Commonwealth v. Powell

Opinion by

Beaver, J.,

Defendant was tried and convicted of the offense of embezzlement charged in the indictment as follows: “ That William H. Powell, late of said county, on the 3d day of September, in the year of our Lord one thousand nine hundred and one, at the county aforesaid and within the jurisdiction of this court, being then and there consignee and factor having the possession of certain merchandise, to wit, forty crates of peaches the property of Elsie K. Sehlegel, with authority to sell the same, in violation of good faith, with intent to defraud the owner, Elsie K. Sehlegel, did unlawfully and fraudulently apply and dispose of to his own use certain money, to wit, forty^five dollars, raised and acquired by the sale and disposition of said merchandise, to wit, peaches, property of said Elsie K. Sehlegel, contrary to the form of the act of the general assembly,” etc.

There are numerous assignments of error but one or two of which need be considered. The first, second, third and sixth assignments refer to the admission of offers of evidence received under exceptions. They are all, however, in violation of our rule sixteen which provides that “ when the error assigned is to the admission or rejection of evidence, the specification must quote the questions or offers, the ruling of the court thereon and the testimony or evidence admitted, if any, together with a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence or notes of trial.” This rule has been totally neglected in the formulation of these assignments of error and they must, therefore, under the provisions of the rule itself, be disregarded.

The seventh specification alleges error in the remarks of the court which accompanied the rejection of one of the offers. There is nothing erroneous in what is assigned for error but, inasmuch as the assignment relating to the admission of the testimony is contrary to our rule, even if the remarks were in themselves erroneous, the assignment would be disregarded because of the irregularity as to the assignment relating to the offer itself.

The fourth assignment relates to the refusal of the court to allow a bill of particulars. This assignment is also quite irregular. Neither the application nor the ruling of tho court in regard thereto is set forth. Both should appear in the assignment itself, if they are to be regarded. It is to be remarked in reference to this assignment, however, that the allowance of a bill of particulars is not a matter of right. It is an appeal to the sound discretion of the court. An assignment of error relating to a refusal to allow a bill of particulars would only be regarded when there is a manifest disregard of the defendant’s rights. This is not apparent in the present case. In Com. v. Buccieri, 153 Pa. 535,. Mr. Justice Dean said: “Before arraignment, if it be made to appear to the court that any injustice is likely to be done the prisoner because of vagueness of indictment, a-bill of particulars may be ordered ; this not because the prisoner has a right to demand it but because the court, after trial, on proof of surprise or injustice in consequence of the absence of specific averment as to weapon and manner of killing, would set aside the verdict and grant a new trial.” In Com. v. Johnston, 19 Pa. Superior Ct. 241, President Judge Rice refers to the application for a bill of particulars as addressed to the sound discretion of the court. This is the recognized rule and we can see no failure of the exercise of a sound discretion on the part of the court below in this case.

In the fifth assignment of error the defendant complains of the charge of the court as follows: “ Nor is the date laid down in the indictment to be followed absolutely. If you find that the defendant is guilty of having embezzled and converted to his own use any money belonging to Mrs. Schlegel at any time within two years from the bringing of the indictment, you will be justified in bringing a verdict of guilty.” There is no error in this. Time was not of the essence of the offense. “ A variation in proof as to time is immaterial where time is not an essential ingredient of the offense. It is not necessary, however, except where time enters into the nature of the offense, to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the indictment and within the period prescribed by the statute of limitations: ” Sadler’s Crim. Proc. 320.

We find nothing worthy of special note in any of the assignments of error and nothing prejudicial to the rights of the de* fendant in the trial. Judgment affirmed.