appearance.

4- 2-1962, Subpoena.

4- 9-1962, List of Jury drawn.

4-10-1962, Question from Jury.

4-10-1962, Deft. Own Bond for Costs.

4-21-1962, Deft. Motion to be relieved from payment of

costs.

4-23-1962, Order.

30

5- 3-1962, Testimony.

5- 5-1962, Order. —

5-29-1962, Testimony.

6-18-1962, Petition for Rehearing.

6-25-1962, Order.

8-21-1962, Order.

10-19-1962, Portion of Charge of the Court dealing with

costs.

1-12-1963, Opinion.

1-16-1963, Order.

2-28-1963, Certiorari filed.

[fol. 69]

In tHE Court or QuarTER Sessions

or CHeEsTER CounTy, PENNSYLVANIA

Portion oF CHARGE OF THE CournT DeaLine WitH Costs

Gawthrop, P.J.:

If, but only if, you find not guilty verdicts, members of

the jury, do you dispose of the costs of prosecution. Now,

with regard to the Bill No. 226, where I have directed that

you find a verdict of not guilty, you will have to dispose of

the costs of prosecution. Whatever you may determine as to

the other bill of indictment, if you find the defendant not

guilty on the Bill No. 225, that is, the one involving the inci-

dent with the Bauman boy, then and only then will you con-

sider the costs of prosecution on that bill.

Costs of prosecution may be disposed of in three ways

where misdemeanor charges are found unproved by a jury.

The charge made in each of these bills of indictment, as to

all counts, is a misdemeanor charge. In felony cases, that is,

more serious offenses such as rape, robbery, burglary and

so forth, the jury has nothing to do with disposing of the

costs in case of an acquittal. In misdemeanor cases it is

31

the jury’s duty to dispose of costs if it finds not guilty

verdicts. If you find the defendant not guilty on any bill

of indictment you must dispose of the costs of prosecution

in one of three ways. They may be placed either upon the

(fol. 70] defendant or upon the prosecutor, or upon the

county. Where a defendant is found not guilty of a mis-

demeanor but the jury finds that he has been guilty of some

misconduct less than the offense which is charged but never-

theless misconduct of some kind as a result of which he

should be required to pay some penalty short of conviction,

the costs of prosecution may be placed upon him if his mis-

conduct has given rise to the prosecution. If you find the

defendant not guilty and find that he should not pay the

costs as defendant, you may consider whether or not you

will put the costs of prosecution on the prosecutor.

Now, in the bill of indictment involving the incident with

Mrs. Arters, Evelyn A. Arters is endorsed as the prosecu-

trix on the bill of indictment. In the bill charging the affair

involving the Bauman boy, Elizabeth J. Fuhrman is en-

dorsed on the bill as the prosecutrix. You may find that

those persons are or are not the actual prosecutors, as the

evidence may indicate to you, in either or both of the bills,

if you find that someone else actually is the prosecutor. In

any event, if you find the defendant not guilty on either

of these bills, or both, as to any not guilty verdict, you may

consider placing the costs of prosecution on the prosecutor

if you decide the defendant should not pay them, if you

find that the prosecution, instead of being brought in good

faith for the reasons set forth in the charge, was on the

contrary brought out of malice or some ill-will, or other

improper motive; and if you find that neither the defendant

(fol. 71] nor the prosecutor should pay the costs of prosecu-

tion, in case of a not guilty verdict, then you may place the

costs in the only other place where they may go, and that

is on the County of Chester,

I repeat, you do not come to the question of disposing

of the costs unless and until you find a verdict of not guilty.

Now, under these rather strange circumstances, you will

have to dispose of the costs of prosecution on Bill No. 226

32

in any event because I have directed that you return a ver-

dict of not guilty on that bill. As to Bill No. 225, involving

the Bauman boy, you won’t reach that question of costs

unless and until you first find the defendant not guilty.

If you do find him not guilty on that bill, then you will

consider the costs of prosecution.

(Remaining portion of Charge of Court not tran-

scribed. )

(The jury retired but returned for further instruc-

tions as follows:)

The Court:

Members of the jury, you have asked this question of the

Court in writing: “If a verdict of innocence is arrived at

may we then divide the costs of prosecution between the

defendant and the prosecutor? If so, may we decide how

the costs should be divided?”

I will answer those questions. in the order in which you

have asked them. If you find a verdict of not guilty on

either or both bills of indictment, and you recall that we

(fol. 72] have directed you to find a not guilty verdict on

one of the bills involving Mrs. Arters’ matter, if you find

a verdict of not guilty on any bill of indictment the costs

on that bill of indictment may be divided between the defen-

dant and the prosecutor, naming the prosecutor—and that is

important if your verdict is to be effective—in such propor-

tion as you determine to be appropriate. Our Act of As-

sembly provides that that may be done.

That answers, I think, both of your questions. In other

words, first, you may, in case of a not guilty verdict, divide

the costs between the prosecutor and the defendant, on that

or any such bill of indictment. And in so doing you must

name the prosecutor to make your verdict effective in that

respect. You may divide the costs between the defendant

and the prosecutor in such proportion as to you seems

proper under the circumstances.

Does that answer your question?

Very well. Will you please retire to your jury room and

determine upon your verdict, having in mind that if in the

bill of indictment involving the boy Donald Bauman you ar-

rive at a not guilty verdict, you will therefore, on both bills

of indictment, have to dispose of the costs of prosecution in

accordance with the instructions I have given you.

Will you please return to your jury room.

(End of Charge on costs.)

[fol. 73]

In tHE Court or Quarter Sessions

OF CHESTER County, Pennsy.vania

De¥renpant’s Motion to Br Revievep From Payment or Cost

To the Honorable, the J udges of Said Court:

Jay Giaccio respectfully represents:

1. That he is the Defendant in the above criminal prose-

cutions: being 225 September Term 1961 and 226 September

Term 1961 each involving a charge of pointing deadly

weapons.

2. That he was tried before a Judge and Jury on April

9, and April 10, 1961,

3. That on April 10, 1961, said Jury returned a verdict

of “Not Guilty” on 226 September Term 1961 and placed

the costs of said prosecution on the county.

4. That on the aforesaid date said Jury returned a ver-

dict of “Not Guilty” on 225 September Term 1961 and placed

the costs on the defendant. Said costs are in the amount of

$230.95.

