Commonwealth v. Bradley

• Decision Date: 19 March 1901
• Docket Number: 35-1901
• Citation: 16 Pa.Super. 561
• Parties: Commonwealth v. Bradley
• Court: Pennsylvania Superior Court

16 Pa.Super. 561

Commonwealth v. Bradley

No. 35-1901

Superior Court of Pennsylvania

March 19, 1901

Argued December 10, 1900

Appeal by defendant, from judgment of O. T. Crawford Co.-1900, No 8, on verdict of guilty in case of Commonwealth v. Robert Bradley.

Indictment as an accessory before the fact in the felony of shooting with attempt to kill. Before Thomas, P. J.

At the trial it appeared that on March 23, 1900, Robert Bradley, the prisoner, and John Slavin went to the saloon of John Kepler in the city of Meadville, and after a disturbance left the place and subsequently returned. Slavin pointed a revolver at Kepler, but did not shoot. Bradley and Slavin left the place and were pursued by the chief of police, Kepler, and other persons. A witness testified that when Bradley and Slavin were near the end of a bridge crossing French creek on the road to Vallonia, he heard Slavin say something to Bradley who nodded, and that shortly thereafter Slavin shot twice. No one was hit. The indictment against the prisoner contained three counts. The first charged Slavin with feloniously shooting at Kepler with intent to kill; the second charged Bradley with being an accessory before the fact in the said felony; the third charged Slavin with wantonly pointing a pistol at Kepler.

After a charge to the jury to which no exceptions were taken, a verdict of guilty was rendered. Subsequently the defendant moved to arrest judgment for the following reasons:

1. The defendant, Robert Bradley, was arrested for one crime and indicted and tried for another.

2. The defendant, Robert Bradley, was arrested, as will appear by the transcript, as an accessory before the fact, and the indictment shows that Bradley was arrested first as principal and second as accessory before the fact.

There being two counts, and on separate complaints, one against John Slavin for shooting with intent to kill, and the other against Robert Bradley as accessory before the fact, the district attorney had no right to consolidate and bring in an indictment against both defendants, to wit: John Slavin and Robert Bradley jointly.

The court overruled the motion, and sentenced the prisoner to pay a fine of $ 5.00, and to be committed to the Pennsylvania Industrial Reformatory at Huntingdon, there to be dealt with according to law.

Errors assigned were in overruling motion in arrest of judgment, and various portions of the charge.

H. J Humes, for appellant.

Willis R. Vance, district attorney, for appellee, cited: State v. Ross, 29 Mo. 32; Benge v. Com., 92 Ky. 1; Kane v. Com., 89 Pa. 522; Com. v. Prickett, 132 Pa. 371; Hazen v. Com., 23 Pa. 355; Stahl's App., 1 Pa.Super. Ct., 496; Curtis v. Winston, 186 Pa. 492.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

RICE, J.

The indictment in this case contained three counts: the first charging Bruce, alias John, Slavin with feloniously shooting at one George W. Kepler with intent to kill and murder; the second charging that this defendant, Robert Bradley, " before the commission of the said felony of shooting at the said George W. Kepler with intent as aforesaid, did maliciously and feloniously incite, abet, move, procure, help, aid, counsel, hire and command the said Bruce, alias John, Slavin the said felony, in manner and form as aforesaid, to do and commit; " the third charging Slavin with wantonly pointing a pistol at Kepler. The defendant was tried separately and a general verdict of guilty was rendered against him.

1. As Bradley had a separate trial, we cannot see that this joinder was prejudicial to him in any way, or that it would have furnished a valid reason for quashing the indictment. Clearly it could not be pleaded in arrest of judgment. In Commonwealth v. Gillespie, 7 S. & R. 469, Mr. Justice Duncan said: " Nor is the objection maintained that several persons could not be severally indicted in the same bill for separate offenses. For though it might be in the discretion of the court to quash such indictment, yet it cannot be taken advantage of in arrest of judgment; for they are considered as several indictments in point of law."

2. A motion in arrest of judgment must be based on some matter appearing on the record. A variance between the information upon which the warrant issued and the indictment is not such matter. Nor where the defendant has gone to trial without raising the objection is it a valid ground upon which to base a reversal of the judgment upon appeal.

3. Presumably the defendant was found guilty on the second count, which, alone, charged him with an offense; and it is well settled that if there is one count in the indictment which will sustain the sentence, it cannot be reversed Commonwealth v. Prickett, 132 Pa. 371, 19 A. 218; Commonwealth v. Stahl, 1 Pa.Super. 496; Commonwealth v. Landis, 13 Pa.Super. 134. Is the second count sufficient to sustain the conviction? Section 44 of the criminal procedure act of 1860 provides: " If any person shall become an accessory before the fact to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, convicted and punished in all respects as if he were a principal felon." It is practically conceded by the defendants' counsel that notwithstanding this provision an...