71 Pa. Super. 255 | Pa. Super. Ct. | 1919
Opinion by
The defendant was charged with fornication and bastardy. The crime was committed in the State of Delaware but the child was born in Philadelphia. The latter place was the proper place to institute the prosecution : Act of March 31,1860, Sec. 38 P. L. 393.
When the case was called for trial the defendant moved to quash the indictment for reasons filed but not printed in the paper book. The district attorney then moved to amend the indictment by changing the date and substituting September 15, 1915, a date more than two years before the finding instead of April 2, 1917, as laid therein the latter date being within two years. As far as we can learn from the proceedings as set forth in the paper book, this amendment was not necessary, for the time being laid within two years, the Commonwealth could prove any date prior: Blackman v. Com., 124 Pa. 578.
■ The defendant then objected to .the amended indictment because on its face, the offense charged was barred.
The indictment before us charged the crime “Substantially in the language of the act of assembly prohibiting the crime.” Act of March 31, 1860, Sec. 11 P. L. 433.
The specific objection that the indictment failed to state that the defendant was not an inhabitant or usual resident was not made on the motion to quash. The alleged defect should have been pointed out and being formal could have been cured by amendment: Com. v. Williams, 149 Pa. 54. But passing this we think the indictment was sufficient.
It was said in Blackman v. Com., 124 Pa. 578, that, “in a case where the statute may be interposed, and the Commonwealth alleges the defendant comes within the exception of the statute, the better practice is to aver in the indictment the facts relied upon to toll the statute. We do not regard this as essential however, and we would be exceedingly loth to reverse for such a technical reason after a trial and conviction upon the merits. The true rule is thus stated by Mr. Wharton in his work on criminal law at page 446; 'Although the defense on the face of the indictment, is outside the statute, yet the prosecution may prove, without averring it in the indictment, that the defendant, having fled the state, was within the exception of the statute.’”
In Com. v. Werner, 5 Pa. Superior Ct. 249, this court held the contrary but, an examination of that case shows that the case hinged upon the question whether an agreement to support his bastard child operated as an estoppel so as to prevent the defendant pleading the statute in bar, -
As to the question as to whether a judge of the Municipal Court can sit as a committing magistrate, we have held that he can. See Com. v. Persch, filed January 3, 1919.
The judgment is affirmed, and it is ordered that the defendant, appellant, appear in the court below at such time as he may be there called, and that he be by the court committed until he has complied with the sentence or any part of it that had not been performed at the time this appeal was made a supersedeas.