Commonwealth v. McMahon , 1900 Pa. Super. LEXIS 95 ( 1900 )

Opinión by

Orlady J.,

The defendants were indicted and tried in the court of quarter sessions of Allegheny county and found guilty under an indictment founded upon the 138th section of the act of March 31, 1860. The jurisdiction of the court was not questioned in any manner until after verdict, when a motion in arrest of judgment was filed, in which it was urged that the offense laid in the indictment was exclusively triable in the court of oyer and terminer, by reason of the 31st section of the criminal procedure Act of 1860, P. L. 427, paragraph 4, which provides that said court shall have exclusive jurisdiction and power to try and punish all persons charged with the crime of “ voluntarily and maliciously burning any building, or other thing made punishable in the same manner as arson.”

In the decision of this case it is not necessary to follow the reasoning of the learned counsel of appellant, as the case was properly disposed of on other grounds. A general plea of not guilty was entered and the trial proceeded without any objection that the court in which the defendant was being tried did not have jurisdiction. The record does not show that he was in any way harmed. If the question had been raised when the plea was entered, if the position taken by the defendant counsel is correct, the case would have been certified to the oyer and terminer for trial as both courts were being held before the same judge and jurors, and the records of both are kept by the same officers. The defendant did not complain that any right was denied him, and it is urged by the appellee and not denied by the appellant that it has been the universal practice of the criminal courts of Allegheny county to try such offenses in the quarter session under authority of Com. v. McConnell, 2 Pitts. Rep. 210, in which it was held, viz : “It appears at all events that the offenses enumerated in section 137 are alone declared to be arson and that those enumerated in section 138 are not arson with us since the enactment of the code, whatever they have been before, but are now misdemeanors only. It is evident too, that the legislature considered the crime of arson in section 137 as more heinous, and to be punished with much greater severity than the misdemeanor provided for under section 138, although the punishment is the same in kind it is not the same in degree. The wilful and malicious burnings described in section 138 are punishable, not in the same manner as arson but in the same manner as misdemeanors are punishable; and it cannot, therefore, be said with strict propriety, that the offenses described in these two sections are punishable in the same manner. It appears to me, therefore, that according to the spirit and intent of the law, every species of burning described and enumerated in section 138 is properly cognizable in the court of quarter sessions.” The defendant voluntarily submitted his case to the quarter sessions in the hope of securing an acquitalin that court, and he has not been in any degree prejudiced.

Our province is not to look for errors merely in order to reverse, but to look for merits in the cause of reversal, and when we find the court below has done no more than it could rightly do, and when what it did infringes no right or substantial interest of the prisoner, we ought not to send back for retrial a cause already fully, fairly and justly determined: Brown v. Com., 78 Pa. 122; Com. v. Gibbons, 3 Pa. Superior Ct. 408, 414; Shillito v. Shillito, 160 Pa. 167.

During the argument of the district attorney to the jury a controversy arose between counsel for defendant and for the commonwealth as to an alleged misstatement of a matter claimed to be material, when the court directed counsel for defendant to withhold any corrections of alleged misstatements until the close of the district attorney’s argument. We do not have before us the statements of the district attorney, and even if they were on the record we could not tell, without an analysis of the whole testimony whether they are misstatements or improper inferences. It is peculiarly the discretionary duty of the trial court to see that the trial is conducted in a legal and orderly manner, and unless that discretion is abused, such an order is not the subject of an appeal. An opportunity was given the counsel for the defendant to reply and explain the alleged misstatements. When counsel transgress in such a matter, it is for the consideration of the court below, either in the charge to the jury or on a motion for a new trial: Com. v. Zappe, 153 Pa. 498 ; Com. v. Windish, 176 Pa. 167; Com. v. Eisenhower, 181 Pa. 470; Com. v. Smith, 2 Pa. Superior Ct. 474.

The first and second specifications of error were not pressed and the third and fourth are overruled. The judgment is affirmed.