Commonwealth v. Doran

Decision Date30 June 1941
Docket Number72-1942
Citation20 A.2d 815,145 Pa.Super. 173
PartiesCommonwealth v. Doran, Appellant
CourtPennsylvania Superior Court

Argued May 5, 1941.

Appeal from judgment of Q. S. Allegheny Co., March Sessions, 1941 No. 79, in case of Commonwealth v. Mary Doran.

Indictments charging defendant, in one count, with burglary and larceny and in another count with receiving stolen goods. Before Long, P. J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty of larceny and receiving stolen goods, but not guilty of burglary and judgment and sentence thereon. Defendant appealed.

Error assigned, among others, was refusal of new trial.

Judgment affirmed.

John J Cohen, for appellant.

Earl R. Jackson, Assistant District Attorney, with him Andrew T. Park, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Rhodes, J.

The appellant, Mary Doran, contends that she has been improperly convicted of larceny.

The first count of the indictment on which she was tried charged "that Margaret Smozski and Mary Doran .... with force and arms, the building of Gimbel Brothers, Incorporated, .... feloniously and burglariously did wilfully and maliciously enter, with intent the goods, chattels, moneys and property of the said Gimbel Brothers in the said building then and there being, then and there feloniously and burglariously to steal, take and carry away, and [describing merchandise and the value thereof] of the goods, chattels, and property of the said Gimbel Brothers, Incorporated, then and there being found, then and there feloniously and burglariously did steal, take and carry away, ...." The second count of the indictment charged appellant and Margaret Smozski with receiving stolen goods. Margaret Smozski pleaded guilty. The jury found appellant guilty of larceny and receiving stolen goods, but not guilty of burglary. [1] A new trial was refused; sentence was imposed, and this appeal followed.

Appellant's position here is that the verdict of the jury is in contravention of the counts in the indictment, in that the indictment does not contain a charge of larceny.

The first count, in addition to burglary, charged the commission of the felony intended, namely, larceny. [2]

In Becker et al. v. Commonwealth, 6 Sadler 428, 9 A. 510, it was held that burglary with intent to commit larceny, and larceny actually consummated, may be charged in the same count in an indictment.

In Hollister v. Commonwealth, 60 Pa. 103, the first count of the indictment charged that the accused, with force and arms, in the nighttime, did feloniously and burglariously break and enter the storehouse of Stanton & McMullen, in the borough of Waymart, with intent the goods and chattels of the said Stanton & McMullen to steal, take and carry away; and that having so entered he did steal, take and carry away certain of the goods of the said Stanton & McMullen, describing them. He was convicted as indicted, that is, for burglary. The sentence imposed was reversed, and the prisoner discharged, because the breaking and entering a storehouse, not parcel of a dwelling house, was not burglary by the common law, nor by any statute in this state at that time. The Supreme Court, however, said: "But it was argued that there is embraced in this charge of burglary a charge of larceny. This is true; and it is not to be denied that a conviction by the jury of the minor offense would be sustained. But that was not what occurred in the case."

In Commonwealth v. Carson et al., 166 Pa. 179, 30 A 985, the indictment charged that the defendants "wilfully and feloniously did break and enter the dwelling house of M. J. Baker, there situate, with intent the goods, chattels and property of M. J. Baker, in the said dwelling house then and there being, then and there feloniously to steal, take and carry away," and "did then and there the goods, chattels and property above mentioned, in the said dwelling...

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3 cases
  • Com. v. Bradshaw
    • United States
    • Pennsylvania Superior Court
    • December 22, 1975
    ...Commonwealth v. Miller, 107 Pa. 276 (1884); Commonwealth v. Sutton, 171 Pa.Super. 105, 90 A.2d 264 (1952); Commonwealth v. Doran, 145 Pa.Super. 173, 20 A.2d 815 (1941). Also, when a statute made two or more distinct acts connected with the same transaction indictable and each act could be c......
  • Com. ex rel. Tyson v. Day
    • United States
    • Pennsylvania Superior Court
    • July 17, 1956
    ...case, or a general verdict of guilty. In the latter event the accused may be sentenced only for the greater offense. Com. v. Doran, 145 Pa.Super. 173, 176, 20 A.2d 815. Where, however, one of the counts, as possibly the burglary count in the indictment in the present case, does not legally ......
  • Commonwealth v. Sutton
    • United States
    • Pennsylvania Superior Court
    • July 17, 1952
    ... ... "Here the offence was rape; it involved fornication, and ... bastardy resulted as an incident. There was but one act ... charged in the indictment, although it is called by different ... names, to meet the exigencies of the proofs on the part of ... the commonwealth." See also, Com. v. Doran, 145 ... Pa.Super. 173, 20 A.2d 815. In this case it is clear that we ... have two offenses arising from a single act ... Judgment ... is affirmed; and it is ordered that appellant, if released on ... bail, appear in the court below at such time as he may be ... there called and ... ...

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