Commonwealth v. Dingman

• Court: Pennsylvania Superior Court
• Writing for the Court: PORTER, J.
• Citation: Commonwealth v. Dingman, 26 Pa.Super. 615 (Pa. Super. Ct. 1904)
• Decision Date: 12 December 1904
• Docket Number: 13-1904
• Parties: Commonwealth v. Dingman, Appellant

26 Pa.Super. 615

Commonwealth v. Dingman, Appellant

No. 13-1904

Superior Court of Pennsylvania

December 12, 1904

Argued October 3, 1904 [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Venango Co.-1904, No. 2 on verdict of guilty in case of Commonwealth v. J. H Dingman.

Indictment for larceny. Before Crisswell, P. J.

The opinion of the Superior Court states the case.

Verdict of guilty upon which judgment of sentence was passed.

Errors assigned appear by the opinion of the Superior Court.

Affirmed.

M. J. Heywang, with him Ash & Speer, for appellant. -- The indictment lacks definiteness and certainty as to time, place, circumstances and other essential matters: People v. Adams, 17 Wend. (N.Y.) 475; Commonwealth v. Bryden, 50 Mass. 137; Barnhouse v. State, 31 Ohio St. 39; State v. Temple, 38 Vt. 37; Cook v. State, 11 Ga. 53; People v. Hamilton, 101 Mich. 87 (59 N.W. 401).

A man cannot be indicted for larceny of his own property from the bailee: Com. v. Tobin, 2 Brewster, 570.

The evidence of the prosecution should have been confined to the occurrences of the one day, November 7, 1903; and evidence of occurrences or takings on other days and times should not have been admitted against the objection of the defendant: People v. Adams, 17 Wend. (N.Y.) 475; Commonwealth v. Bryden, 50 Mass. 137; State v. Temple, 38 Vt. 37; State v. Kobe, 26 Minn. 148 (1 N.W. 1054); State v. Briggs, 68 Iowa 416 (27 N.W. 358).

H. McSweeney, with him J. L. McBride, district attorney, and J. H. Osmer & Sons, for appellee. -- A general or special property in a chattel is sufficient to sustain an indictment for larceny: Yates v. State, 18 Tenn. 548.

A man may steal his own property, if by taking it it is his intent to charge a bailee with it: People v. Stone, 16 Cal. 369; People v. Thompson, 34 Cal. 671; State v. Fitzpatrick, 9 Houst. (Del.) 385; Bruley v. Rose, 57 Iowa 651 (11 N.W. 629); Adams v. State, 45 N.J.L. 448; Palmer v. People, 10 Wend. (N.Y.) 165; Rex v. Wilkinson, Russell & Ryan, 470; Reg v. Wadsworth, 10 Cox C. C. 557; Jones v. Jones, 71 Cal. 89 (11 P. 817); Henry v. State, 110 Ga. 750 (36 S.E. 55); People v. Long, 50 Mich. 249 (15 N.W. 105); State v. Crow, 54 Mo.App. 208; State v. McCoy, 89 N.C. 466.

The larceny with which the defendant is charged was a single and continuous offense from the time the pipes were put in place up to the time the defendant was arrested on November 7, 1903: R. v. Brettel, C. & M. 609 (41 Eng. Com. Law Rep. 331); Lorton v. State, 7 Mo. 55; State v. Morphin, 37 Mo. 373; State v. Williams, 29 Tenn. 100; State v. Nelson, 29 Me. 329; Fisher v. Commonwealth, 1 Bush, 211; Jackson v. State, 14 Ind. 327; State v. Cameron, 40 Vt. 555; Commonwealth v. O'Connell, 94 Mass. 451; State v. Johnson, 3 Hill (So. C.), 1.

Before Rice, P. J., Beaver, Orlady, Smith, Porter and Morrison, JJ.

OPINION

PORTER, J.

