Commonwealth v. Gallagher

Opinion by

William W. Porter, J.,

The indictment in this case contains three counts, the first charging the statutory offense of carrying concealed deadly weapons with malicious intent; the second charging the carrying of a deadly weapon with no averment of concealment or malicious intent; and the third charging an assault. The defendant moved in arrest of judgment. The court below refused the motion.

This case discloses one of those accidents that sometimes creep into the trial of a cause despite the care that is exercised in the administration of justice. In this case the second count of the indictment was ill pleaded, charging no crime. When the cause was on trial the learned judge doubtless noticed the defect in the second count and practically ignored it. Throughout his change he treated the cause as if it involved but two counts, first, for carrying concealed weapons with malicious intent, and second (third count), for an assault. When, however, the jury returned their verdict, it was “ guilty on second count.” The record is all that we may examine in such a case. The record shows a conviction on a count charging no offense under the law. We are thus obliged to reverse the court below because of this technical defect in the record, and without any expression of our opinion as to what may, or may not have been the intention of the jury in returning their verdict.

The judgment is reversed and the defendant discharged without day.