Commonwealth v. Johnston

• Decision Date: 21 January 1902
• Docket Number: 1-1902
• Citation: 19 Pa.Super. 241
• Parties: Commonwealth ex rel., Appellant, v. Johnston
• Court: Pennsylvania Superior Court

19 Pa.Super. 241

Commonwealth ex rel., Appellant, v. Johnston

No. 1-1902

Superior Court of Pennsylvania

January 21, 1902

Argued December 2, 1901

Petition for rule for habeas corpus in case of Commonwealth ex rel. Alexander Bergman v. William Mc.C. Johnston, Warden of the Western Penitentiary of Pennsylvania.

John Marron, of Marron & McGirr, for the relator.

William B. Rodgers, contra.

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

OPINION

RICE J.

It appears by the petition and answer that the petitioner is now confined in the western penitentiary by virtue of commitments in execution of judgments of the court of quarter sessions of Allegheny county upon three several indictments, laid on different days, each of which charged that the petitioner " with force and arms, feloniously did wilfully and maliciously enter the building of the Carnegie Steel Company, an association of limited partnership under the laws of this state, there situate, with intent to commit a felony in said building, contrary to the form," etc. The petitioner claims that he is being unlawfully restrained, and is entitled to discharge upon habeas corpus, because the indictments upon which the judgments were entered charged no offense indictable under the common law or the statute law of Pennsylvania.

It is apparent upon inspection of the copies of the indictments set forth in the petition that the crime intended to be charged was that prohibited by section 2 of the Act of April 22, 1863, P. L. 531. The defendant could not fail to understand that this was the specific charge he was called upon to meet. In this material particular the case differs from Hollister v. Commonwealth, 60 Pa. 103, where the Supreme Court said: " It would not do to hold a defendant convicted on an indictment in form for burglary, strictly, liable to be sentenced under this section (136) by changing the averments, or assuming them to be so changed to suit the conviction." The section, so far as material here, reads as follows: " If any person shall, in the day time, break and enter any dwelling house, shop, warehouse, store, mill, barn, stable, outhouse or other building, or wilfully and maliciously, either by day or by night, with or without breaking, enter the same, with intent to commit any felony whatever therein, the person so offending shall be guilty of felony," etc. It cannot be successfully claimed that this crime cannot be committed in any other building than those specifically mentioned. It is too plain for argument, that the word " building" was inserted in the act for a purpose, and cannot be struck out by judicial construction. The question is, whether the omission to specify in the indictment the character, or other description, of the building is such a defect as vitiates the judgment. It is to be noticed that this is a statutory crime, that is to say, the crime that is prohibited is defined by the statute.

In discussing this question, we are not to be understood as passing on the sufficiency of an indictment in the case of a statutory prohibition of a common-law offense by name, without further description, as for example, larceny, where the statute does not define what larceny is. Where the offense is purely statutory, having no relation to the common law -- where, in other words, the statute specifically sets out what acts shall constitute the offence, -- it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter: 1 Bish. Cr. Proc. sec. 611. This principle is embodied in section 11 of the criminal procedure act of 1860, which provides that every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of assembly prohibiting...