5. That in placing the costs in the amount of $230.95,

the Jury abused its discretion and that such placement of

34

costs on the defendant was contrary to law, and against the

weight of the evidence.

Wherefore, Jay Giaccio, moves this Honorable Court to

relieve him from the payment of said cost.

Jay Giaccio

[fol. 74]

In THE Court or Quarter Sessions

oF CHesteR County, PENNSYLVANIA

To the Honorable, the President Judge and the Associate

Judges of the Quarter Sessions Court of “hester County,

Pennsylvania:

The petition of the defendant respectfully represents:

1. The names and addresses of petitioner’s attorneys

are:

James C. N. Paul, R. F. D. No. 1 Blackburn Farm, Ber-

wyn, Pennsylvania.

Peter Hearn, 2001 Fidelity Philadelphia Trust Building,

Philadelphia 9, Pennsylvania.

2. In April of 1961, the Grand Jury returned indict-

ments charging the defendant with:

(a) Unlawfully and wantonly pointing a firearm,

and

(b) Unlawfully and wantonly discharging a firearm.

3. On April 10, 1962, a jury in the Quarter Sessions Court

of Chester County rendered a verdict of not guilty as to both

bills, but ordered the defendant to pay costs in No. 225

totalling $230.95.

({fol.75] 4. On April 21, 1962, the defendant filed a mo-

tion to be relieved of costs in No. 225. A hearing on the

defendant’s motion was held before the Quarter Sessions

Court of Chester County sitting en bane on May 21, 1962.

35

5. On June 8, 1962, entries of appearance were made

on behalf of the defendant by the above listed attorneys.

6. The instant proceedings raise fundamental issues

under the United States and Pennsylvania Constitutions

which are sufficiently complex to prevent an adequate pres-

entation by the defendant, who is not trained in law.

8. Since the time of the hearing on May 21, 1962, the

defendant has been apprised of these issues and has re-

tained counsel to present these questions to the Court.

Wherefore your petitioner prays your Honorable Court

for a rehearing on his petition for relief of costs in No. 225

and for permission to file a brief in his behalf.

James C. N. Paul, Peter Hearn, Attorneys for Peti-

tioner.

ee

(Affidavit)

(fol. 76]

In tHE Court or Quarter Sessions

OF CHESTER County, Pennsytvanu

OprInion

Defendant was charged in the above two bills of indict-

ment with unlawfully and wantonly pointing and discharg-

ing a firearm at each of two persons. At trial a verdict of

not guilty was directed and returned on Bill No. 226, and

the jury placed the costs of prosecution on the County.

On Bill No. 225 the jury returned a verdict of not guilty but

ordered Defendant to pay the costs. Pursuant thereto he

was ordered to pay the costs forthwith or give security to

pay the same within ten days and stand committed until he

complied therewith. Having so posted security, thereafter

Defendant who was not represented by counsel at or after

36

trial, having refused the Court’s offer to appoint counsel

to represent him, with the assistance of the District At-

torney’s office on request of the Court, filed a motion to be

relieved of payment of costs on the grounds that imposition

thereof upon him was contrary to law, an abuse of the jury’s

discretion and against the weight of the evidence.

Defendant argued his motion in propria persona and

while the Court held the matter under consideration counsel

entered their appearance for Defendant, filed a motion for

reargument which was granted, and thereafter ably argued

the matter and filed an extensive and well considered brief.

[fol. 77] The matter is now before us for decision, and after

careful consideration the motion must be granted.

Defendant attacks the constitutionality of the Act of

1860, P. L. 427, Sec. 62; 19 P.S. 1222 on the four grounds

that: (1) it is void for vagueness, (2) it improperly dele-

gates legislative power, (3) it violates basic principles of

due process of law, and (4) it discriminates against defen-

dants in misdemeanor cases.

Our research and that of counsel has discovered no Penn-

sylvania decision prior to the first statute on the subject,

the Act of 1791, infra, holding that acquitted defendants in

criminal cases bore the costs of prosecution, and it appears

that the contrary was true at English common law: Stephen,

History of the Criminal Law, Vol. I, page 478; Bishop, New

Criminal Procedure, Vol. I, Secs. 1313, 1317. In Com. v.

Tilghman, 4 S. & R. 126, however, our Supreme Court in

1818 sustained the validity of the Act of December 7, 1805,

4 Smith’s Laws 204, permitting imposition of costs on ac-

quitted defendants in misdemeanor cases, and in so doing

stated that in Pennsylvania “at common law” such a defen-

dant was liable for the costs of prosecution. Apparently

no appellate decision has since stated otherwise. Kessler,

Criminal Procedure in Pennsylvania, page 235, repeats the

same Pennsylvania common law rule, citing Com. v. John-

son, 5 S. & R. 195 and Strein v. Ziegler, 1 W. & S. 259.

Our statute law on the subject has not been entirely

consistent as an analysis of it demonstrates. The earliest

[fol. 78] statute was the Act of 1791, P. L. 37, 43 and 44,

37

an Act to “Supplement the Penal Laws,” which declared,

inter alia, at page 43, that in cases where grand juries

ignored bills of indictment and, at page 44, where any person

was brought before a Court and charged with crime and the

charge “shall appear unfounded”, costs should fall on the

County. There followed the Act of March 20, 1797, P. L.

281, the preamble of which recited as its purpose: “Where-

as... persons against whom indictments are presented by

the grand inquests .. . are afterwards acquitted by a petit

jury ... And whereas, by the existing laws, a party so

acquitted is equally liable to costs of prosecution as if he

were convicted, which operates injustice and a punishment

to the innocent: For remedy whereof...” it enacted that

if defendant were acquitted by a petit jury of any indictable

offense the costs should be paid out of the county stock

(Emphasis ours.) Both Acts show a clear legislative intent

to relieve all acquitted defendants of payment of costs, and

“. . . changed the odious common law principle which

left the accused to pay the costs, whether convicted or ac-

quitted;...”: Strein, supra, at 260.

