Commonwealth v. Gallagher

• Decision Date: 15 December 1898
• Docket Number: 21-1897
• Citation: 9 Pa.Super. 100
• Parties: Commonwealth v. Joseph W. L. Gallagher, Appellant
• Court: Pennsylvania Superior Court

9 Pa.Super. 100

Commonwealth v. Joseph W. L. Gallagher, Appellant

No. 21-1897

Superior Court of Pennsylvania

December 15, 1898

Argued October 24, 1898

Appeal by defendant, from sentence of Q. S. Clearfield Co., May Sess., 1894, No. 46, on verdict of guilty.

Indictment for carrying concealed deadly weapons, carrying deadly weapons, and assault. Before Gordon, P. J.

It appears from the record that the indictment in this case contained three counts: the first charges the statutory offense under the act of 1876 carrying concealed deadly weapons with intent, etc. The second count charges simply the carrying of a deadly weapon, to wit: " a revolver," a " pistol, revolver, dirk-knife and slung shot" without any averment that they were concealed, or that they were carried with " intent therewith unlawfully and maliciously" to do injury to some person. The third count was for an assault.

The jury found a verdict of guilty on second count of indictment upon which verdict sentence was entered. Defendant appealed.

Errors assigned were in overruling defendant's motion in arrest of judgment. In passing sentence on defendant as he was convicted of no crime.

A. L Cole, with him H. A. Moore, for appellant. -- We have been unable to find any act of assembly making the offense as charged in the second count of the indictment and one punishable by law and we ask that this sentence be arrested.

A. H Woodward, district attorney, for commonwealth. -- The only counts submitted to the jury were that charging carrying concealed weapons and that charging assault. The court and jury regarded the count charging assault as the second count and rendered verdict accordingly. The defendant was clearly guilty, and was properly convicted, and we submit that the judgment should not be arrested.

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

OPINION

WILLIAM W. PORTER, J.

The indictment in this case contains three counts, the first charging the statutory offense of carrying concealed deadly weapons with malicious intent; the second charging the carrying of a deadly weapon with no averment of concealment or malicious intent; and the third charging an assault. The defendant moved in arrest of judgment. The court below refused the motion.

This case discloses one of those accidents that sometimes creep into the trial of a cause despite the care that is exercised in the administration of...