Commonwealth v. Kreisher

• Decision Date: 13 July 1922
• Docket Number: 17-1922
• Citation: 79 Pa.Super. 428
• Parties: Commonwealth v. Kreisher, Appellant
• Court: Pennsylvania Superior Court

79 Pa.Super. 428

Commonwealth v. Kreisher, Appellant

No. 17-1922

Superior Court of Pennsylvania

July 13, 1922

Argued April 13, 1922

Appeal by defendant, from judgment of Q. S. Bucks County, Sept Sessions, 1920, No. 30, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. Mahlon Kreisher.

Indictment for felonious entry, larceny, and receiving stolen goods. Before Ryan, P. J.

The opinion of the Superior Court states the case.

Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

Errors assigned, inter alia, were refusal of defendant's motion to quash the indictment, in arrest of judgment, and for new trial.

Harman Yerkes, for appellant.

Hiram H. Keller, District Attorney, for appellee.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

LINN J.

Appellant was tried and convicted of charges made in fourteen bills of indictment; a new trial was granted as to four, and sentence was suspended as to nine. He was sentenced on a bill charging felonious entry, larceny and receiving stolen goods and has appealed, alleging errors, now considered in the order stated in the argument presented on his behalf.

The first assignment asserts that " appellant did not have a fair, impartial and judicial trial in the court below." In support of that the brief states that " It appears by the informations filed in this and other cases that the defendant, together with six others was charged with felonious entry and kindred offenses committed as alleged by all of the defendants jointly who were indicted in fifty-three bills of indictment, upon which they were proceeded against in the court below in separate trials. That the last offenses were alleged to have been committed on July 1, 1920. That a true bill was found against the defendant in the issue now before this court on September 15, 1920. The district attorney, by authority of his office, elected to try all of the other defendants before calling the case now before the court and it was not until June 13, 1921, almost a year after the offense was committed that the defendant was put upon his trial after all of the other persons charged in said bills of indictment had been tried and had been convicted or entered pleas of guilty, excepting one Charles Jacobs whose trial occurred at the sessions before the defendant was put upon trial and who was acquitted." As the record contains nothing to show that what was done, as so described, was not done for some legal reason, we may not assume that it was done in circumstances prejudicial to appellant. The presumption is the other way. Moreover, we learn from the brief of the Commonwealth, that " the other defendants, who were in prison awaiting trial, were given precedence. This defendant on at least one, if not two occasions, agreed and requested that his case be continued for the term...." The defendant had been admitted to bail. The first assignment of error is overruled as unsupported by anything in the record.

The second, third and fourth assignments are grouped in appellant's argument. The second complains of the refusal to quash the indictment; the third, of the refusal to arrest the judgment; and the fourth of the refusal to grant a new trial. The motion to quash was based on the proposition that as the informations showed that a number of persons were charged with having committed offenses, they should have been indicted together and not separately, and that section 65 of the Act of March 31, 1860, P. L. 427, and the Act of March 10, 1905, P. L. 35, prohibited the separate indictment of the parties jointly accused in the information.

Section 65 of the Act of 1860 and the Act of 1905 were intended to prevent duplication of costs. The former provides that " in all cases where two or more persons have committed an indictable offense, the names of all concerned, if a prosecution shall be commenced, shall be contained in one bill of indictment, for which no more costs shall be allowed than if the name of one person only was contained therein." The Act of 1905 makes it unlawful to duplicate any return, complaint, information, indictment, warrant, subpoena or other writ where the offenses charged grew out of the same transaction, when one can be legally made to serve and promote the due administration of justice. Obviously, that legislation regulates costs, (Com. v. Smith, 62 Pa.Super. 288) and does not change the long established rule that when more than one join in the commission of an offense, all or any of...