15 Pa. Super. 158 | Pa. Super. Ct. | 1900
Opinion by (after finding the facts as set out in the statement of facts) :
None of the foregoing reasons nor all of them taken together were sufficient to' make it the imperative duty of the court to quash the indictment, as a brief review of the authorities will show.
1. A constable’s return need not be drawn with all the formal nicety of an indictment. The return in the present case taken as a whole and given a reasonable intendment charges a public nuisance, and by implication a neglect of duty on the part of the municipality in permitting the public highway under its control to be and continue totally obstructed against public travel. The precise point was ruled in Com. v. Bredin, 165 Pa. 224, at least so far as the form of the return is concerned. There, as here, the constable adopted the notice as part of the réturn. The court below and the Supreme Court held that this was sufficient. Chief Justice Sterrett, delivering the opinion, said: “ The indictment was bas_ed upon the return made by the borough constable to the court of quarter sessions. It was his duty to make the return, and while it was informal, as many such returns are, it was deemed sufficient by the court, and we are not prepared to say it was insufficient. It was made under oath and in answer to the question, ‘ Any other violations of law ? ’ the constable’s reply was, ‘ Yes; see notice hereto attached. ’ The notice be
2. Neglect to keep in repair the public roads in any municipal district is a violation of public duty, and the person or municipal corporation charged with the duty is punishable by indictment at common law: Edge v. Commonwealth, 7 Pa. 275; Phillips v. Commonwealth, 44 Pa. 197; Commonwealth v. Reiter, 78 Pa. 161; Oakland v. Martin, 104 Pa. 305; Commonwealth v. Johnson, 134 Pa. 635; Roaring Brook Road, 140 Pa. 632. “ Corporations are generally regarded as indictable for misfeasance, as well as nonfeasance, respecting duties of a public nature plainly enjoined by the legislature for the benefit of the public. The modern view is to assimilate corporations, as to their duties and responsibilities, so far as possible, to individuals. It is admitted that they cannot be indicted for felonies, but it is clear that they may be indicted for acts done to the injury and annoyance of the public, and which amount to a nuisance: ” Dillon’s Municipal Corporations, sec. 932, quoted with approval in Com. v. Bredin, supra. Not only does this principle apply to cases where the nuisance was created by the municipal corporation, but it also applies t,o cases where it has the power and is charged with the duty to abate a nuisance in the public highway and neglects to discharge the duty. Prom time out of mind it has been the practice, and in the last cited case it is shown to be their duty, for constables to return such public offenses and for the court to permit the district attorney to send an indictment before the grand jury without a previous hearing before a committing magistrate. It is unnecessary to discuss the propriety of this course of procedure. It is too well recognized to require more than the citation of the case of McCullough v. Com., 67 Pa. 30, where the subject is elaborately reviewed.
3. The suggestion that the indictment is not based on the return, but sets forth an entirely different offense, is not well founded, as a comparison of the return with the part of the indictment heretofore quoted will sufficiently show. Nor is there merit in the objection that the indictment does not set forth the
4. Where an indictment is based on a constable’s return made in the discharge of his official duty, it is not required that the name of a prosecutor be indorsed. Ordinarily there is no private prosecutor, and if there be none the defendant cannot refuse to plead: The King v. Lukens, 1 Dall. 5. This was so under the act of 1705, 1 Sm. L. 56, and the law has not been changed in this respect, but it has been so amended by the criminal procedure act of 1860, section 27, as to enable the court to determine the question in any case, whether there is such a prosecutor, and who he is, and “if they shall be of opinion that there is such a prosecutor ” to order his name to be indorsed on the indictment. The fact that no prosecutor’s name was indorsed on the bill returned by the grand jury was not ground for quashing the indictment.
5. The proceedings leading up to the finding of the indictment being regular and the indictment being sufficient in form and in substance, it is nevertheless claimed that the court had discretionary power to quash it. The case of Commonwealth v. Green, 126 Pa. 531, is relied on as sustaining this proposition, but we think it falls short of doing so. In that case the
Considerable is said in the appellee’s paper-book as to the merits of the case. But these facts alleged as a defense could not be considered by the court below on a motion to quash nor are they before us.
The judgment of the quarter sessions quashing the bill of indictment is reversed, and the record is remitted for further proceedings according to law.