Then followed the Act of December 7, 1805, 4 Smith’s

Laws 204, the Act considered in Tilghman, supra. Its pre-

amble recited that “the laws obliging the respective counties

to pay the costs of prosecutions, in all criminal cases, where

the accused is or are acquitted, have a tendency to promote

litigation; inasmuch as they enable restless and turbulent

people to harass the peaceable part of the community, with

[fol. 79] trifling, unfounded, or malicious prosecutions at

the expense of the public... ” (Emphasis ours.) Although

its stated purpose was to discourage unfounded prosecu-

tions, its terms went further. Section 1 provided that, ex-

cept in felony cases, where a grand jury ignored a bill of

indictment it should decide and certify whether the county

or the prosecutor should pay the costs, but that in all cases

of acquittal by a petit jury they should determine by their

verdict whether the county, the prosecutor, or the defendant

or defendants should pay the costs. Section 2 provided

that where any jury determined that a prosecutor should

pay the costs the Court should pass sentence to that effect

38

by committing him to jail until the costs were paid unless

he gave security to pay them within ten days. So, while

reciting a purpose of discouraging unfounded prosecutions

and relieving the public of the costs in such cases, the Act

revived the very Pennsylvania “common law” practice of im-

posing costs upon acquitted defendants which the Acts of

1791 and 1797 had abolished and the latter had declared to

be an “injustice” and a “punishment of the innocent.” At

the same time it would appear that in felony cases the relief

granted by the Act of 1791 continued to apply, as it does

today.

Whether the words “or the defendant or defendants”

were included deliberately or by inadvertence in the Act

of 1805, they were incorporated again in the same Janguage

in its reenactment by the Act of 1860, supra, and have ever

since been applied in misdemeanor cases. Trial Judges, as

[fol. 80] in this case, have consequently instructed juries

in accordance therewith substantially in the language of the

Tilghman case. There the Supreme Court, speaking through

Mr. Justice Gibson, had said the Act was aimed at a defen-

dant “.. . acquitted of actual crime, but whose conduct

may have been reprehensible in some respects, or whose in-

nocence may have been doubtful ... The judgment is not

on the indictment but on something collateral to it. The

defendant is not punished for a matter of which he stood

indicted; (for he is acquitted of everything of that sort),

though on account of something, of which he was not in-

dicted, some impropriety of conduct, or ground of suspicion,

which the verdict of the jury has fastened on him... I

grant, that a statute imposing costs, is penal in its nature

... There may, I apprehend, be acts, such as certain kinds

of fraud, that are offensive to morality, that nevertheless

are not indictable ... Wherever misconduct may be fairly

imputed, either to a prosecutor or a defendant, they respec-

tively become obnoxious to this kind of legal animadversion,

although neither guilty of, nor technically charged with a

crime.” (Emphasis ours.)

We are asked to reconsider the validity of a statute

passed upon with approval by our Supreme Court in 1818.

39

That decision would be binding authority upon us except

stantial constitutional ques-

more recent decisions of the

Court of Pennsylvania whi

(fol. 81] to reexamine the ma

Pa. Super. Ct. 152.

The imposition of costs upon an acquitted defendant under

the Act of 1805 was a punitive measure enforceable by im-

prisonment: Com. v. Tilghman, supra; Com. v. Harkness,

4 Binney 193. Its subsequent reenactment in the same lan-

guage by the Act of 1860 indicates its interpretation has

been approved by the legislature. This compels the same

construction under the later Act: Statutory Construction

Act of 1937, P. L. 1019, Sec. 52 (4); 46 P.S. 552 (4);

Parisi v. Philadelphia Zoning Board of Adjustment, 393

Pa. 458; Bogden v. School District of Coal Township, 369

Pa. 147. But to be constitutional such a statute must con-

tain clear standards by which to measure the conduct

punished by it. If it is s* vague that men of common

intelligence must guess at its weaning and differ as to its ap-

plication it violates the first essential of due process: Lan-

zetta v. New Jersey, 306 U. S. 451; Chester v. Elam, 408

Pa. 350; Com. v. Franklin, supra. The vagueness may be

from uncertainty in regard to persons within the scope of

such an Act, or in regard to the applicable tests to ascer-

tain guilt: Winters v. New York, 333 U. S. 507. Funda-

mental fairness requires notice of what > avoid. If the pur-

pose of the Act is not disclosed punishment may not be im-

posed for conduct which at the time of its commission was

not forbidden by law in the understanding of persons seek-

ing to observe the law. This requirement of fair notice

that there is a boundary of prohibited conduct not to be

(fol. 82] over-stepped is included in the concept of “due

process of law.” Where such notice is lacking it is said the

statute is void for indefiniteness: dissenting opinion of Mr.

Justice Frankfurter in Winters v. New York, supra. The

Act in question is totally lacking in any tests or standards

by which men of common intelligence can determine what

40

conduct will result in the imposition of costs and allows

unbounded latitude for difference of opinion as to the cir-

cumstances in which it may be applied to acquitted defen-

dants.

Similarly for the reasons stated in Com. v. Franklin,

supra, the Act is also unconstitutional as an improper dele-

gation of legislative power in contravention of Article III,

Section 1, of the Constitution of Pennsylvania. Any statute

which vests in a person or body of persons, without any

standards except his or their own judgment, the power of

supplying, or giving force to, or suspending its terms is

unconstitutional. Judicial power is exercised only for the

purpose of giving effect to the will of the legislature, which

is the will of the law and not of any individual or group

of persons: Franklin, supra, at 182. The Act delegates to

a jury the power to inflict punishment without any fixed

tests or standards to guide it in such circumstances as it

may see fit to do so. In so doing it is an unconstitutional

delegation of legislative power.

Defendant asserts the Act violates both procedural and

substantive “due process of law” in contravention of the

14th Amendment to the Constitution of the United States,

[fo!. 83] as that concept has more recently developed as a

doctrine of “fundamental fairness.” In a procedural sense

it violates that concept because it lacks standards defining,

and for determination of guilt of, conduct for which the

punishment may be imposed. It gives a defendant no notice

of the misconduct upon which the punishment depends or

of his right to defend against it. If affords no hearing on

the issue of costs but only on the charge contained in the

indictment to which the evidence is limited. Finally, it does

not require proof beyond reasonable doubt of the miscon-

duct underlying imposition of the penalty: In Re Oliver, 333

U.S. 257; Winters v. New York, supra. Thus it contravenes

procedural due process.

Substantively the Act seems to violate “due process”

by impcsing a punishment or penalty upon defendant

found to be innocent under the law and is a denial of “equal

protection of the laws”, both contrary to the 14th Amend-

41

ment. The fundamental unfairness of punishing the in-

nocent is self-evident. Apparently the practice never existed

at the English common law, and so far as we can deter-

mine it does not exist in any other State of the United

Florida, North Carolina and Mississippi, and has been

criticized in principle in Pennsylvania by Fuller, P.J., in

Com. v. Webster, 23 Luzerne 359 as an “instrument of op-

pressive cruelty” which should not be tolerated in a civilized

age. The Courts of four other states have indicated that

costs should not be imposed on acquitted defendants. Cf.

