Commonwealth v. Bradley , 1901 Pa. Super. LEXIS 109 ( 1901 )

Opinion by

Rice, P. J.,

The indictment in this case contained three counts: the first charging Bruce, alias John, Slavin with feloniously shooting at one George W. Kepler with intent to kill and murder; the second charging that this defendant, Robert Bradley, “ before the commission of the said felony of shooting at the said George • W. Kepler with intent as aforesaid, did maliciously and feloniously incite, abet, move, procure, help, aid, counsel, hire and command the said Bruce, alias John, Slavin the said felony, in manner and form as aforesaid, to do and commit; ” the third charging Slavin with wantonly pointing a pistol at Kepler. The defendant was tried separately and a general verdict of guilty was rendered against him.

1. As Bradley had a separate trial, we cannot see that this joinder was prejudicial to him in any way, or that it would have furnished a valid reason for quashing the indictment. Clearly it could not be pleaded in arrest of judgment. In Commonwealth v. Gillespie, 7 S. & R. 469-477, Mr. Justice Duncan said: “ Nor is the objection maintained that several persons could not be severally indicted in the same bill for separate offenses. For though it might be in the discretion of the court to quash such indictment, yet it cannot be taken advantage of in arrest of judgment; for they are considered as several indictments in point of law.”

2. A motion in arrest of judgment must be based on some matter appearing on the record. A variance between the information upon which the warrant issued and the indictment is not such matter. Nor where the defendant has gone to trial without raising the objection is it a valid ground upon which to base a reversal of the judgment upon appeal.

3. Presumably the defendant was found guilty on the second count, which, alone, charged him with an offense; and it is well settled that if there is one count in the indictment which will sustain the sentence, it cannot be reversed: Commonwealth v. Prickett, 132 Pa. 371; Commonwealth v. Stahl, 1 Pa. Superior Ct. 496; Commonwealth v. Landis, 13 Pa. Superior Ct. 134. Is the second count sufficient to sustain the conviction ? Section 44 of the criminal procedure act of 1860 provides: “If any person shall become an accessory before the fact to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, convicted and punished in all respects as if he were a principal felon.” It is practically conceded by the defendants’ counsel that notwithstanding this provision an accessory before the fact may be charged in the indictment as such or as a principal, but he strenuously contends that he cannot be tried and convicted as if he were a principal felon unless he be indicted as a principal. Pursuing the argument to its logical result, it would compel us to hold, that if the indictment formally charges the defendant as an accessory before the fact, the foregoing section does not apply; but the case is governed by the rules of the common law, and amongst them the rule that an accessory before the fact cannot be tried before conviction or outlawry of the principal. We are unable to accede to a construction of the section which would lead to such a result. Speaking of this section the revisers said: “ The new principle in the section is that which makes the accessory before the fact guilty of a substantive offense, and which subjects him to punishment for his crime, without postponing it until the conviction of the actual perpetrator ; or, more precisely speaking, which abolishes, in felonies, the technical distinction now existing between accessories before the fact and principal offienders: ” Report on the Penal Code. The enforcement of this “ new principle ” which this section introduced into the criminal law cannot, by any fair construction, be made to depend upon the form of the indictment. “ In all cases of felony, therefore, the accessory is punished in the same manner precisely as the principal felon; and he may now be indicted either as a principal — -that is he may be charged in the indictment with having actually committed the offense as principal in the first degree — or he may be indicted for a substantive felony, or he may be indicted as accessory with the principal, at the option of the prosecutor: ” 1 Archbold’s Crim. Prac. 71, quoted with apparent approval in Brandt v. Commonwealth, 94 Pa. 290. Such has been the construction put upon the English statute of which the 44th section of our act is a transcript; it is in harmony with the spirit of the law and not in conflict with its letter. All the confusion that has arisen in this case would have been avoided if the defendant had been indicted as a principal in the simple and usual method; but under our statute, whichsoever of the three methods above suggested of indicting an accessory before, the fact is adopted, he may be convicted without alleging or proving the prior conviction of the principal.

4. It is urged further that the defendant could not be convicted under an indictment formally charging him as an accessory before the fact, because the evidence showed that he was present when Slavin fired the shots. Whether under our statute the defendant in such indictment can be convicted without proof that there was a principal, is a question which we need not discuss, for in the present case the proof was full upon that point. Nor is it important in whose mind the criminal thought originated; if in the principal’s, a man may become an accessory before the fact by encouraging him in it: 1 Bishop’s Crim. Law, sec. 675. In stating the distinction between a principal and an accessory before the fact, it is sometimes said that to constitute a man an accesso^, it is necessary that he be absent at the time when the felony was committed. “Yet,” as stated by Mr. Bishop, “ by separate acts, a man may make himself both principal and accessory in the same felony; as by commanding another to kill a third person, whereby he becomes an accessory when the murder is done; and afterwards joining with the person commanded in doing it which makes him also a principal: ” 1 Bishop’s Crim. Law, sec. 664. After a careful examination of the evidence we cannot say that a jury would not have been warranted in convicting the defendant on the second count of the indictment, even if he had not been present at the very moment when the shots were fired by Slavin. Therefore, applying the principle last referred to, and bearing in mind the provisions of our statute, we conclude that the fact of his presence would not bar a conviction. To hold otherwise would be to restore the least meritorious of the technical distinctions between accessories before the fact and principals.

5. As to the remaining questions raised on the argument of this appeal we remark, that the record before us shows ño exception to the charge before verdict, and no request or order before verdict that it be filed. Therefore, as was said in Curtis v. Winston, 186 Pa. 492, andas has been held in many of the late cases, “ there is no charge lawfully of record for our consideration.” We remark in addition that if, as is earnestly argued, the verdict was contrary to the instructions of the court — a perverse verdict — the defendant’s remedy was by a motion for a new trial. It was not in the court below, and is not in this court, ground for arresting the judgment. And, as the refusal of the court to grant a new trial is not ordinarily assignable for error, and is not so assigned in the present case, we refrain from any discussion of that ruling.

All the assignments of error are overruled, the judgment is affirmed and the record is remanded to the court below, to the end that the sentence be carried into effect.