Staeger v. Commonwealth

Mr. Justice Paxson

delivered the opinion of the court,

The plaintiff in error was convicted in the court below of a misdemeanor in willfully and maliciously setting fire to a barn. The indictment contained seven counts, in the first six of which he was charged with felonious arson under the 137th section of the Crimes Act of March 31st I860, P. L. 415, and in the last count with the misdemeanor of burning a barn under the 138th section of said Act; upon this last count he was convicted and sentenced.

The record having been removed into this court for review, it was assigned for error “ that all the counts in the indictment under which he was -tried charged the defendant with felonies, and the verdict of the jury convicts him of a misdemeanor for which he was not indicted or tried.”

The defendant below was indicted for burning a barn, and it is that offence and no other of which he was convicted. Hence, there is no room for the allegation that he was convicted of something with which he had .not been charged. The grade of the crime depends upon circumstances. In Hill v. Commonwealth, 2 Out. 192, we pointed out the distinction between the 137th and 138th sections of the code. Speaking of the latter section we said : “ This section was manifestly intended to provide for the burning of a barn that is not parcel of a dwelling-house, nor belonging nor adjoining thereto, and which is so situated as not to endanger a dwelling-house.”

There can be no doubt that the last count of this indictment was framed under the 138th section and was intended to charge a misdemeanor only. The pleader, however, has inserted the word “feloniously.” If the act charged was a misdemeanor, this mistake of the pleader cannot avail after verdict. It was surplusage, and if objection had been taken at the trial could have been stricken out. Mere technical matters which do not affect the merits receive much less consideration now than they did a century ago.

It was urged, however, that as this count charges the burning of a barn, without any averment that “ it was not parcel of a dwelling-house,” the offence comes within the 137th section and amounts to a felony. I can understand that in order to convict of felonious arson under the 137th section the indictment must aver and the proof must show that the barn is parcel of a dwelling-house, or belonging or adjoining thereto ; or that by means thereof a dwelling-house has been burned ; but I am at a loss to perceive how the absence of such an averment can make a felony out of a mere misdemeanor. There is no legal presumption that a barn is parcel of a dwelling-house; hence when an indictment charges the burning of a barn it means that and nothing else.

The defendant below having been convicted of a misdemeanor, thé only remaining question is, was there a misjoinder? Upon this point we are in no doubt. The offences charged in the indictment are not repugnant, but grew out of the same transaction. The different counts are mere variations of the statement of the same act; viz., the burning of a barn. The authorities are uniform that such counts may be joined 'in the same indictment even though some of them charge the offence as a felony and others as a misdemeanor: Henwood v. The Commonwealth, 2 P. F. S. 424; Harman v. The Commonwealth, 12 S. & R. 69; Commonwealth v. Birdsall, 19 P. F. S. 482; Stevick v. The Commonwealth, 28 Id. 460; Hunter v. The Commonwealth, 29 Id. 503.

Judgment affirmed.