Arnold yv. State (Wyoming), 306 P. 2d 368; Childers v.

[fol. 84] Com., 171 Va, 456; State v. Brooks, 33 Kan. 708 ;

Biested v. State (Nebraska), 91 N.W. 416.

Finally, the Act discriminates between innocent defen-

generally: ef. Act of 1860, P. L. 427, See. 64; 19 P.S. 1223,

which places costs on the County in cases of acquittal of

felonies. It has been said “. - . the law does all that is

needed when it does all that it can, indicates a policy, ap-

plies it to all within the lines, and seeks to bring within the

lines all similarly situated so far and so fast as its means

allow”: Buck y. Bell, 274 U. S. 208. Presumably the im-

We consider the imposition of costs upon acquitted de-

fendants in misdemeanor cases is, under the modern con-

cepts of “due process of law” and “fundamental fairness,”

equally as offensive to the 14th Amendment to the Constitu-

tion of the United States as was the requirement of entry of

security after acquittal on penalty of commitment in default

thereof, which was struck down in Com. v. Franklin, supra.

What was there said at page 193ff. applies equally here,

i

42

[fol. 85] especially: “The evil of the (statute) we are con-

sidering is that it is in reality an effective power to punish

in virtually unrestrained form.” Under the more recent

decisions of the Courts of the United States and of this

Commonwealth, Sec. 62 of the Act of 1860, P. L. 427; 19

P.S. 1222, is unconstitutional and void insofar as it per-

mits imposition by the verdict of a jury of the costs of

prosecution on acquitted defendants in misdemeanor cases.

ORDER

Defendant’s motion to be relieved of the costs of prose-

cution is granted. The verdict, insofar as it imposes upon

Defendant the penalty of the payment of costs of prosecu-

tion is set aside as being contrary to law. The sentence

imposed upon Defendant that he pay said costs forthwith

or give security to pay the same within ten (10) days and

to stand committed until he had complied therewith is

vacated.

By the Court:

Thomas C. Gawthrop, P.J.

[fol. 86] [File endorsement omitted]

(fol. 87}

No. 218 January Term, 1964

Returnable 3rd Month of March 1964

List for April 20 1964 at Phila.

Ly THE Supreme Covet or PENNSYLVANIA

For THE Eastern District

Superior Court of Pennsylvania, sitting at Philadelphia

No. 123—Oetober Term, 1963

Court of Quarter Sessions of the County of Chester

No. 225—September Term, 1961

CoMMONWEALTH OF PENNSYLVANIA,

v.

Jay Giaccio.

APPEAL AND ArFipavit—Filed February 5, 1964

Enter appeal on behalf of J ay Giaccio from the judg-

ment of the Superior Court of Pennsylvania, sitting at

Philadelphia, as per order of Supreme Court, allowing

said Appeal, filed 3rd day of February 1964.

Peter Hearn, James C. N. Paul, Attorneys for Ap-

pellant.

Send All Notices To: Peter Hearn, (Address) 2001

Fidelity-Phila. Trust Bldg., Philadelphia, Pa,

19109.

To Patrick N. Bolsinger, Prothonotary

i

44

Supreme Court—Eastern District

County of Philadelphia, ss:

Peter Hearn, attorney for defendant and authorized by

him to take this affidavit, being duly sworn, saith that said

Appeal is not taken for the purpose of delay, but because

Appellant believes he has suffered injustice by the judg-

ment of Superior Court from which he appeals.

Peter Hearn.

Sworn to and subscribed before me this 5th day of Feb-

ruary A. D. 1964.

John S. Raum, Notary Public, Phila., Phila. Co., Pa.,

My Commission Expires Jan. 7, 1967.

[fol. 88]

218 January Term, 1964

Docket ENTRIES

CoMMONWEALTH OF PEenNsyLvani4, Appellant

v.

Jay Gtaccio

CRIMINAL CASE

ALLOCATUR

For Appellant:

James C. N. Paul

* Peter Hearn

2001 Fidelity-

Phila. Trust Bldg.

Phila., Pa. 19107

For Appellee:

* Samuel J. Halpren,

Dist. Atty.

Court House Annex,

West Chester, Pa.

* John S. Halstead,

Asst. Dist. Atty.

14 N. High Street,

West Chester, Pa.

A. Alfred Delduce

February 5, 1964.

February 7, 1964.

February 10, 1964.

April 14, 1964.

Appeal from the Judgment of the

Superior Court at No. 123 October

Term, 1963, reversing Order, and

Sentence reinstated, of the Court

of Quarter Sessions of the County

or Cuester, at No. 225-226 Septem-

ber Sessions, 1961. Appeal al-

lowed at No. 240 Allocatur Docket

No. 4, by Order of February 3,

1964,

Appeal and Affidavit filed and Writ

exit, returnable the Third Monday

of March, 1964, listed for argu-

ment at the session commencing

April 20, 1964.

Record filed.

Appearance of John S. Halsted

and A. Alfred Delduce for Appel-

lee, filed.

Petition of Appellant for Exten-

sion of Time to 45 Minutes Allowed

for Oral Argument, filed,

ORDER

4/16/64

Petition denied.

PER CURIAM.

April 22, 1964 Argued (145)

DECISION

July 6, 1964 The Order of the Supreme Court

Is Affirmed.

Roberts, J.

Mr. Justice Cohen Files a Dissent-

ing Opinion.

July 16, 1964. Notice of Appellant of Intention to

Appeal to the Supreme Court of

the United States, and Request for

Certification of Transcript of Rec-

ord, filed.

October 2, 1964. Notice of Appellant of Appeal to

the Supreme Court of the United

States and Request for Certifica-

tion of Transcript of Record, filed,

and Affidavit of Service, filed.

47

[fol. 89] [File endorsement omitted]

[fol. 90]

In THE Supreme Court or PENNSYLVANIA

For THe Eastern District

No. 218—January Term, 1964

Argued April 22, 1964

CoMMONWEALTH OF PENNSYLVANIA,

v.

Jay Giaccio, Appellant.

