Commonwealth v. O'Malley
| Decision Date | 30 April 1923 |
| Docket Number | 110-1923 |
| Citation | 81 Pa.Super. 100 |
| Parties | Commonwealth v. O'Malley, Appellant |
| Court | Pennsylvania Superior Court |
Argued March 12, 1923
Appeal by defendant, from judgment of Q. S. Allegheny County, Nov sessions, 1921, No. 656, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Elizabeth O'Malley.
Indictment for fortune telling. Before Kline, J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.
Errors assigned were refusal to quash the indictment, various rulings upon evidence, and the judgment of the court.
Affirmed.
Horace J. Miller, for appellant. -- The court is without authority to compel a defendant in a criminal case to produce books or papers to be used against him: Boyle v. Smithman, 146 Pa. 255; Counselman v. Hitchcock, 142 U.S. 547; Grant v. U.S. 227 U.S. 74.
John D Meyer, Assistant District Attorney, and with him Samuel H Gardner, District Attorney, for appellee.
Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
The defendant was convicted of fortune telling under the Act of April 8, 1861, P. L. 270. The prosecution was begun by a complaint before a police magistrate on October 6, 1921. The same day a warrant was issued to three police women. The defendant was arrested October 14, 1921, and at a hearing on the following day was held to the quarter sessions under bail. Three grounds of complaint are suggested in the assignments: (A) A refusal of the court to quash the indictment; (B) The admission in evidence of articles alleged to have been taken from the defendant at the time of her arrest; (C) The admission of the evidence of a witness in rebuttal.
The motion to quash the indictment was based on the refusal of the court to require the Commonwealth to furnish a bill of particulars. No precedents are cited to support the position taken. The right of a defendant to a bill of particulars in some cases is not to be questioned, and where such refusal has prejudiced the accused in the trial of the case, relief might be had by exception and appeal, but the application affords no foundation for quashing the indictment. It is regular on its face, is supported by an act of assembly, and its sufficiency is in no wise impeached by the action of the court in refusing to require a bill of particulars.
The 2d 3d, 4th and 5th assignments relate to the same subject. The defendant conducted her business in a large room or hall where she was when the police officers made the arrest. The room contained chairs and a table. A black handbag and an account book were on the table. There was a document purporting to be a charter for a spiritualist's church. The black bag contained some small bags said by the defendant to be incense charms. There was also a pasteboard sign on which was inscribed " Please place donations here." This was also on the table. These articles were taken possession of by the officers when the defendant was arrested and were offered in evidence at the trial. Objection was made to the evidence on the ground that they were obtained in violation of sections 8 and 9, article I, of the Constitution of the State securing to the defendant protection against unreasonable search and compulsion to give evidence against herself in a criminal case. It appears from the evidence that at the time the articles referred to were taken, other persons were in the room. It was a place resorted to by people from time to time. The articles taken were open to the observation of bystanders and the alleged charter was publicly exhibited; the black handbag was on the table and one at least of the small bags was sold to one of the police women. The record does not disclose the contents of the account book and it may be left out of consideration. Whatever the significance of these exhibits may have been, it is manifest they were not obtained by any such search or seizure as is referred to in the Constitution. If they had any relevancy in the case, they were used in the conduct of the defendant's business as a fortune teller and dealer in charms and as such were properly taken possession of by the officers. It is the right of an officer making an arrest for the commission of a crime to take from the accused any articles which were the fruits or facilities of the crime and which might be used as evidence at the trial of the defendant: 1 Bishop on Criminal Procedure 211; Wharton's Criminal Pleading and Practice, 8th ed. 60; Weeks v. U.S. 232 U.S. 383; U.S. v. Murphy, 264 F. 842; Newberry v. Carpenter, ...
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