Commonwealth v. Beldham , 1900 Pa. Super. LEXIS 296 ( 1900 )

Opinion by

Orlady, J.,

The prosecution in this case was founded upon the return of the constable of Apollo. borough, who, under oath, made answer to questions which are regularly propounded to all such officers. He clearly specified the offense of the defendant, and gave the names of the witnesses who could prove the fact. Pursuant to a practice which prevails in many counties of the commonwealth, the constable’s return was delivered to the district attorney and a bench warrant was issued for the arrest of the defendant. An indictment was submitted to the grand jury before leave of court in writing had been obtained; this action of the district attorney was in accord with the local practice in such cases. A more orderly practice would be to have the court indorse on the indictment its approval of the submission to the grand jury. In this case the same judge, who had full knowledge of the fact that the court had under its unwritten rule authorized the action of the. district. attorney, subsequently made an order in writing sanctioning the submission of the indictment to the grand jury on the return of the constable, and in this there was no error.

The duty of the constable, the district attorney and the court in such cases is reviewed in McCullough v. Commonwealth, 67 Pa. 30, where it is said, “ But when the bill has been regularly sent up by the district attorney, under the sanction of the court, upon the return of a proper officer as in this case, the bill cannot be quashed except for matters appearing on the face of the record.” It was not sent up surreptitiously, but followed a practice approved by the court: Brown v. Commonwealth, 76 Pa. 319; Hartranft’s Appeal, 85 Pa. 433.

It is a power to be exercised, in the ordinary case, under the supervision of the court, and in all cases its exercise is subject to revision and approval by the court: Rowand v. Commonwealth, 82 Pa. 405. If the process is misapplied the court will vindicate itself in restraining its exercise, and the action of the officer and the court will be reviewed only when the abuse of discretion is found to be both manifest and flagrant: Commonwealth v. Green, 126 Pa. 531; Commonwealth v. Breden, 165 Pa. 224; Commonwealth v. Montross, 8 Pa. Superior Ct. 237.

The sixth assignment of error is without merit, as the inspection of the indictment, as indorsed by the district attorney, clearly shows that the name believed to be Frank N. Cuson is a clerical error for Frank Mason.

The indictment contains more than is required by the statute, but by the defendant’s second point which was affirmed, the issue was clearly confined to whether the article which he sold without a license was a spirituous, vinous, malt or brewed liquor, or an admixture thereof. In the body of its charge the court said: “Now the only question for you to determine in this case is whether that ‘ Ambrosia ’ that he sold there was a spirituous, vinous, malt or brewed liquor or admixture thereof,” and “ now gentlemen, if you find from the evidence in this case that this liquid that was sold by this defendant was vinous, spirituous, malt or brewed liquor or admixture thereof, then it would be your duty to find him guilty of the second count in this indictment; but if you find that this liquor that was sold by him was not such a liquor as is described in this act of assembly as vinous, spirituous, malt or brewed liquor or admixture thereof, it would be your duty to acquit him.”

The sales were clearly proved and there was sufficient evidence to show that the article sold was an admixture of spirituous, vinous, malt or brewed liquors, in a disguised form. The experiment to evade the law in this manner was a failure, and after a fair trial the defendant was rightly convicted. It was purely a question for the jury and there was abundant evidence to warrant the verdict: Hatfield v. Commonwealth, 120 Pa. 395; Commonwealth v. Reyburg, 120 Pa. 299.

The assignments of error are overruled and the judgment is affirmed.