Commonwealth v. Miller

• Decision Date: 20 October 1884
• Citation: 107 Pa. 276
• Parties: Commonwealth <I>versus</I> Miller et al.
• Court: Pennsylvania Supreme Court

107 Pa. 276

Commonwealth versus Miller et al.

Supreme Court of Pennsylvania.

October 8, 1884.

October 20, 1884.

October 8th, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

Error to the Court of Quarter Sessions of Westmoreland county: Of October Term, 1884, No. 71.

Hazlett (with whom were Williams and A. M. Sloan, District Attorney) for plaintiff in error.—The two offences are of the same nature and were committed against the same person at the same time. As both are misdemeanors, the joinder would not vitiate the indictment: Commonwealth v. Gillespie, 7 S. & R. 476; Wharton's Precedents of Indictments and Pleas, p. 31, 4th edition; even in felonies an indictment may charge in one count felonious acts with respect to several persons, if it was all one transaction: 1 Bish. on Crim. Pro. 1st ed. § 189 and 192: Fulmer v. Commonwealth, 97 Pa. St. 503. But even if there be duplicity in the indictment as alleged, the defect cannot be taken advantage of by motion in arrest of judgment: Wharton Criminal Law, § 395; Kilrow v. Commonwealth, 8 Norris 489. The indictment conforms to established precedents: Wharton's Precedents of Indictments and Pleas 4th edition, page 489.

Head (with whom were Moorhead and H. W. Walkinshaw) for defendants in error.—Forcible entry and forcible detainer are separate and distinct offences: Commonwealth v. Toram, 3 Clark 346: Same v. Rogers, 1 S. & R. 124; 2 Whar. Cr. L. 8th ed. § 1110. Act of March 31st, 1860, §§ 21, 22. It is well settled that separate and distinct offences cannot be joined in one count: Fulmer v. Commonwealth, 1 Out. 506; Hutchison v. Commonwealth, 1 Norris 478. A motion in arrest of judgment is the proper practice: Whar. Cr. Pl. & Pr. 8th ed. §§ 243-298; Commonwealth v. Fry, 14 Wr. 245.

Mr. Justice CLARK delivered the opinion of the court, October 20th, 1884.

The defendants were tried on an indictment charging them with forcible entry and detainer; the jury returned a verdict of not guilty, but that the defendants pay the costs. The defendants moved in arrest of judgment that the offences with which they were charged were distinct and separate, that they were coupled in one court, and that the indictment was bad for duplicity. The court sustained the motion and arrested the judgment, and this is assigned for error.

If there be duplicity in this indictment, the defendants may take advantage of the defect by motion in arrest of judgment; if they had voluntarily entered their plea and put themselves upon trial, they could not now, perhaps, relieve themselves from the consequences of an adverse verdict in this form; but they sought to avail themselves of this alleged defect at every stage of the case, and after verdict they were without doubt entitled to have the judgment arrested — if the indictment was bad for the reasons stated.

Several distinct misdemeanors may be charged in the different counts of the same indictment, but an indictment which charges distinct and separate offences in a single count, is generally bad for duplicity, and upon proper application will be quashed; the grand jury should be allowed to pass upon the charges separately: Hutchison v. Com'th, 1 Norris 478; Kilrow v. Com'th, 8 Norris 489; Fulmer v. Com'th, 1 Out. 506.

It is contended that forcible entry and forcible detainer are distinct offences, and that as they are coupled in a single count, the indictment is bad. It must be conceded, of course, that under the 21st and 22d sections of the Crimes Act these offences are, in the abstract, distinct and separate; the provisions of the statute are plain, and it is unnecessary by any proper definition of each to draw the distinction between them. But this distinction was as clearly defined before the Act of 1860, as since. An indictment for forcible entry was sustainable at common law; by the statute 15 Rich. II. remedy was given against forcible entries and detainers, but it was by the statute of 8 Henry VI. c. 9, that forcible detainers after a peaceful entry was declared to be a distinctive offence, whilst restitution of possession was rendered pursuant to the Act of 21 Jac. 1, c. 15. These statutes were held to be in force in Pennsylvania,...