Commonwealth v. Carson , 166 Pa. 179 ( 1895 )

Opinion by

Me. Justice McCollum,

The defendants moved to quash the indictment, alleging in support of their motion that it was not authorized by or in conformity with the information, that it did not state in what coqnty the offences were committed, and that the counts were repugnant. The learned court below, without expressing any opinion in regard to these objections, quashed the first count on the ground that it did not state whether the offence charged in it was committed “in the night time or in the day time,” and sustained the second count. It may be inferred from this ruling that the court did not consider the objections tenable, and such an inference would accord with our conclusion based on an examination of the information and the indictment. It is manifest from the brief opinion filed that the court thought the first count was intended to charge the crime of burglary at common law or under the 135th section of the act of March 31, 1860, P. L. 415, or the offence defined by the 2d section of the act of April 22, 1863, P. L. 531. It is clearly defective as a count for burglary because in that it must affirmatively appear that the breaking and entering with felonious intent was by night. But is it not a good count under the act of .1863? That act prescribes a penalty for breaking and entering a dwelling house in the day time, and also for willfully and maliciously entering the same with felonious intent, “ either by day or by night, with or without breaking.” In this case a breaking and entering with felonious intent is charged, together with the larceny of the prosecutor’s goods in consummation of the purpose for which the entry was made. As we have already seen it is not material whether this offence was committed in the night time or in the day time. It is an offence under the act of 1863 and the punishment for it is prescribed by that act. It is the intent with which the entry was made and not the manner or hour of making it that is essential and controlling. We hold therefore that it is not necessary in an indictment under the act of 1863 for entering a dwelling house with felonious intent to state therein whether the offence was committed “ in the night time or in the day time.” The fact that the commission of the felony intended was also charged in the count that was quashed did not vitiate it. If it was deemed necessary to state therein the manner and hour of the entry the count should not have been quashed because it was obviously a good count for larceny.

In drawing an indictment under the statute it is well to use its language, but as “ feloniously ’’ includes “ maliciously ” the substitution of the former for the latter is not fatal to the count in which it appears. There was no misjoinder of counts because the matters charged in the second were a part of the affair to which the first related. The fact that the information did not contain as full and specific a statement of the offence as the indictment did, furnished no ground for quashing the latter or-either count of it. If there was room for surprise an applieacation for time to prepare to meet the graver charge would have been allowed.

The order quashing the first count in the indictment is re versed and a procedendo is awarded.