Commonwealth v. Levine
| Decision Date | 19 November 1923 |
| Docket Number | 248-1923 |
| Citation | 82 Pa.Super. 105 |
| Parties | Commonwealth v. Levine, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 6, 1923
Appeal by defendant, from judgment and sentence of O. and T., Phila. Co.-1922, No. 517, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Samuel Levine.
Indictment for arson. Before Terry, P. J., 44th Judicial District specially presiding.
The opinion of the Superior Court states the case.
Verdict of guilty on which judgment of sentence was passed. Defendant appealed.
Error assigned, among others, was refusal to give binding instructions in favor of defendant.
Herbert W. Salus, and with him Samuel W. Salus, for appellant. -- The defendant was improperly convicted under the charge of arson James Smith W. M. Co. v. Browne, 206 Pa. 543; Getz v. Brubaker, 25 Pa.Super. 303; Com. v Kaufman, 9 Pa.Super. 310; Dilworth v. Schuylkill I Land Co., 219 Pa. 527.
John H. Maurer, Assistant District Attorney, and with him Samuel P. Rotan, District Attorney, for appellee. -- The Act of June 10, 1881, P. L. 117, is constitutional and the defendant was properly convicted: Getz v. Brubaker, 25 Pa.Super. 303; Phila. & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. 20, 60, 61; Cyc. 1105; Reiser v. The William Tell Saving Fund Association, 39 Pa. 137; Haley v. Philadelphia, 68 Pa. 45; Lambertson, et al. v. Hogan, et al., 2 Pa. 22, 25; Manchester Township Supervisors v. Wayne County Commissioners, 257 Pa. 442; Searight's Est; Stuart's App., 163 Pa. 210; Davis v. Moore, 50 Pa.Super. 494; Pinkerton v. Traction Co., 193 Pa. 229; Garrett v. Turner, 47 Pa.Super. 128; and affirmed in 235 Pa. 383; Com. ex rel v. Cooper, 277 Pa. 554.
Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
The indictment charges the defendant, Samuel Levine, with having maliciously burned a certain dwelling house of another. Levine was a tenant in possession under a lease for years. The question presented is, can a tenant in possession be convicted of setting fire to the leased premises? The Act of June 10, 1881, P. L. 117, provides: " Section 1, Be it enacted, etc., that no principle or policy of law shall, because the defendant shall have been in possession as tenant or otherwise at the time of the commission of the offense, exempt any person from conviction and punishment, who shall wilfully and maliciously burn or cause to be burned, or cause or attempt to set fire to, any building, but such person shall be liable to conviction and punishment, in the same manner and to the same extent as if not in possession." If this act be valid, there is an end to the matter.
The defendant contends that the act is unconstitutional. The first reason assigned is that it amends section 137 of the Act of March 31, 1860, P. L. 415, and contravenes article III, section 6, of the Constitution of Pennsylvania, which reads: " No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended or extended or conferred shall be reenacted and published at length." The 137th section of the above act punishes inter alia the burning of the dwelling house of another and as stated, before, that is the charge in the indictment.
It will be observed that the act we are considering contains no reference to the Act of 1860, either by allusion to its title or by quoting the portion of the former act to be amended or reenacted. The Act of 1881, supra, in effect states that possession as tenant of the property shall not relieve from liability the person who has maliciously burned it. At common law, a tenant in possession could not be convicted of arson for burning the leased premises: 4 Bl.Com. 211; 1 Hale P. C. 568; 1 Hawk. P.C. 106. It was to change this rule that this act was passed. We do not regard the act as changing the provisions of section 137 above referred to. The Act of 1881 has relation to the status of a tenant in regard to the crime of the malicious burning of buildings. The new statute was not enacted to change the Act of 1860, that remains exactly as heretofore, but its purpose was to get rid of the decisions of the courts, which held the tenant immune, because he was regarded as the owner, although some one else had the fee. As stated above, the tenant in possession was not exempt from criminal liability by reason of anything in the Act of 1860, but was made so by the common law. The Act of 1881 is complete in itself and needs no reference to any other act, nor does it change the provisions of any act.
If however, we take the view that the Act of 1881 does change the Act of 1860 in that it makes it apply to a class of persons which theretofore were not covered by it, we repeat what was stated by the learned trial judge, that such operation of an act complete in itself does not render it invalid. The constitutional provision has reference to express amendments only. The Constitution does not make the obviously impracticable requirement that every act shall recite all other acts that its operation may incidentally affect, either by way of repeal, modification, extension, or supply: Searight's Est., Stuart's App., 163 Pa. 210; Greenfield Avenue, 191 Pa. 290. To use an illustration: under the common law dogs were not the subjects of larceny and the act making them personal property and the subjects of larceny was attacked on constitutional grounds, but...
To continue reading
Request your trial