Commonwealth v. Evans , 1915 Pa. Super. LEXIS 127 ( 1915 )

Opinion by

Trexler, J.,

The defendant is a practicing physician and as such was charged with failing to make report of a case of diphtheria which he treated. Section 1 of the Act of May 14, 1909, P. L. 855, makes it the duty of every physician practicing in this commonwealth who shall treat or examine any person for or afflicted with diphtheria to forthwith make a report in writing to the health authorities of the township, city or borough, giving in the report certain facts in regard to the case. The defendant was convicted before the alderman and having obtained the proper allocatur appealed the case to the court of quarter sessions, which, after hearing without a jury sustained the conviction.

Two facts appear in the testimony. The case treated was diphtheria and the doctor failed to report the case. The two elements essential to conviction were present. The defendant interposed the defense that he did not know the disease was present. Whether his explanation was credible was to be determined by the justice and the court respectively and both came to the conclusion that the defendant was guilty. We are satisfied that upon the merits, the conviction of the defendant was just. However, the consideration of the testimony is unnecessary on our part. The proceeding being a summary conviction and not according to the course of the common law, the case comes before us as if on certiorari: Ruhlman v. Com., 5 Binney, 24; Diamond Street, Pittsburg, 196 Pa. 254; Venango Co. Licenses, 58 Pa. Superior Ct. 277, and Com. v. Layton, 45 Pa. Superior Ct. 582. We are therefore not concerned as to the testimony in the case, but our inquiry is limited as to the regularity of the proceedings. In this view of the case there are but two matters left for us to consider.

The first is the claim of the statute of limitations. The Act of June 18,1895, P. L. 203 is “an act to provide for the more efficient protection of the public health in the several municipalities of this commonwealth,” and as amended by the Act of April 22,1903, P. L. 244, provides that suit for the recovery of the fine for violation of the act must be commenced within sixty days from the commission of the offense and not afterwards. The Act of May 14, 1909, Pi L. 855, under which the defendant was convicted is “an act to safeguard human life and health throughout the commonwealth, by providing regulations for the control of certain communicable diseases and the prevention of infection therefrom, and prescribing penalties for the violation of said regulations.” The latter act specifically repeals various sections of the act of 1895 leaving but the title, the enacting clause and secs. 12, 20 and 21. Section 12 requires principals of schools to refuse admission of children, except upon certificate of a physician. Section 20 relates to members of boards of health and sec. 21 provides a penalty for the violation of the provisions of the act and as amended by the Act of 1903, P. L. 244, requires prosecutions to be brought within sixty days after the offense has been committed. It is argued that these two acts being in pari materia the limitation of sixty days within which suit must be brought applies to the latter act. To this we cannot assent. The act of 1909 does not purport to be an amendment of the act of 1895. It provides a complete system in itself, places new penalties upon its violation and repeals practically the entire act of 1895 except as above noted. The act of 1895 is therefore left with its unrepealed sections and the penalty for its violation can still be invoked as against those who offend against the sections which still remain. We know of no rule or construction which would take a provision of the penalty clause, which as we have stated can still be invoked under what remains of the old act and incorporate it into the act of 1909. There is certainly nothing to indicate that the legislative mind contemplated any such result.

The other matter is the question of costs. The justice of peace who sentenced the defendant imposed the costs upon him although the act of 1909, supra, under which he was sentenced provides merely for the imposition of a fine, and imprisonment in default of payment and says nothing as to costs. The defendant argues that as no costs are mentioned in this act none can be imposed. We think, however, that in our state, the rule prevails that the conviction of the defendant renders him liable to the payment of costs. The costs follow the judgment, and are incident to it. None of the penalties mentioned in our Criminal Code, March 31, 1860, P. L 382, specifically include costs. At common law the defendant was liable for costs after indictment found, whether he was convicted or acquitted on the trial: Com. v. Horner, 34 Pa. 440, and it was not until the acts of September 23, 1791, 3 Sm. Laws, 37, and of March 20, 1797, 3 Sm. Laws, 281, were passed, that the defendant when acquitted was relieved of this duty. The preamble to the act of 1797 recites that the defendant when acquitted is “equally liable to costs of prosecution as if he were convicted.” This was the case as to defendants charged with crime before a justice of the peace and acquitted, and sec. 13 of the act of 1791, supra (still in force, Lehigh Co. v. Schock, 113 Pa. 373) was passed to cure this evil. These acts left the defendant upon conviction still liable for costs. We think this rule applies to defendants whether convicted of crimes which are indictable or of offenses which are tried in summary manner without a jury.

Furthermore by a general law, the Act of April 17, 1876, P. L. 29, the legislature has given the court jurisdiction of the costs in summary convictions. That act provides “that upon the allowance of an appeal in cases of summary conviction the appeal shall be upon such terms as to payment of costs and entering bail as the court allowing the appeal shall direct.” The general practice in such cases is to require the defendant to enter bail for the costs which have accrued and which may accrue to be paid if the conviction is sustained. It would be an anomaly to hold that a defendant who does not appeal need pay no costs, and one who appeals and is convicted must pay them. We conclude that the defendant having been convicted is liable for the costs.

All the assignments of error are overruled and the order of the court is affirmed. Appellant for costs.