Appeal from Order of the Superior Court of Pennsyl-

vania, October Term, 1963, No. 123, Reversing the Order

of the Court of Quarter Sessions of Chester County at No.

225, September Sessions 1961.

OPINION oF THE CourtT—Filed J uly 6, 1964

Roberts, J.

In the context of current interpretations of the Constitu-

tions of the United States and of this Commonwealth, we

are asked to declare invalid the Act of 1860, March 31,

P.L. 427, § 62,19 P.S. § 1222, which permits the imposition

by a jury of costs on defendants acquitted of misdmeanors.?

* This Act was taken from the Act of 1804, Dec. 8, 4 Sm. 204,

§§ 1, 2, and the Act of 1859, April 12, P.L. 528.

* The Superior Court, in this case, observed that the validity of

the Act has been sustained by it and by this Court on numerous

occasions. Judge Woodside, for the majority, noted:

“The validity of a statute imposing costs upon an acquitted

defendant was before the Supreme Court in Commonwealth v.

Tilghman, 4 S. & R. 127 (1818), where Mr. Justice Gibson

prophesied that the provision in the Act of 1804 would ‘prove

highly beneficial’ even though it, ‘at first view, may appear

48

[{fol. 91] The Act specifically provides:

“In all prosecutions, cases of feiony excepted, if the

bill of indictment shall be returned ignoramus, the

grand jury returning the same shall decide and certify

on such bill whether the county or the prosecutor shall

pay the costs of prosecution; and in all cases of ac-

quittals by the petit jury on indictments for the

offenses aforesaid, the jury trying the same shall deter-

mine, by their verdict, whether the county, or the

prosecutor, or the defendant shall pay the costs, or

whether the same shall be apportioned between the

prosecutor and the defendant, and in what proportions;

and the jury, grand or petit, so determining, in case

they direct the prosecutor to pay the costs or any por-

tion thereof, shall name him in their return or verdict;

and whenever the jury shall determine as aforesaid,

that the prosecutor or defendant shall pay the costs,

the court in which the said determination shall be made

shall forthwith pass sentence to that effect, and order

him to be committed to the jail of the county until the

costs are paid, unless he give security to pay the same

within ten days.”

unjust.’ One hundred thirteen years later Judge Keller,

speaking for this Court, said of the provision imposing costs

upon acquitted defendants, ‘However anomalous the course

may appear to jurisdictions unfamiliar with our procedure, it

is the law of this Commonwealth and it works substantial

justice.’ Commonwealth v. Cohen, 102 Pa. Superior Ct. 397,

401, 157 A. 32 (1931). Between these two decisions the statu-

tory provision here questioned was examined by the appellate

courts, and its use approved many times: Harger v. Commis-

sioners of Washington Co., 12 Pa. 251 (1849); Baldwin v.

Commonwealth, 26 Pa. 171 (1856) ; Commonwealth v. Keenan,

67 Pa. 203, 207, 208 (1871); Linn v. Commonwealth, 96 Pa.

285 (1881). In Commonwealth v. Tremeloni, 93 Pa. Superior

Ct. 482 (1927) this Court reversed the court below which had

set aside the costs imposed upon a defendant by a jury.”

Also see Wright v. Commonwealth, 77 Pa. 470 (1875).

49

Appellant was charged with pointing a deadly weapon

at another person in violation of Section 716 of the Penal

Code, June 24, 1939, P.L. 872, 18 P.S. § 4716. The evidence

was that, apparently under the apprehension that persons

on @ neighbor’s land were about to trespass upon his own

property, he fired a starting pistol in their direction. The

[fol. 92] would-be trespassers, at that time, had no way of

knowing that appellant was firing blanks or that the weapon

was other than a live revolver, The jury acquitted appel-

lant of the substantive offense’ but imposed the costs of

prosecution upon him.

Appellant moved to be relieved of payment of the costs,

which motion was granted by the trial judge. In doing so,

the court declared the Act of 1860 unconstitutional and

set aside the verdict insofar as it imposed upon appellant

the “penalty” of the payment of costs.

The Commonwealth appealed to the Superior Court,

which reversed and reinstated the “sentence.” This Court

granted allocatur.

Appellant makes the general constitutional challenge

that the Act violates basic principles of fairness, both pro-

cedurally and substantively. The statute is attacked as

vague and lacking in sufficient standards. It is urged fur-

ther that the Act is an improper delegation of legislative

power in contravention of Article II, Section 1 of the Con-

stitution of Pennsylvania. It is also contended that the

Act violates the equal protection clause of the Fourteenth

Amendment to the Constitution of the United States be-

cause it does not treat those acquitted of felonies or of

summary offenses in like manner.

At the outset, it is important to note, as did the Superior

Court, that the Act of 1860 is not a penal statute, some

language in the very early cases notwithstanding. Imposi-

[fol. 93] tion of costs is not part of any penalty imposed

even in those cases where there is a conviction. “., , [A]

direction to pay costs in a criminal proceeding is not part

* However, appellant’s conduct apparently did constitute an

assault.

50

of the sentence, but is an incident of the judgment: Com-

monwealth v. Dunleavy, 16 Pa. Superior Ct. 380. And see

Commonwealth v. Moore, 172 Pa. Superior Ct. 27, 92 A. 2d

238. Costs do not form a part of the penalty imposed by

statutes providing for the punishment of criminal offenses,

Commonwealth v. Cauffiel, 97 Pa. Superior Ct. 202, and

liability for the costs remains even after a pardon by the

executive: Cope v. The Commonwealth, 28 Pa. 297; County

of Schuylkill v. Reifsnyder, 46 Pa. 446.” Commonwealth

v. Soudani, 193 Pa. Superior Ct. 353, 355-56, 165 A.2d 709,

711 (1960).

While it is true that the statute empowers the court to

“pass sentence to that effect,” this authority must be read

with the language which immediately precedes it. So con-

sidered, it is clear that the term “sentence” is not used in

its strictly technical sense as the formal pronouncement to

the accused of the legal consequences of his guilt.‘ It merely

means an adjudication by the court in compliance with the

statute after the jury’s finding that the prosecutor or the

defendant shall pay costs. That this is the legislative mean-

ing of the phrase “pass sentence” is made unmistakably

evident by the discretion granted to the jury to impose

costs not only upon the acquitted defendant but also upon

the prosecutor who is not even charged with a criminal

offense. Moreover, should the grand jury return a bill

“ignoramus,” it shall also determine whether the county or

[fol. 94] prosecutor shall pay the costs.

