Commonwealth v. Borden , 1869 Pa. LEXIS 163 ( 1869 )

The opinion of the court was delivered, May 11th 1869, by

Agnew, J.

The power of justices of the peace in summary convictions is viewed with some strictness by English writers, as being in derogation of the trial by jury: 1 Burns’s Justice 343, title Conviction; 4 Black. Com., 280 — 282. Therefore, says Richard Burn, it must appear that he hath strictly pursued that power, otherwise the common law will break in upon and level all his proceedings. In this state recent cases exhibited less jealousy of it, though an entire relaxation of form is not justified: Commonwealth v. Burkhart, 11 Harris 521; Van Swartow v. Commonwealth, 12 Harris 131. It does not seem, however, that any of the essentials of a summary conviction have been yielded. According to Búrn, supra, these are, that there must be an information or charge against the person, then he must be summoned or have notice of such charge and have an opportunity to make his defence; and the evidence against him must be such as the common law approves of, unless the statute expressly directs otherwise; then if the person is found guilty there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by the statute; and in conclusion there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstances, so as if he be called to account for the same by a superior court it may appear that he has conformed to the law, and not exceeded the bounds prescribed to his jurisdiction. All this is reasonable, and seems to be as necessary to bound arbitrary power, and prevent oppression and injustice to the citizen of a republic, as to the subject of a crown.

Without indulging a criticism too refined upon the form of the proceeding, or requiring too much nicety to support a conviction, we think these substantive requisites should appear in each case, and the record before us be determined by this rule. The acts prohibited in the 6th, 7th and 8th sections of the Act of 9th April 1760, 1 Smith’s Laws 229, are made criminal offences, punishable upon conviction before a justice of the peace. The proceeding is not by a qui tam action of debt, notwithstanding a moiety of the penalty is given to the informer. The act itself directs the proceeding to be by conviction, and it is therefore properly brought in the name of the Commonwealth: Commonwealth v. Wolf, 3 S. & R. 48; Van Swartow v. Commonwealth, 12 Harris 131. “ Convictions are always on the prosecution of the state:" Carlisle v. Baker, 1 Yeates 472. This being the nature of the proceeding, it confers authority to proceed by a warrant of arrest or a summons at the discretion of the justice. The power to arrest is laid down to attend all offences which justices of the peace have authority to punish by statute: 4 Black. Com. 290; 2 Hawk. P. C. Ch. 13, § 15; 4 Burns’s Justice, 367; 1 Chitty’s C. L. 336. It is necessary to prevent the escape of transient and irresponsible persons; and yet should be exercised with caution and moderation. Where the person is a householder or well-known inhabitant not likely to flee, the better course is to proceed by summons unless it is otherwise directed by the statute.

The next objection is that the evidence was not recorded and returned with the writ of certiorari, for examination and review by the court. On this point the English cases observe great strictness; and in our own we have never held that less than the essential parts or particular substance of the whole testimony should be set forth: Rex v. Vipont, 2 Burrows 1163-5; Rex v. Killett, 4 Burrows 2063; King v. Lovet, 7 Term R. 152; King v. Clarke, 8 Id. 220; Mayer v. Mason, 4 Dallas 266; Commonwealth v. Burkhart, 11 Harris 521; Van Swartow v. Commonwealth, 12 Id. 131; Commonwealth v. Nesbit, 10 Casey 398. Eollowing this rule we cannot say that the record is insufficient, without requiring a strictness which would defeat most summary convictions. It sets forth the witnesses by name, that they were duly sworn, examined and cross-examined, what their testimony in substance was, and that no testimony was offered or produced by the defence. Had the justice merely set forth what he considered was the effect or the result of the evidence, it would have been insufficient according to some of the authorities cited above. But he gives the substance of the testimony itself. “ Substance,” says Webster in his unabridged Dictionary, is the “ essential part, the main or material part.” The same use of the word is made in Cooper v. Bruce, 2 Watts 107, where it is held that in an action of slander the particular substance of the words spoken must he laid in the declaration, and not their mere effect. In the present case the substance set forth appears to be essentially what witnesses would be expected to say on the subject, and sufficiently defines and proves the statutory offence, and is therefore sufficiently stated.

The next objection is the multiplication of the statutory fine by the number of the birds shot at and killed; and not by the number of distinct acts of shooting. The 7th section of the Act of 9th April 1760, enacts, “ That no person whatsoever shall presume to shoot at or kill with a firearm any pigeon, dove, partridge or other fowl, in the open streets of the city of Philadelphia or in the gardens, orchards and enclosures adjoining upon and belonging to any of the dwelling-houses within the limits of the said city, or suburbs thereof, or any of the boroughs or towns within this province, upon the forfeiture of forty shillings for every such offence, to be convicted in manner aforesaid.” We agree with the defendant that the act of shooting with a firearm is the dangerous offence intended to be prohibited, Whether the party shoots at and misses the bird, or shoots and kills it, and the penalty is therefore to be measured by the number of shots, and not the number of birds killed. Many birds might be killed at a single shot.

But the proof of the witnesses here is that “ they heard and saw Charles Borden shoot at and kill four doves at different times in said day,” &c., and the conviction is that “the said Charles did shoot at and kill in the said enclosure, &c., at different times during said day four doves.” We think this sufficiently proves and adjudges that he shot at different times, as well as killed four doves, so that he must have made four different shots. It is true he might have shot oftener at the doves and missed sometimes, but as he is adjudged to pay the penalty of only four shots he cannot complain of this as an error.

There is no error in not stating in the conviction and judgment the alternative duration of imprisonment to be suffered on failure to pay the forfeiture or furnish a sufficient distress. ■

The act makes the imprisonment a part of the warrant to levy the forfeiture, but not a part of the sentence or judgment. The warrant must set forth the alternative imprisonment according to the sum of the forfeiture adjudged.

The Act of 1760 is not obsolete in respect to this offence. If it were it would be also as to all the offences contained in the 6th, 7th and 8th sections, which is not the case. Those parts of the act relating to hunting in Indian territory are obsolete, because they have no subject to act upon.

In the whole proceeding before the justice we find no error, and the judgment of the Court of Common Pleas reversing and setting aside his proceedings is therefore reversed, and the proceedings and judgment of the justice are affirmed, and the record is ordered to be remitted with a direction to proceed to collect the forfeiture if the same be not paid.