The defendant was charged with stealing 2,000 barrels of oil from the pipe lines of the National Transit Company, and was convicted upon the first count of the indictment, which laid the property of the oil to be in the National Transit Company. The specifications of error which raise the question of the sufficiency of the information in which the prosecution originated may be considered together. The first information was made on November 7, 1903, and charged " that on November 7 and immediately heretofore a certain J. H. Dingman, of Titusville, __ Pa. __, did in the county of Venango, steal and appropriate illegally to his own use crude petroleum from the pipes of the National Transit Company; " upon that information a warrant was issued, and the defendant was arrested and gave bail for a hearing. At the hearing, on December 21, 1903, a further and fuller accusation was made in writing, supported by the oath of the prosecutor, charging the defendant with the same offense, substantially in the following language: " On the 7th day of November, A.D. 1903, in the county of Venango, J. H. Dingman did feloniously take and carry away a large quantity of crude petroleum oil, to wit: two thousand barrels of great value, to wit: of the value of two thousand dollars, the property of the National Transit Company, with the intent to convert the same to his, J. H. Dingman's use, without the owner's consent." The hearing proceeded and the defendant was held and gave bail for his appearance at the next court of quarter sessions to answer the charge. An indictment having been found the defendant moved to quash it upon the ground that the original information was insufficient, and his arrest upon the warrant thereunder issued was illegal. The indictment had been regularly found by the grand jury upon examination of witnesses, after information made before a magistrate and the entry of bail by the defendant to answer the charge. The defendant might have raised any question touching the legality of his arrest upon a proceeding to be discharged from custody, but having given bail to answer the charge he could not after indictment found raise such questions by a motion to quash: Commonwealth v. Brennan, 193 Pa. 567. The only question to be considered is whether the written accusation which the defendant gave bail to answer sufficiently informed the defendant that he might be put on trial for the crime charged in the indictment. It is not necessary that an information should charge the crime with the same detail and technical accuracy required in an indictment, if the essential elements of the offense be set forth in terms of common parlance the information will be held to be sufficient. The original written accusation, supported by oath, sufficiently informed the defendant that he was charged with having upon a day certain, in the county of Venango, stolen crude petroleum from the pipes of the National Transit Company. The time and place of the offense were accurately indicated, the property was described in general terms, although the quantity of the oil was not stated, and the taking was sufficiently alleged to have been from the possession of the National Transit Company. When a defendant enters bail to answer the charge of having at a given time and place stolen personal property from the possession of a person named, he is presumed to know that the indictment founded upon the preliminary accusation will in legal language charge the crime of larceny and state the quantity of the goods, and aver the property to be in a certain owner. The first and second specifications of error are dismissed.

The third, fourth, fifth and sixth specifications of error go to the form of the indictment, and not one of them is well founded. The indictment contained four counts, in each of which the offense was laid " on the seventh day of November in the year of our Lord one thousand nine hundred and three, and on divers other days and times within two years last past before the finding of this inquisition." No one of the counts charged more than one offense, which was averred to have been committed upon a day certain and upon divers other days not specified. Had no day certain been laid the indictment would beyond question have been insufficient. Each count, however, does sufficiently charge the offense to have been committed upon a particular day. If an indictment charge a man with the commission of a crime on divers days, and only one day be particularly specified it will be good, for only one penalty can be inflicted. A day certain being mentioned, the continuendo may be rejected as surplusage: 2 Hawkins, P. C. book 2, chapter 25, sec. 82; 1 Chitty's Criminal Law, 218; People v. Adams, 17 Wendell, 475; Commonwealth v. Pray, 30 Mass. 359; Commonwealth v. Bryden, 50 Mass. 137. The first, second and third counts of the indictment charged the appellant with the larceny of 2,000 barrels of crude petroleum oil, but each count averred a different ownership of the property. The first count laid the property, without qualification, in the National Transit Company, " a corporation duly organized and existing under the laws of the commonwealth of Pennsylvania; " the second count laid the property in said corporation " bailee for divers persons to this grand inquest unknown; " and the third count laid the property in " divers persons to this grand inquest unknown." The averment as to ownership in an indictment for larceny is for the purpose of identifying the property. If there be any question as to the ownership of the property the larceny of which is charged, it is proper to insert counts charging the ownership in as many ways as there are parties interested: Wharton's Criminal Law, sec. 932. That a count charging the receiving of stolen goods may be joined with one charging the larceny of the same goods by the same defendant, is too well settled in Pennsylvania to require citation of authority.

The appellant was convicted upon only one count of the indictment, the first, which laid the property in the National Transit Company. The evidence disclosed that the wife of the defendant was the owner of two small producing oil wells, the oil from which had from time to time been run into the lines of the National Transit Company, was placed to her credit upon the books of that corporation and the corporation had from time to time delivered oil to her or purchased her credit balances, in the manner in which the business of such companies is usually carried on. At the time of the alleged offense the wife of the defendant had a small amount of oil due her from the transportation company upon account of the production of said wells. The defendant controlled and managed the two small oil wells in question for his wife. It is now contended that the National Transit Company was, as to a part of the oil in its lines, merely a bailee for the...