We conclude, therefore, that the phrase “pass sentence,”

as used in the statute, is synonymous with the authority of

the court to assess a judgment for costs in civil cases.*

*“Sentence” may be defined: “The judgment formally pro-

nounced by the court or judge upon the defendant after his con-

viction in a criminal prosecution, awarding the punishment to be

inflicted. Judgment formally declaring to accused legal conse-

quences of guilt which he has confessed or of which he has been

convicted. The word is properly confined to this meaning.” Black’s

Law Dictionary 1528 (4th ed. 1951).

5 We do not have before us the question of the validity of that

portion of the Act which calls for enforcement of the collection of

the costs by imprisonment. It is sufficient to note that where a

51

Just as costs in civil cases may be imposed whenever

permitted by statute, not as a penalty but rather as com-

pensation to a litigant for expenses,* so, too, the costs under

this statute represent compensation or partial reimburse-

ment to the county for expenses incurred in a prosecution.

The civil character of costs is further supported by the

authority given the jury to fasten costs upon a prosecutor

whose unjustified conduct brings about a prosecution, In

this event, the jury may assess all, part or none of the

costs against him. If, however, the jury determines that

neither the prosecutor nor the defendant were at fault,

the jury may place all of the costs upon the county. If

the jury determines that both were at fault, it may divide the

costs between the prosecutor and the defendant equally

or in any other proportion.

(fol. 95] Nothing more is here involved than utilization of

the machinery of the courts of quarter sessions for the dis-

position of costs.

“The imposition of costs upon a successful litigant is not

unknown to the courts of Pennsylvania. In equity, the

Orphans’ Court, and upon appeal to the appellate courts,

costs may be placed where justice requires them to be,

even though they be placed upon the successful party. The

practice and procedure of placing costs upon an acquitted

defendant refuses to pay the costs or to provide security therefor,

his confinement is the result of the court’s exercise of its power to

punish contempt. As the Superior Court observed :

“But if he is unable to pay the costs, he may be exonerated

from paying them by proceeding under the insolvency act.

This procedure is available to him not only after he has been

committed to prison for failure to pay the costs, but also before

he is committed. Thus, an acquitted defendant upon whom

the costs have been imposed may be discharged from paying

them without having to undergo any actual imprisonment.

Kishbaugh’s Petition, 135 Pa. 468, 19 A. 1063 (1890) ; In re:

rom of Fines, Cost, ete., 76 Pa. D. & C. 456, 469, 471

1950).”

*See Steele v. Lineberger, 72 Pa. 239 (1872); 1 Laub, Penn-

sylvania Keystone, Costs §1 (1964),

52

defendant who is not completely innocent or without fault

has been a salutary and effective way of administering the

criminal law.” Commonwealth v. King, —— Pa. D. & C. 2d

—, —— (1963).

Turning, then, directly to the first issue presented, ap-

pellant asserts that the Act is vague and lacking in appro-

priate standards. For support, appellant relies on deci-

sions wherein penal statutes have been declared invalid.

We do not here have such a statute. As already noted, the

imposition of costs is, in reality, civil in nature. Nor do

we have a statute which attempts to create an offense

without properly defining the prohibited (or required) con-

duct. Neither is the statute otherwise vague and uncertain

or defective in failing to apprise an accused of the acts

the results of which may justify imposition of costs. See

Chester v. Elam, 408 Pa. 350, 184 A.2d 257 (1962).

The provisions of the statute constitute clear notice and

inform both prosecutor and defendant that the matter of

costs may be determined incidentally to the basic issue of

guilt or innocence. The Superior Court quite properly ob-

[fol. 96] served: “Of course, costs of a trial cannot be

imposed upon a defendant for conduct not related to the

prosecution, nor for conduct concerning which there is no

relevant evidence before the jury.”

Assuming that there must exist a standard by which a

defendant will know that he may incur costs, we are satis-

fied that the Act of 1860 fulfills this requirement. It is

clear that the Act cannot be read by itself, but must be

considered together with the particular statute creating the

substantive offense and all the circumstances presented to

the jury. A defendant on trial for a misdemeanor knows

the charge he must meet and knows that, in the event of a

conviction, he may have to pay costs as well. By the Act of

1860, a defendant is also placed on notice that if acquitted,

he may have to pay all or part of the costs of the prosecu-

tion.

By judicial interpretation, the courts of this Common-

wealth for over a century and a half have applied a stand-

ard of reasonableness on the issue of costs. The standard

53

is essentially no different from that applied by a court of

equity and adequately meets the objections raised by ap-

pellant. If a defendant is charged with a misdemeanor and

is brought to trial, and a prima facie case is made out, but

the jury finds only reprehensible acts or misconduct which

fall short of the offense charged, he may be held respon-

sible for the costs of prosecution if his misconduct gave

rise to it.’

A defendant charged with a misdemeanor also knows that

even if the Commonwealth proves its case against him, a

(fol. 97] jury may still act in his favor by returning a ver-

dict of “not guilty and pay the costs” plus the silent ad-

monition “but don’t do it again.” Indeed, it is often his

fervent hope that the jury will so find.

Judge J. Frank Graff, a highly experienced and very able

trial judge, in passing upon this issue in Commonwealth v.

King, supra, —— D. & C. 2d at —— ( 1963), appropriately

held:

“The standard by which costs may be placed upon the

defendant must arise out of the particular case upon

trial. As a factual matter, from vast experience in the

trial of cases, juries are reluctant upon occasions to

adjudge a defendant guilty, and seek the alternative

of not making a record against him, but requiring him

to pay the costs, because of his reprehensible conduct.

The Constitution does not require impossible stand-

ards; all that it requires is that the language conveys

sufficiently definite warning as to the prescribed. con-

duct, when measured by common understanding and

practice: Roth v. United States, supra [354 US. 476,

77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957)]... .” é

We are satisfied, therefore, that the Act of 1860, as con-

strued and applied, comports with due process of law and

is constitutionally acceptable and fundamentally fair.

" As a practical matter, if the Commonwealth fails to establish

a prima facie case, the defendant may be discharged on demurrer

and no costs may be imposed upon him.

