Harrison v. Commonwealth, 123 Pa. 508

Harrison v. Commonwealth

123 Pa. 508 | Pa. | 1889

*515Opinion,

Mr. Justice Paxson :

It would have been better had the learned judge below arrested the judgment on the second count of the first indictment. The jury acquitted the defendant on the first count, and as the second count did not charge an indictable offence, no judgment could have been entered thereon. Instead o£ arresting the judgment the court granted a new trial, and a new indictment having been found by the grand jury, charging defendant with buying scrap copper from minors, he was convicted.

We do not see, however, how the action of the court in not arresting the judgment has prejudiced the defendant. A new trial was granted and no further proceedings were had upon the first indictment, nor could there have been under the circumstances. The action of the court has not left the defendant exposed to costs or any other peril. Tlie second trial was upon what was practically a new indictment. It charged a different offence, although it referred to the same transaction intended to be charged in the first. In other words, the charge was set out in conformity to the act of assembly. It consisted in buying scrap copper from minors, in violation of the act of April 11,1866, which provides that “ Any person in Allegheny or Schuylkill counties receiving or buying from minors, or unknown or irresponsible parties, any scrap iron, brass, lead, copper, or other metal, shall be guilty of a misdemeanor,” etc.

It was urged that this charge did not conform to the information, which was for receiving stolen goods. This is true, but the indictment was what is sometimes called a district attorney’s bill; that is, a bill sent to the grand jury by that officer, upon his official responsibility and by leave of court. A bill so sent cannot be quashed unless for matters appearing upon its face: McCullough v. Commonwealth, 67 Pa. 30. There was no plea of twice in jeopardy. Nor would it have availed if there had been. There could have been no conviction upon the first bill, of the offence charged in the second.

The question of the constitutional^ of the act of 1866 is not directly raised by any assignment of error and does not require discussion. I will say, however, that the act appears to be an exercise of the police powers of the state, and is as much intended to prevent children from becoming thieves, as *516to protect the particular kind of property referred to in the act. It is in the same line with other legislation in regard to minors, by which it is made an' offence to employ children in mines and factories; to sell them liquor; forbidding the employment of children under eighteen years of age in singing, playing on musical instruments, or begging on the streets; prohibiting the sale of deadly weapons and explosives to persons under sixteen years of age, etc., etc. The jury had nothing to do with the propriety of the law or its constitutionality, and the learned judge committed no error in declining to allow them to pass upon these questions. "While this is far from being a clear record, we are unable to say that any substantial error has been committed or that injustice has been done the defendant.

Judgment affirmed.