Commonwealth v. Johnson, 133 Pa. 293

Commonwealth v. Johnson

133 Pa. 293 | Lackawanna Cty. Ct. Qtr. Sess. | 1890

Opinion,

Mr. Justick McCoulum:

In the first count of the indictment the defendant was charged with the larceny of “ one heating stove of the value of thirty dollars, one cook stove of the value of twenty-five dollars, one lot of hardware of the value of twenty dollars, one lot of granite-ware of the value of twenty dollars, and all of the value of ninety-five dollars; ” and in the second count with receiving these articles with knowledge that they were stolen. A motion to quash the indictment, on the ground of an insuffi*304cient specification of the stolen goods, was overruled, a plea of “ not guilty ” was entered by the defendant, and a trial was had, which resulted in his conviction and sentence on the second count. It distinctly appears in the record that the material question for the jury was whether the defendant received the stoves mentioned in the indictment, knowing that they had been stolen. No attempt was made to convict him of receiving other stolen goods, and no evidence was offered for that purpose.

It was proper for the commonwealth to prove other acts of receiving to show guilty knowledge. The evidence of these acts was independent of, and unaffected by, any description in the indictment of stolen goods, and the statute of limitations was a bar to any prosecution founded upon them. The charge of the larceny and receiving of a lot of hardware and a lot of granite-ware, was treated as surplusage, and had no agency in the conviction. It was voluntarily abandoned by the commonwealth, and its presence in the indictment was not prejudicial to the defendant in any degree. Where, on an indictment, which contains good counts and bad counts, the verdict is general, the court may disregard the bad counts, treating their abandonment by the prosecuting officer as virtually, or the equivalent of a nolle prosequi: Whart. Grim. PI. & Pr., 9th ed., § 907.

In prosecutions for larceny and receiving, several articles may be joined in a count, and the proof of one of them will sustain the indictment. A nolle prosequi may be entered on a portion of a divisible count, even after verdict. If several articles are embraced in a count for larceny, and one of them is sufficiently described and the others are not, it is not necessary to quash the indictment. In such case, it is proper to amend by striking out the articles defective^ specified, or to enter a nolle prosequi as to them. Indeed, to quash an indictment on such ground might effectually defeat justice, as where the statute of limitations would be an answer to a new bill for the larceny of the article which was adequately described in the quashed indictment. A defective description of an article in a divisible count for larceny is analogous to a bad count in an indictment. In the latter case a general verdict will be supported, and referred to the good counts unless it appear *305that evidence was received which was admissible only under the bad counts. We cannot find in the record any evidence which could have been excluded, if the averments respecting the hardware and the granite-ware had been stricken out. The testimony in the cause, and the charge of the learned judge, which is before us on exception by the defendant, leave no room for an inference that the alleged defective averments had any part or influence in the trial of this issue. If there was any error in refusing to quash the' indictment, it was rendered harmless by the subsequent proceedings in the cause, and for such an error we do not reverse a judgment.

The several specifications of error, based on extracts from the charge, do not require separate consideration. A charge must be considered and interpreted as a whole. If so interpreted, it is a correct exposition of the law, and an adequate and impartial presentation of the case, it will be sustained, although portions of it, torn from their proper connection, may suggest error. In this case we fail to discover any bias in the charge, or anything to confuse or mislead the jury. The law applicable to the issue was clearly and correctly stated, and the claims of the commonwealth and the accused, together with the evidence sustaining and controverting them, were fairly presented. All the specifications of error are dismissed, and

The judgment is affirmed; and it is further ordered that Wolf Johnson, the appellant, be remanded, to the end that the sentence of the court below be executed, and that he be confined, according to said sentence, for the residue of the term which had not expired on the date of suspension of sentence; and that the record be remitted, that the sentence and this order be carried into effect.