54

Appellant contends that the statute denies procedural due

process because the only hearing contemplated is the trial

of the substantive offense and there is not opportunity to

“defend” on the issue of costs. By this argument, appel-

[fol. 98] lant concedes that there is a hearing afforded, but

apparently believes that the Act should provide for a sepa-

rate hearing on the matter of costs. The trial on the sub-

stantive offense offers ample opportunity to defend on the |

basis that defendant’s conduct warrants neither a verdict

of guilty nor imposition of costs. In the language of the

Superior Court:

“He has an opportunity to be heard on the question of

costs. The decision of the jury is based upon evidence

heard by it. The defendant has a right to question the

charge of the court on the question of costs. He has

the right to subsequently challenge the amount of the

costs taxed, and to challenge any arbitrary verdict by

the jury in imposing the costs upon him.”

We also find no merit in appellant’s argument that the

Act of 1860 is an unconstitutional delegation of legislative

power to the judiciary. We are in full accord with the Su-

perior Court’s treatment of that issue:

“It is obvious that in authorizing the disposition of

costs, the legislature has not delegated the power to

the jury to make a law, but only the power to deter-

mine some fact or state of things upon which the law

makes its action depend. This it may do. Locke’s Ap-

peal, 72 Pa. 491, 498 (1873); Nester Appeal, supra,

187 Pa. Superior Ct. 313, 316, 144 A. 2d 623 (1958).

It is not an exercise of a legislative power by the judi-

ciary for it, through a jury, to dispose of the costs in

accordance with a statutory provision, but it would be

an unconstitutional assumption of a legislative power

[fol. 99] by the judiciary were the courts to ignore

the statute and dispose of costs contrary to its provi-

sions.”

55

Finally, appellant urges that there is no rational basis

for the imposition of costs on a defendant acquitted of a

misdemeanor when one acquitted of an unfounded summary

offense* or a felony’ is immune from this burden. Conse-

quently, appellant contends the Act of 1860 denies him

equal protection of the law.

The Superior Court appropriately answered:

“The separation of crimes into these classes and the

application of different rules to the different classes

has been so uniformly recognized and so firmly estab-

lished in our law that the validity of legislation deal-

ing with these classes separately need no longer be

examined. Although the classification of particular

crimes by the legislature may not always appear con-

sistent, the separation of crimes into these classes and

the application of different rules to each class is a

matter for the legislature and its exercise of that power

in separating crimes for the payment of costs is not

a violation of the constitution. A classification may be

discriminatory and not unconstitutional if any state

of facts can [reasonably] be conceived that would sus-

tain it. Jones & Laughlin Tax Assessment Case, 405

Pa. 421, 436, 175 A.2d 856 (1961).”

(fol. 100] In the instant situation, it appears that felony

prosecutions are of such public importance that the Com-

monwealth is willing to bear the costs thereof. As to sum-

mary offenses, there is no jury which may impose costs,

Classification is a task exclusively for the Legislature.

Our only inquiry is to determine whether a classification is

patently arbitrary and utterly lacking in rational justifica-

tion. Milk Control Commission v. Battista, 413 Pa. 652,

198 A.2d 840 (1964). The classification created by the Act

of 1860 does not violate this standard, and it must be per-

mitted to stand.

* Act of Sept. 23, 1791, 3 Sm.L. 37, § 13, 19 PS. § 1221.

* Act of March 31, 1860, P.L. 427, § 64, 19 P.S. § 1223.

——

56

Appellant has failed to meet his heavy burden of proving

that the Act of 1860 clearly, palpably and plainly violates

the Constitution. Milk Control Commission v. Battista,

supra.

We share the Superior Court’s concluding comment:

“The statutory provision here attacked has thrice

been enacted by the legislature; it has twice been held

constitutional by the Supreme Court; it has been ex-

amined, tested, construed and applied for a century

and a half; it is. believed by many able trial and appel-

late court judges to do substantial justice; it consti-

tutes a practical and realistic answer to the problem

of costs. We can find no reason that would justify our

holding it unconstitutional.”

The order of the Superior Court is affirmed.

Mr. Justice Cohen files a dissenting opinion.

[{fol. 101] [File endorsement omitted]

[fol. 102]

Dissenting Oprnion—Filed July 6, 1964

CoHEN, J.

I would adopt the dissenting opinion of Judge Flood, 202

Pa. Superior Ct. 310, 196 A. 2d 189 (1963), and reverse

the judgment of the Superior Court.

[fol. 103]

[fol. 104]

_ Ty tae Supreme Cover or Pennsyivania

For tHe Easrern Disrricr

January Term, 1964

No. 218

[File endorsement omitted]

Jay Giaccio, Appellant

vs.

CoMMONWEALTH OF PENNSYLVANIA, Appellee

Notice or APPEAL TO THE SUPREME COURT OF THE

Unrtep States—Filed October 2, 1964

I. Notice is hereby given that Jay Giaccio, appellant above

named, hereby appeals to the Supreme Court of the United

States from the final order of the Supreme Court of Penn-

sylvania which affirmed the sentence herein and which

was entered on July 6, 1964.

This appeal is taken pursuant to 28 U.S.C.A. $1257 (2).

Appellant was indicted for the misdemeanor of point-

ing a deadly weapon at another person in violation of §716

of the Penal Code of Pennsylvania, Act of June 24, 1939,

P. L. 872; Pa. Stat. Ann. tit. 18, §4716. Following trial, a

jury rendered a verdict of not guilty, but it assessed the

costs of prosecution against appellant pursuant to the Act

of March 31, 1860, P.L. 427, §62; Pa. Stat. Ann. tit. 19,

§1222. Appellant was thereafter sentenced to pay costs in

the amount of $230.95 or be committed to jail until paid.

Appellant, having posted security, is not presently confined

to jail.

II. The Prothonotary of the Supreme Court of Pennsy]l-

vania will please prepare a transcript of the record in this

case for transmission to the Clerk of the Supreme Court of

(fol. 105] the United States and include in said transcript

the following:

58

- A. Relevant docket entries in the Court of Quarter Ses-

sions of Chester County, Pennsylvania, as reproduced in the

Record printed for and presented to the Superior and Su-

preme Courts of Pennsylvania.

B. Relevant portion of charge of the trial court as re-

produced in the Record printed for and presented to the

Superior and Supreme Courts of Pennsylvania.

C. Defendant’s Motion to be Relieved From Payment of

Costs as reproduced in the Record printed for and presented

to the Superior and Supreme Courts of Pennsylvania.

