Commonwealth v. Taylor , 1916 Pa. Super. LEXIS 29 ( 1916 )

Opinion by

Henderson, J.,

The defendant was convicted on the charge of maliciously breaking a gate on the land of I. N. Orndorff the prosecutor who owned land between the farm of the defendant and the public highway over which a right of way existed in favor of the defendant. The gate was erected by the prosecutor where a fence separated his land from the highway and across the way which had for many years been used by the defendant and his predecessors in title. The specific charge was that on the 30th day of August, 1914, the defendant threw down and drove over and broke a gate which the prosecutor had suspended between two posts where the right of way led out of his field onto a public highway. The first assignment of error relates to the refusal of the court to quash the indictment. The reasons assigned were: (1) that the justice refused to receive the testimony of the defendant and his witnesses at the hearing on the information; (2) that the transcript of the magistrate was not returned in full to the Court of Quarter Sessions; (3) that the transcript was not returned at the first term following the hearing before the justice; (4) that the record and recognizance were not certified to the court next held after the taking thereof. The record shows that the hearing before the magistrate was held on September 3, 1914, that a true bill was found September 8, 1914, that a continuance was granted the defendant to March Term, 1915, that on February 22, 1915, he obtained a continuance to June Term, 1915, and that the motion to quash was not presented until June 10,1915. On this state of the record the application to quash for the reasons set forth came too late. Where the complaint was with respect to matters of procedure preliminary to the finding of thé bill of indictment, it was the duty of the defendant to act promptly. It is too late after the indictment found to raise the objections presented on the motion to quash. If the first reason were substantial, defendant could have been heard on a proceeding to be .discharged from custody on the ground of an illegal commitment. The other grounds set up do not relate to the regularity of the arrest or the validity of the indictment, and do not support a motion to quash nor do we wish to intimate that the first reason suggested would support the motion. The indictment cannot be invalidated in the manner proposed: Commonwealth v. Brennan, 193 Pa. 567; Commonwealth v. Windish, 176 Pa. 167; Commonwealth v. Haines, 57 Pa. Superior Ct. 616. The second assignment covers the action of the court in admitting the record of the trial and conviction of the defendant more than twenty years before on a charge brought by the father of the prosecutor who was then the owner of the land for the malicious destruction of a gate and fence at the same place. The record of that case was admitted to show the defendant’s motive and for that purpose it was competent. The knowledge, intent or design of a party may be shown by acts similar to that charged in the indictment to establish guilty knoAVledge and purpose: Goersen v. Commonwealth, 99 Pa. 388; Commonwealth v. Hutchinson, 6 Pa. Superior Ct. 405; Commonwealth v. Benedick, 39 Pa. Superior Ct. 477; Wharton’s Criminal Evidence, (10th ed.) vol. 1, p. 1244. The court was not in error, therefore, in admitting the record for the restricted purpose stated.. The testimony included in the third assignment was offered to show malicious conduct of the defendant with reference to the gate at a time shortly before the occurrence on which the prosecution was based. This evidence was admissible to shoAV the defendant’s state of mind, the motive which actuated him, and to support the charge that the act for which he was indicted was performed unlawfully and maliciously. In the fourth and fifth assignments the court is charged with having misapprehended the testimony of the two witnesses therein named and it appears from an examination of the evidence that the learned trial judge was somewhat inaccurate in stating the testimony, but Ave are not persuaded that the defendant was prejudiced thereby. Moreover, it was the duty of his counsel to bring to the attention of the court during the trial or immediately thereafter the mistake complained of in order that it might be corrected before the jury retired. Where a trial judge in referring to the testimony of a witness misquotes it in a material point, his attention should be called to the error at once before the jury retires. The party is not permitted to take his chances of a verdict and then if it be against him complain of a matter which, if an error, would have been immediately corrected: Commonwealth v. Razmus, 210 Pa. 609; Commonwealth v. Kay, 14 Pa. Superior Ct. 376. Complaint is made in the sixth assignment of the charge of the court that the evidence offered about the right of way, removal of fences, and occupation of the farms was not material in the issue joined. The question whether the defendant had a right of way over the prosecutor’s land and whether that right óf way was to be unobstructed was not at issue in the case. It was conceded that the defendant had a right of way. The prosecutor claimed the right to close it by a gate, but the defendant contended he was entitled to an open way. However that may be he was not justifiable in destroying the gate which the owner of the land erected.- This had been procured at some expense and was the property of the prosecutor. It was not necessary that it be destroyed in order that the defendant have the use of his way. If the prosecutor erected it without right, the defendant might remove it, but he would have no right to destroy it. There was direct evidence that on the day named in the indictment the defendant broke the gate, drove over it, and that evidence supported -the prosecution. The attention of the jury was clearly directed to the point in issue in these words: “The question for you to determine is, did this defendant maliciously, wilfully and wantonly .destroy the property of the prosecutor, the gate. If he did he is guilty, if he did not do this he is not guilty.” The same instruction in a somewhat different form was given in answer to the defendant’s second point which was in these words: “If the jury believe from the evidence that the defendant Zacharia Taylor honestly believed that he was acting under his legal right, he would not be guilty as charged in the indictment and should be acquitted.” This point was affirmed. Under the whole charge it must have been apparent to the jury that the single question for consideration was whether the defendant had wilfully and maliciously broken and destroyed the gate and this was the correct view of the point in controversy. After a careful examination of the record we fail to find such error as requires a reversal of the judgment. It is, therefore, affirmed and the record is remitted to the court below to the end that the judgment be carried into effect.