Commonwealth v. Birdsall

• Decision Date: 09 January 1872
• Citation: 69 Pa. 482
• Parties: Commonwealth <I>versus</I> Birdsall.
• Court: Pennsylvania Supreme Court

69 Pa. 482

Commonwealth versus Birdsall.

Supreme Court of Pennsylvania.

October 30, 1871.

January 9, 1872.

October 30th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Quarter Sessions of Allegheny county: No. 219, to October and November Term 1871 A. G. Cochran (with whom was R. S. Morrison), for plaintiff in error.—Where a criminal act has been committed, every part of which may be alleged in a single count in an indictment, and proved under it, the act cannot be split into several distinct crimes and a separate indictment sustained upon each. And wherever there has been a conviction for one part, it will operate as a bar to any subsequent proceedings as to the residue: State v. Benham, 7 Conn. R. 414. Burglary and larceny can both be included in a single count, when they are a part of the same act: Commonwealth v. Tuck, 20 Pickering R. 356; Commonwealth v. Hope, 22 Id. 1; 2 Russell on Crimes 40; Wharton's Criminal Law 383; Rex v. Witnal, 1 Leach 102; Josslyn v. Commonwealth, 6 Metc. 236; Larned v. Commonwealth, 12 Id. 244.

L. B. Duff, for Commonwealth.

The opinion of the court was delivered, January 9th 1872, by AGNEW, J.

The indictment in this case contains two counts; the first for wilfully and maliciously breaking and entering a storehouse or shop, with intent feloniously to steal, take and carry away goods and chattels. This count is framed upon the second section of the Act of 22d April 1863, Pamph. L. 531, and specifies no particular goods. The second count was for simple larceny, enumerating the goods in detail. The defendant was found guilty under both counts, and on the first was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the Western Penitentiary for four years; and on the second was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the Western Penitentiary for one year and six months to be computed from and after the termination of the first sentence. It is alleged that the conviction and sentence under both counts are erroneous. But the very excellent argument for the plaintiff in error has failed to convince us. The authorities in support of the conviction are to be found collected in Mr. Wharton's Am. C. L., ed. 1868, §§ 415, 416 417, 421. It cannot be objected in error (he says), that two or more offences of the same nature on which the same or a similar judgment may be given, are contained in different counts of the same indictment; nor can such objection be maintained either on demurrer or in arrest: § 415. In § 421, he says, where a prisoner is found guilty generally under an indictment containing two counts, neither of which is defective, it is no ground of objection to the verdict that it does not state upon which count it was found. In our own state the authorities are no less forcible. In The Commonwealth v. Gillespie, 7 S. & R. 469, where an indictment containing nine counts charged two distinct offences, and in two of the counts several defendants, Justice Duncan said, "These several charges as laid in the indictment are different modes of laying the same offence. But if the offences were different, separate offences, it is no objection either on demurrer or in arrest of judgment, that separate offences of the same nature are joined against the same defendant. Even in case of a felony, though it be true that no more than one offence should regularly be charged in...