14 Pa. Super. 430 | Pa. Super. Ct. | 1900
Opinion by
The court below made the following order: “ And now, to wit: January 3,1900, the within copy of original bill being presented to the court, the court do direct the same to be filed to take place of original, lost or mislaid.” It is complained: (1) that it was irregular to make the order on the ex parte affidavit of the district attorney without other proof and without affording the defendant an opportunity to cross-examine and to show that this is not a true copy; (2) that it does not clearly appear by the affidavit that it is a correct copy of the indictment.
The first objection, if well founded in fact, would be meritorious, but it is to be observed that it is not shown by the record that the defendant was not afforded an opportunity to be heard in opposition to the application, or that the order was made on insufficient proof. The fair inference from the bill of
We feel justified, therefore, in saying that the only meritorious question is, whether or not the court of quarter sessions has power to supply the place of a lost or mislaid indictment by a copy duly proved, and to require the defendant to plead thereto. The courts of several of the states of the Union have passed on this question, some holding that the power is included in the general inherent power of the court to preseiwe its own records, others holding that where the indictment is lost after the defendant has been arraigned and has pleaded, the substitution of a copy may be made, but that when it is lost before arraignment or plea it cannot be replaced by a copy. In other states the subject is regulated by special statutory provisions, and in some of the states where it is required that indictments be spread upon the record, it is held that a certified
The sixth assignment is not in accordance with our rules ; but passing that objection and going to the notes of evidence printed in the appendix, we find but two exceptions noted upon which the assignment could by any possibility be based, and neither of these shows that testimony of the kind complained of in the assignment was actually given by the witness.
The judgment is affirmed and the record is remitted to the court below to the end that the sentence may be fully carried into effect.