Commonwealth v. Smith
62 Pa. Super. 288
Pa. Super. Ct.
1916
Check Treatment

Opinion by

Tkexlek, J.,

We take the following from the facts as found by the lower court, that three separate complaints were made against Felice Marone, charging him with selling liquors without a license on three separate days; that in each case the defendant became surety in the sum of $200.00 for the appearance of the said Marone at court; three separate transcripts being filed. The district attorney consolidated the actions, and only one indictment was found against him, and thereon he was tried and convicted. When called for sentence, Marone failed to ap*290pear, “and the three recognizances were all duly forfeited.” The identical procedure was had in the case against Peter Marone, and the three recognizances, each of $200.00, were duly forfeited, the aggregate amount of the forfeited recognizances in all of the cases being $1,200.00. The forfeitures were certified, suit was brought and judgment was entered against the defendant for $1,200.00 for want of an affidavit of defense. Upon petition and rule the judgment was opened, and the court held, “That the consolidation of the transcripts against each defendant, and the indictments following this consolidation as found by the grand jury, relieves the defendant, Michael Smith, from the liability upon all said transcripts, except one recognizance in each case, or a total liability of $400.00 in both cases.”

The Act of March 10, 1905, P. L. 35, provides that it shall be unlawful for any person instituting or prosecuting a criminal suit to duplicate any return, complaint, information, indictment, warrant, subpoena or other writ, where the offenses charged grew out of the same transaction, and the second section makes it unlawful to tax costs in more than one case where the offenses might have been included in one complaint or indictment. If we look at the act, it is very evident that its purpose was to prevent a duplication of costs. The title to the act is “An act relating to the institution, prosecution and taxation of costs in criminal cases.” The preamble refers to certain practises which have arisen in criminal cases whereby unjust burdens have been placed upon the taxpayers of this Commonwealth. But the act does not, in case of a duplication of cases, affect the validity of the proceedings. The act of the officer in duplicating cases is unlawful, but each complaint, information, etc., is lawful. It still remains as part of the proceedings although it is combined with the others in one case. The only result of the violation of the Act of 1905 is that the officer loses his costs in such cases in which he offends against the act.

*291When this defendant entered into six recognizances, each was a binding obligation. Their efficacy was not destroyed by the consolidation of the actions. None of the recognizances dropped out of the case by such action of the district attorney. The act provides for consolidation, not elimination. We think the lower court was wrong in coming to the conclusion that the effect of the Act of 1905 in the present proceedings, after the district attorney consolidated the cases, was to limit the defendant’s liability to one recognizance, as to each defendant. We think each recognizance remains unaffected by the act. Under the Act of Dec. 9,1783, 2 Smith 84, 2d Vol., the power is given to the Court of Common Pleas to order recognizances to be levied, modified or remitted on hearing the circumstances of the case according to equity and their legal discretion. We do not question the right of the court to “modify or remit” as provided by said act. The court, however, did neither in the case before us. It found, as a matter of law, that in view of the consolidation of the cases defendant’s liability ceased on all but two recognizances, one as to each of the two parties indicated. As stated before, we think this conclusion is erroneous.

The judgment is reversed and the record is remitted to the court below with instructions to enter judgment in accordance to this opinion unless cause be shown to the contrary. Appellee for costs.