Rosenberger v. Commonwealth , 118 Pa. 77 ( 1888 )

Opinion,

Me. Justice Paxson :

It is seldom that a case comes before us with so little merit as this. The plaintiff in error was convicted of larceny in the court below, and now asks us to relieve him from the effect of his crime, because he says that it appears from the face of the indictment that the offence was barred by the statute of limitations.

The larceny was committed on the night of April 3, 1883. The property stolen consisted of a quantity of hams and pork, which was found concealed in a closet in the defendant’s house. When arrested the defendant induced the officer to remove his handcuffs, on the pretence of changing his clothing and took advantage of this indulgence by jumping out of the window. He then fled to the state of Ohio, where he remained for about three years. While there he sent on the sum of $234.70 to this state to get the prosecution settled. This effort failed, and shortly thereafter the bill of indictment against him was surreptitiously taken out of the proper office and has not since been found. It was probably stolen. A new indictment was found upon which lie was tried.

This is not a savory record, yet it is our duty to examine it and give the defendant his legal rights under it. This we now proceed to do.

The information upon which the defendant was re-arrested after his return to this state, states distinctly that, for three years and upwards immediately succeeding the commission of said offence, he was not a resident of this state. The indictment upon which he was tried contains two counts. The first count charges larceny; the second, receiving the property with guilty knowledge. Then follows a distinct averment,substantially in the language of the exception in the statute of limitations, that the said P. H. Rosenberger (plaintiff in-error) for three years and upwards, immediately succeeding' the commission of the offence aforesaid, was not an inhabitant of the state of Pennsylvania or a resident therein, but was anon-resident of said state and only returned to said state in> August, 1886, etc. Upon the trial a nolle prosequi was-entered upon the second count, and the trial proceeded' upon, the first count only, with the result as before stated.

It will thus be seen that both upon the information and the indictment the exception in the statute is distinctly stated. That it is not in the body of the first count, is not material. It is as applicable to the one count as the other. The pleader has first set forth the offence, and then the facts which take the case out of the operation of the statute. No. reasonable objection can be taken to this form of pleading. The question of the statute of limitations is without merit.

The court allowed an amendment in regard to the ownership of the property stolen. This was harmless, and moreover is expressly authorized by act of assembly.

It was also urged that no conviction could be had upon the second indictment so long as the first, the missing indictment, was undisposed of. There is no merit in this. If both indictments had been in court, the defendant could have been tried upon either.

The judgment is affirmed and it is ordered that the plaintiff in error surrender himself forthwith to the proper authorities of Armstrong county, in order to serve out his sentence as imposed by the court below.