Commonwealth v. Newcomer

The opinion of the court was delivered, by

Read, J.

The indictment in this case is framed under the 114th section of the “Act to consolidate, revise, and amend the Penal Laws of this Commonwealth,” passed the 31st March 1860, which with other sections of the same act is copied from the Act of the 15th April 1858 (P. Laws, p. 270), and which act was itself nearly a transcript of the Act of 20 and 21 Vict. ch. 54, entitled “An act to make better provision for the punishment of frauds committed by trustees, bankers, and other persons intrusted with property,” passed 17th August 1857, which was repealed by the Act of 24 and 25 Vict. c. 195, having been supplied by the “ Act .to consolidate and amend the Statute Law of England and Ireland, relating to larceny and other similar offences,” passed 6th August 1861.

Our revisers in the 108th and 123d sections copied nearly verbatim the 4th and 11th sections of the Act of Parliament of 1857, which had been omitted in our Act of 1858, and in the 124th adopted the language of the 17th section of the Act of 1857, instead of that of the 11th section of the Act of 1858. The interpretation clause gives only the statutory meaning of the words “trustee” and “property.” This 114th section is found in Title 7, “ Offences against Personal Property.”

The indictment uses, in conformity to the 11th section of the “Act to consolidate, revise, and amend the laws of this Commonwealth relating to penal proceedings and pleadings,” passed the 81st March 1860, the very language of the act describing the crime and the criminal; and it is therefore difficult to see how the question argued here, could he raised upon a writ of error, when we have nothing but the indictment before us. If it was a formal defect apparent on the face, which it is here contended that it was, then the objection should have been taken by demurrer, or on motion to quash the indictment before the jury were sworn. If the court did not think the defendant came within the true meaning of the word agent, then their true course was not to arrest the judgment, but to have granted a new trial, and upon a future trial they could have laid down the law as they understood it. As, therefore, there was no error in the indictment, the court below were in error in arresting the judgment.

The judgment is reversed, and the record remitted to the court below, to proceed to sentence according to law.