The opinion of the court admits that the testimony on the trial of the appellant was insufficient to sustain a conviction on the indictments charging extortion and the levying of blackmail. I am unable to agree that the refusal to withdraw these charges from the consideration of the jury did not prejudice the defendant. He was convicted on all the indictments and it is not easy to measure the cumulative effect of the evidence with respect to those charges upon the remaining bills of indictment. If there is any doubt as to whether their submission to the jury prejudiced or injured the defendant in any way, he is entitled to the benefit of the doubt.
With these indictments eliminated, the only charge remaining against the defendant was malfeasance or misdemeanor in office, consisting in his refusal to permit the prosecutor, Williams, to waive a summary hearing under the provisions of section 33 of the Act of June 30, 1919, P.L. 678, as amended by the Act of May 16, 1921, P.L. 582, and give bond for his appearance before a judge of the court of quarter sessions; and in his proceeding to hear and to adjudge the case.
The constitutionality of that portion of section 33 of the Motor Vehicle Act above mentioned, which authorizes a defendant to waive a summary hearing before a justice of the peace and give bail for trial before a judge of the court of quarter sessions, is not, in my mind, so clear as to justify its being waived aside in the casual manner adopted by the court below. It seems to me that section 14 of article V of the Constitution clearly shows the intention of its framers that minor offenses not amounting to misdemeanor should be summarily heard before a justice of the peace or other court not of record, with a right of appeal to a court of record; but only upon special allowance of that court. The provision of the Motor Vehicle Act under consideration makes it optional with the defendant *Page 15 whether the summary hearing should be held before the justice of the peace or before a judge of the court of quarter sessions. The Constitution secures a right of appeal from a summary conviction, upon allowance by the appellate court, and it has always been held that on such appeal the case is heard de novo on the evidence submitted before the court to which the appeal is taken. Just how such an appeal can be taken from a judge of the court of quarter sessions is not apparent to me. The act creating the Superior Court provides that all appeals from the court of quarter sessions shall be taken to this court, but no provision is made for the hearing of testimony in this court, and such has never been its practice. The clause of the Motor Vehicle Act in question runs counter to the constitutional provision that summary hearings are to be held before a magistrate or court not of record, with appeal, on allowance, to a court of record.
The second, fifth and seventh assignments of error should certainly be sustained, requiring a new trial; and, in addition, I think the provision of the Motor Vehicle Act above referred to is unconstitutional and, if so, the defendant was guilty of no malfeasance whatever and should have been discharged.
Judge HENDERSON joins in this dissent.