Commonwealth v. Barge

Opinion by

Beeber, J.,

The first, third and fourth counts need not be considered, as the defendant did not plead guilty to any one. of them, nor was any trial and conviction had upon them. ' Whether' these counts are good or bad is immaterial, for if there was one count good and sufficient to support the conviction and judgment the others need not be considered: Com. v. McKisson, 8 S. & R. 420; Hazen v. Com., 23 Pa. 355; Hutchison v. Com., 82 Pa. 472.

The second count charged the defendant with having collected county taxes of a certain borough “ to the amount of $ and did then and there ” fraudulently convert and appropriate a part thereof to his own use and fail to pay over the same or a part thereof to the person legally authorized to demand and receive the same. The count is almost literally in the language of the 1st section of the Act of June 3, 1885, P. L. 72. To this count the defendant pleaded guilty. Five days afterwards he moved hi arrest of judgment because the count did not specify the amount alleged to have been embezzled, nor the amount collected from any particular person, which motion was overruled.

The view we taire of this case does not require us to decide whether or not this count comes under the well recognized ex^ ception that counts for embezzlement by public officers need not have the same particularity in describing the funds embezzled or the persons from whom and the times at which the money was received as is required in similar counts against private persons. The 11th section of the Act of March 31, 1860, P. L. 427, after providing that indictments charging crimes substantially in the language of the acts prohibiting the crime shall be deemed good in law declares: “ Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn and not afterward; and every court, before whom any such objection shall be taken for any-formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared.” This section has abolished the refined technicalities that at one time prevailed to delay and prevent the trial of criminal cases. All formal defects, apparent on the face of the indictment, must now be taken advantage of by demurrer or motion to quash, and that before the jury is sworn. The commonwealth must have a chance to correct or amend where the defect is formal or apparent. The defendant can no longer take the chances of a trial, and, if that goes against him, have the judgment arrested for such apparent defects. It is the policy of the law to facilitate the trial of cases upon the merits and formal defects in the pleadings will no longer obstruct it: Com. v. Frey, 50 Pa. 245; Rough v. Com., 78 Pa. 495; Gorman v. Com., 124 Pa. 536; Com. v. Williams, 149 Pa. 54. This rule is rigorously applied even where the indictment is defective because of duplicity, which was one ground of objection to this indictment: Kilrow v. Com., 89 Pa. 480.

These decisions sustain the learned court below in refusing to arrest the judgment after the plea of guilty to the second count was entered, for in this respect the plea of guilty must be considered the same as a verdict of guilty under the same count. If'this count was defective, which we by no means admit, it was an apparent defect. The defendant must be presumed to have seen it before he pleaded to it. If he had any reason to object because the count did not state what amount of taxes he had collected, or had embezzled, or from whom and when they were received, it was his duty to do so before the jury was sworn. Had the court below then decided that the count was defective because it did not state, in the blank space evidently left for that purpose, the amount of taxes collected, the commonwealth could have amended by filling the blank with the proper amount. See Rough v. Com., supra. As he failed to raise that question then we must hold that it was too late to do it afterwards. The first assignment is overruled.

The second and third assignments raise the question whether the learned court below erred in sentencing defendant to imprisonment in the Western Penitentiary in Allegheny county “ there to be kept, fed, clothed and treated as the law directs and stand committed until sentence is complied with.” The rule is clear that the court, in imposing sentence, is limited to the punishment prescribed by the terms -of the violated statute. It cannot go beyond the statute’s express terms: Kræmer v. Com., 3 Binn. 577; Scott v. Com., 6 S. & R. 224. So rigidly is this rule applied that even where the court has the power to sentence a prisoner, either to a penitentiary or to a county jail, the former, by the laws creating and- regulating it, imposing hard labor upon all prisoners confined in it, and the latter not, it cannot confine him in the latter at hard labor. If this is to be a part of the sentence he must be sent to the penitentiary: Daniels v. Com., 7 Pa. 371. The act of June 3, 1885, of the violation of which this defendant pleaded guilty, provides that he “ shall be sentenced to an imprisonment not exceeding five years, or to pay a fine not-exceeding five thousand dollars, or both at the discretion of the court.” The Act of June 26, 1895, P. L. 374, provides that all persons sentenced to simple imprisonment for any period of time shall be confined in the county jail where the conviction shall take place. It is clear from these two statutes and from the rules controlling courts in imposing sentences that the learned judge erred when he sentenced defendant to the Western Penitentiary in Allegheny county, “there to be kept, fed, clothed and treated as the law directs.” In the absence of any special law, and none has been called to our attention, there was no power to confine the prisoner in the Western Penitentiary nor to impose upon him the treatment involved in the phrase “ there to be kept, fed, clothed and treated as the law directs.” What would be involved in that phrase can be seen by a reference to the Act of April 23, 1829, P. L. 341. This error, however, does not require anything further than a reversal of the sentence which will have no effect on the trial and conviction. The case will be sent back for another sentence.

It is therefore ordered that the sentence of the court of quarter sessions in this case be reversed, and that the record be remitted to said court, with an order of procedendo, to proceed, and sentence the prisoner afresh, in due order and according to law.

Smith, J., dissents.