Commonwealth ex rel. v. Johnston , 1902 Pa. Super. LEXIS 76 ( 1902 )

Opinion by

Rice, P. J.,

It appears by the petition and answer that the petitioner is now confined in the western penitentiary by virtue of commitments in execution of judgments ,of the court of quarter sessions of Allegheny county upon three several indictments’, laid on different days, each of which charged that the petitioner “ with force and arms, feloniously did wilfully and maliciously enter the building of the Carnegie Steel Company, an association of limited partnership under the laws of this state, there situate, with intent to commit a felony in said building, contrary to the form,” etc. The petitioner claims that he is being unlawfully restrained, and is entitled to discharge upon habeas corpus, because the indictments upon which tlie judgments were entered charged no offense indictable under the common law or the statute law of Pennsylvania.

It is apparent upon inspection of the copies of the indictments set forth in the petition that the crime intended to be ©barged was that prohibited by section 2 of the Act of April 22, 1863, P. L. 531. The defendant could not fail to understand that this, was the specific charge he was called upon to meet. In this material particular the case differs from Hollister v. Commonwealth, 60 Pa. 103, where the Supreme Court, said: “Tt would not do to hold a defendant convicted on an indietment in form for burglary, strictly, liable to be sentenced under this section (136) by changing, the averments, or assuming them to he so changed to suit, the conviction.” The section,, so far as material here, reads as follows: “ If any person shall, in the day time, break and enter any dwelling house, shop, warehouse, store, mill, barn, stable, outhouse or other building, or wilfully and maliciously, either by day or by night, with or without breaking, enter the same, with intent to commit any felony whatever therein, the person so offending shall be guilty of felony,” etc. It cannot be successfully claimed that this crime cannot be committed in any other building than those specifically mentioned. It is too plain for argument, that the word “ building ” was inserted in the act for a purpose, and cannot be struck out by judicial construction. The question is, whether the omission to specify in the indictment tlie charactei', or other description, of the building is such a defect as vitiates the judgment. It is to he noticed that this is a statutory crime, that is to say, the crime that is prohibited is defined by the statute.

In discussing this question, we are not to be understood as passing on the sufficiency of an indictment in the' case of a statutory prohibition, of a common-law offense, by name, without further description., as for example, larceny, where the statute does not define what larceny is. Where, the. offense is purely statutory, having no, relation t.o the. common law- — where,, in other words, the statute specifically sets out what acts shall constitute, the offence, — it, is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the. statute, without any further expansion of the,- matter; 1 Bish. Cr. Proe. sec. 611. This, principle is embodied in section 11 of the criminal procedure act of 1860, which provides that every indictment shall be deemed and adjudged sufficient and good in law which charges, the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment if any such there; he. This rule, as applied by the. courts of this commonwealth works no hardship and infringes no constitutional right of the aer cusecU for, whenever one before trial needs more specific, information than is. contained in the indictment, to enable, Mm to make just defense, it may be, obtained on. proper, application to the court, for. a bill of particulars.: Williams v. Commonwealth, 91 Pa. 498 ; Commonwealth v. Buccieri, 15.8 Pa, 585, 547; Commonwealth v. New Bethlehem Boro,, 15 Pa. Superior Ct. 158, 164, and cases there cited. This is none the less true because the application for a hill of particulars is addressed, to the sound discretion of the. court. The remedy for the correction of formal defects in an indictment, is by demurrer or motion to quash before the swearing of the. jury “and not afterwards, and every court, before whom any such objection shall he taken for any formal, defect, may, if it he thought, necessary, cause the indictment to he amended in such particular, by the clerk or other officer o± the court, and thereupon the trial shall proceed as if no such defect appeared: ” Section 11 o.f the criminal procedure act of 1860. But if the accused elects to take issue on the merits and is condemned, “ there seems neither moral nor legal fitness in permitting him to urge formal exceptions, which, if suggested at an early period,, would have been promptly corrected: ” Report on the Penal Code.

The same, principle applies with equal force, where, the indictment, although drawn in the very words of the act and free from any formal defect, fails to give the information which the accused thinks he ought to have to enable him to make just defense. As already shown he has his remedy, and it is adequate. These indictments charge all the essentials of the crime, and in describing the place entered as the “ building” of the Carnegie Steel Company, they use the word that is used in the statute. There was, therefore, not only substantial, but literal, compliance with the provisions of section 11 of the criminal procedure act. If the omission to specify what kind of a building this was, where it was situated and to what uses it was put, was a defect, it was at the most only a formal defect, and was amendable. As to the general rule that formal defects, not objected to before swearing the jury are cured by the plea and cannot afterwards be taken advantage of, it is unnecessary to cite authorities. But we may appropriately refer to the case of Commonwealth v. Newcomer, 49,Pa. 478, which is directly m point. There the court arrested the judgment because in its opinion the “ agent ” as used in section 114 of the penal code was limited to one who follows the business of an agent, a professional agent, and because the indictment did not so describe the defendant. The case was taken to the Supreme Court on writ of error and the question above suggested was elaborately argued by counsel, but the court said, that, in view of the fact that the indictment was drawn in the very words of the act describing the crime and the criminal, “ it was difficult to see how the question argued here could be raised upon writ of error when we have nothing but the indictment before us.” Upon this ground, and without deciding the question, the court held that it was error to arrest the judgment.

Pursuing the same course of reasoning that was followed in that case, we may conclude the discussion by saying, that the indictments are not defective in substance, and if defective in form, the defect was cured by the plea; and that, if the evidence given on the trial did not show that the place which was entered with felonious intent was a “ building ” within the meaning of the statute, the defendant’s remedy was by' request for binding instructions, exception to the ruling, if the request was refused, and appeal, or by motion for new trial, The indictments being sufficient on their face to give the court jurisdiction to enter the judgments, we must presume in this proceeding that all the issues of law and fact were correctly decided.

It follows that as no probable cause is shown for believing that the petitioner is restrained of his liberty unlawfully or against due course of law, the rule must be discharged.

Rule discharged.