Commonwealth v. Keenan

• Decision Date: 03 January 1871
• Citation: 67 Pa. 203
• Parties: The Commonwealth <I>versus</I> Keenan and Clark.
• Court: Pennsylvania Supreme Court

67 Pa. 203

The Commonwealth versus Keenan and Clark.

Supreme Court of Pennsylvania.

November 22, 1870.

January 3, 1871.

November 22d 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Certiorari to the Court of Quarter Sessions of Allegheny county: No. 219, to October and November Term 1869 H. H. McCormick and L. B. Duff (with whom was A. L. Pearson, District Attorney), for the Commonwealth.—An indictment will not be quashed unless defective on its face: Commonwealth v. Church, 1 Barr 105. The innuendo is to explain by averment words of a double or doubtful meaning: Bornman v. Boyer, 3 Binn. 515; Thompson v. Lusk, 2 Watts 17; McKennon v. Greer, Id. 353; Hays v. Brierly, 4 Id. 392; Vanderlip v. Roe 11 Harris 82. The definition of libel under the Revised Criminal Code (Act of March 31st 1860, § 24, Purd. 221, pl. 26) is the same as at common law: Steele v. Southwick, 9 John. R. 214; Southwick v. Stevens, 10 Id. 443; Root v. King, 7 Cow. 613; Cooper v. Greeley, 1 Denio 347.

W. D. Moore, for the defendants.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

The strictness of criminal pleading has found its greatest rigor and its highest reason in a country where, in the time when Sir William Blackstone wrote, one hundred and sixty offences were punishable with death. Humane judges would catch at any slip when a life was to be saved. But in this state, where but a single crime is capital, and where the whole criminal code is administered in mildness and mercy, there is no such reason for strictness of pleading. Therefore it was said by Justice Sergeant, in Sherban v. Commonwealth, 8 Watts 213, that it is sufficient in indictments that the charge be stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the proper judgment thereon. Over-nice exceptions, he says, are not to be encouraged, especially in cases which do not touch the life of the defendant. Following out this view, the revisers of the late criminal code gave it form and body in the 11th section of the Criminal Procedure Act of 31st March 1860, by providing 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 the crime, or, if at common law, so plainly that the nature of the offence charged may be easily understood by the jury. The act then proceeds to direct when a motion to quash for formal defects shall be made, it shall be before the jury shall be sworn; and to provide for amendments of such defects by the court. Thus it is evident from the current both of decision and legislation, that criminal pleading is no longer the technical thing it was, and that courts should look more to substantial justice than artificial nicety. It may not be very important, and yet it is not amiss to say, that a libel is now a statutory offence under the 24th section of the Act of 31st March 1860.

With these principles in view it is very clear that the court below committed a grave error in quashing the indictment in this case for the reasons filed. The indictment sets forth a libel in proper form, and with sufficient averments. Where no new fact is essential to the frame of the indictment and necessary to be found by a grand jury as the ground of a colloquium which cannot be dispensed with, and the only object of introducing an innuendo is to give point to the meaning of the language of the libel, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the words used. It belongs to the jury to say whether the meaning averred in the innuendo expresses the true meaning of the words. The intent of the author in writing the words is a question of fact and not of law, and may be drawn from intrinsic evidence. If, therefore, there be anything on the face of the libel to give color to the innuendo, it must be left to the jury to pass upon the meaning averred. It is immaterial, says Archbold, in his Criminal Pleading 463, whether the libel impute crime, &c., to the prosecutor in a direct manner, or indirectly by such hints or modes of expression as are likely to convey the intended meaning to the person to whom the libel was published; taking the words in the same sense in which the rest of mankind would ordinarily understand them, it is for the jury to say whether, in their minds, they convey the idea imputed. Therefore, where one man said of another that "his character was infamous, that delicacy forbade him from bringing a direct charge, but it was a male child who complained to him," such words were understood to mean a charge of unnatural practices, and to be sufficiently certain in themselves without the aid of an innuendo. It will be found, on an examination of the authorities, that this is even more emphatically the rule in this state, because the office of the innuendo has been extended beyond the limits assigned to it elsewhere. Hence, in view of the use of the innuendo as understood here, it was the right of the prosecutor in this case to have gone to the jury and asked for a conviction on this indictment, or on so much of it as under the instruction of the court they might find sufficient to support the charge of libel. In this respect the power of the petit jury is larger than that of the grand jury. Though a grand jury may ignore a count, they cannot find less than the whole of any one count; but the petit jury may find part of a count, provided the part found be in itself a substantial offence within the charge of the indictment: 1 Chitty's Crim. Law, ed. 1836, page ^*296. Thus, in an indictment for the larceny of a horse, saddle and bridle, the petit jury may convict of the larceny of the horse alone. So in an indictment for both an assault and battery, they may acquit of the battery and convict of the assault. A verdict of felonious manslaughter also may be rendered upon an indictment for murder. If, therefore, some of the innuendoes in this case extended the meaning of certain parts of the libel too far, but others remained sufficient to give point to it, the petit jury would have a right to convict under the latter alone. And even if all the innuendoes be defective, yet the prosecutor has a right to proceed in order to subject the defendant to costs; for even under a defective indictment the petit jury may impose the costs upon him: Commonwealth v. Tilghman, 4 S. & R. 127; Commonwealth v. Harkness, 4 Binn. 194; Baldwin v. Commonwealth, 2 Casey 171. Besides, it is one of the consequences of quashing the indictment that the recognisances of the bail are discharged: 1 Chitty's C. L., ed. 1836, p. ^*300. And when the application comes from the defendant, says Mr. Chitty, the courts usually refuse to quash when the indictment is for a serious offence, unless upon the clearest and plainest ground, but will drive the party to a...