Sperling Tobacco Co. v. Trischitti , 9 Pa. D. & C. 625 ( 1927 )

McLean, J.

Defendant was indicted upon the charge of (1) larceny and (2) receiving stolen goods, to wit, 110 cartons of cigarettes of a value of ?5000, property of the Sperling Tobacco Company. Upon conviction upon :he second count, the court imposed the following sentence: “To pay a fine if $50, to pay the costs of prosecution, restore property stolen, if not already restored, or pay full value to owner, . . . and that he stand committed until ;his sentence is complied with.”

Thereupon this sentence was certified by the clerk of the courts to the lourt of Common Pleas and judgment entered thereon, and thereafter, upon iraecipe of attorney for the Sperling Tobacco Company, the record was imended so as to join the Sperling Tobacco Company as party plaintiff, and ipon affidavit of ownership and value of property stolen and received by lefendant, the prothonotary was directed to assess damages, which was .ccordingly done, and judgment entered for plaintiff in accordance therewith or the sum of $7360, with interest from the date of the taking, in all $7558.48.

Defendant has obtained rule to strike off judgment for the reason that it ras entered without warrant in law. Plaintiff contends that this procedure 3 authorized under the Act of May 8, 1901, P. L. 143, which provides in part s follows:

“Section 1. Be it enacted, etc., that where any Court of Quarter Sessions f the Peace or Court of Oyer and Terminer of this Commonwealth has here-ofore made or entered, or shall hereafter make or enter, any order, sentence, ecree or judgment for the payment of any moneys whatsoever, in any matter r thing within the jurisdiction of the said court, a copy of the said order, entence, decree or judgment may be certified to any Court of Common Pleas f the same county and be entered and indexed in said court as a judgment fith like force and effect as if the same had been recovered therein as a judg-lent of the latter court.”

A close scrutiny of the provisions of the Act of 1901, supra, reveals that illy such order, sentence, decree or judgment of the Court of Quarter Ses-ions or Oyer and Terminer as provides for the payment of any moneys what-iever may be certified to the Common Pleas. The sentence in the instant ase, in conformity with the provisions of the Act of March 31, 1860, §_ 179, . L. 382, was “to restore the property stolen, if not already restored, or pay filue to owner.”

The verdict of guilty upon the count of receiving did not find the value oí the stolen property, nor was this necessary: Com. v. Butler, 144 Pa. 568 Clearly, the authority to impose sentence requiring restitution of the property, or to pay the value thereof, carries with it the power to fix the value tc be paid; otherwise, the sentence in this regard, to wit, to pay the value thereof, would be a nullity. In accordance with the inherent authority so to do, pending the disposition of this rule, the sentence imposed was amended by the court so as to fix the value of the stolen property by the following order:

“Now, July 1, 1926, it appearing to the court that on Feb. 24, 1926, the court sentenced defendant, Rosario Trischitti, to pay a fine of $50, pay the costs of prosecution, restore property stolen or pay value thereof to the ownei and undergo imprisonment in Luzerne County Prison for an indeterminate term, the minimum to be one year, the maximum to be two years, and tha; he stand committed until sentence is complied with, and the court’s attentioi having been drawn to the fact that we did not state the value of the propert; stolen, as disclosed upon the trial of the case and as to which there was n denial, upon motion of the district attorney, we do hereby declare that th value of the property stolen, to wit, thirty cases of cigarettes, was $1728.”

We find no authority for the proceedings instituted by plaintiff to fix th< value of the stolen property, to wit, the assessment of damages by the pro thonotary, and accordingly the judgment predicated upon these proceeding! is struck off, without prejudice, however, to the right of plaintiff to have certi fled to the Court of Common Pleas the amended sentence and to have sam< entered and indexed in said court as a judgment with like force and effect a if the same had been recovered therein.

Rule to strike off judgment absolute.

From Frank P. Slattery, Wilkes-Barre, Pa.