D. Petition for Rehearing as reproduced in the Record

printed for and presented to the Superior and Supreme

Courts of Pennsylvania.

E. Opinion of the Trial Court as reproduced in the

Record printed for and presented to the Superior and Su-

preme Courts of Pennsylvania.

F. Order of the Trial Court as reproduced in the Record

printed for and presented to the Superior and Supreme

Courts of Pennsylvania.

G. Appeal to Superior Court of Pennsylvania.

H. Superior Court docket entries.

I. Superior Court Opinions as reproduced in the Sup-

plemental Record printed for and presented to the Supreme

Court of Pennsylvania.

J. Superior Court Order as reproduced in the Supple-

mental Record printed for and presented to the Supreme

Court of Pennsylvania.

K. Petition for Allowance of an Appeal to Supreme

[fol. 106] Court of Pennsylvania as reproduced in the Sup-

plemental Record printed for and presented to the Supreme

Court of Pennsylvania.

L. Order granting appeal as reproduced in the Sup-

_ plemental Record printed for and presented to the Supreme

Court of Pennsylvania.

M. Appeal to Supreme Court of Pennsylvania.

N. Supreme Court docket entries.

O. Supreme Court Opinions.

P. Supreme Court Order.

Ill. The following questions are presented by this appeal:

A. Whether the Act of March 31, 1860, P.L. 427, §62; Pa.

Stat. Ann. tit. 19, §1222—as a punitive statute requiring that

its procedure of enforcement satisfy the basic requirements

of due process of law embodied in the United States Con-

stitation, Article XIV, §2,—is designedly, unnecessarily

and, therefore, unconstitutionally vague?

B. Whether the Act of March 31, 1860, P.L. 427, §62;

Pa. Stat. Ann. tit. 19, 41222 contravenes the basic require-

ments of due process of law embodied in the United States

Constitution Article XIV, §2, because it violates basic

principles of fundamental fairness, both in a procedural

and a substantive sense?

C. Whether the Act of March 31, 1860, P.L. 427, §62;

Pa. Stat. Ann. tit. 19, §1222 violates the “equal protection of

the laws” embodied in the United States Constitution Article

XIV, §2, because it discriminates against defendants in

misdemeanor cases by withdrawing from acquitted defen-

dants in some criminal cases protections which are be-

(fol. 107] stowed in other criminal cases in the absence of

any rational basis for making such distinction?

Peter Hearn, James C. N. Paul, 2001 Fidelity-Phila-

delphia Trust Bldg. 123 South Broad Street,

Philadelphia, Pennsylvania 19109, Attorneys for

Appellant.

(fol. 108] Affidavit of Service (omitted in printing).

[fol.109] Triple Certificate to foregoing transcript

(omitted in printing).

60

(fol. 112]

Iw THE Supreme Court of PENNSYLVANIA

Eastern DIstTRICT

January Term, 1964

No. 218

CoMMONWEALTH OF PENNSYLVANIA,

vs.

Jay Giaccio, Appellant.

Petition Unper Unrrep States SUPREME Court Rue 13

ror Exrension or Time Untm January 15, 1965 in

Wuicz To DocKET THE APPEAL OF THE ABOVE CAPTIONED

Case To THE Unrrep States SuPREME CouRT AND TO Fiz

rae Recorp THerzor With THE CLERK oF THAT Court

—Filed November 23, 1964

To the Honorable Chief Justice of the Supreme Court of

Pennsylvania:

Appellant, by his attorneys, Peter Hearn, James C. N.

Paul and Paul J. Mishkin, respectfully requests that the

Chief Justice of the Supreme Court of Pennsylvania ex-

tend the time until January 15, 1965 in which to docket the

appeal of the above captioned case to the Supreme Court

of the United States and to file the Record thereof with the

Clerk of that Court. In support thereof, petitioner respect-

fully represents :

1. Appellant has filed a Notice of Appeal to the Supreme

Court of the United States appealing the Judgment and

Order of the Supreme Court of Pennsylvania in the above

captioned case entered on July 6, 1964.

[fol.113] 2. Under the time limit set forth in United

States Supreme Court Rule 13, appellant must docket his

61

appeal and file the Record with the Supreme Court by

December 1, 1964.

3. Rule 13 permits any Justice of the Court whose deci-

sion is being appealed to enlarge the time for docketing

the case with the Supreme Court of the United States upon

good cause being shown.

4. Good cause for such extension has been shown in the

instant case because: .

a. Chief counsel, Peter Hearn, is scheduled to commence

a three week trial in the United States District Court on

December 7, 1964 and is so extensively engaged in prepa-

ration of that case that he cannot devote sufficient time to

the final preparation of the Jurisdictional Statement re-

quired in the above captioned case.

b. Additional counsel, Paul J. Mishkin has agreed with-

in the last three days to enter his Appearance and to take

part in the appeal; additional time is needed to discuss all

aspects of the appeal with additional counsel.

Wherefore, petitioner respectfully requests that the Chief

Justice of the Supreme Court of Pennsylvania extend the

time until January 15, 1965 in which to docket the appeal

(fol. 114] of the above captioned case to the Supreme Court

of the United States and to file the Record thereof with the

Clerk of that Court.

Respectfully submitted,

Gerald W. Spivack, For Peter Hearn.

[fol.115] Duly sworn to by Gerald W. Spivack, jurat

omitted im printing.

62

[fol. 116]

Per Curiam 11/24/64

Petition granted.

11-25-64 Counsel & Clerk of U. S. Supreme Ct advised

Peter Hearn, James C. N. Paul, Paul J. Mishkin,

Pepper, Hamilton & Scheetz, Attorneys at Law,

2001 Fidelity-Philadelphia Trust Building, Phila-

delphia, Pa. 19109.

[File endorsement omitted]

[fol.117] Deputy Prothonotary’s Certificate to foregoing

paper (omitted in printing).

[fol]. 118]

SupreMeE Court oF THE UNITED STATES

No. 831—October Term, 1964

Jay Graccio, Appellant,

v.

PENNSYLVANIA,

Appeal from the Supreme Court of the Commonwealth

. of Pennsylvania, Eastern District.

Orper Notine PropaBLe JuRispiction—May 24, 1965

The statement of jurisdiction in this case having been

submitted and considered by the Court, probable jurisdic-

tion is noted and the case is placed on the summary calen-

dar.