Commonwealth v. Trimmer

• Decision Date: 07 May 1877
• Citation: 84 Pa. 65
• Parties: Commonwealth <I>versus</I> Trimmer <I>et al.</I>
• Court: Pennsylvania Supreme Court

84 Pa. 65

Commonwealth versus Trimmer et al.

Supreme Court of Pennsylvania.

March 6, 1877.

May 7, 1877.

March 6th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Certiorari to the Quarter Sessions of Luzerne county: Of January Term 1877, No. 162.

Edward H. Chase, Henry W. Palmer and Charles E. Rice, for Commonwealth.—Will an acquittal upon an indictment for forgery of the election returns for "Blakely" bar a prosecution of the same offence for forging the returns from "Old Forge?" No doubt has been suggested that the returns are records and the subject of forgery. These returns are as unlike as papers can be; no two are made by the same man or at the same time or place, and have no connection, relation or dependence on each other, and it is manifest, therefore, there may be as many forgeries as there are returns.

By demurring the Commonwealth only admitted that the defendants had been acquitted of forging the returns of Blakely, nothing more, and the court, in disposing of this demurrer, was bound to look at the whole record, which would have disclosed that the acquittal pleaded and the offence charged were not the same. The true test to ascertain whether a plea of autrefois acquit is a good bar is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first: 1 Bishop's Crim. Law, sect. 1052, and cases cited; 1 Whart. Crim. Law, sect. 565; Heikes v. The Commonwealth, 2 Casey 513.

Apply this test to this case. Could the defendants have been convicted of forging the returns from Old Forge on an indictment for forging the returns from Blakely? In each count of the indictment they are charged with the specific offence of forging the returns from Blakely. Would evidence of a forgery of returns from Old Forge have been competent on that trial?

Stanley Woodward, contrà.—The demurrer admitted the truth and full effect of the plea, but apart from this it can be sustained on its merits. The records of an election are one paper, and the offence is not against the township but against the county, and is complete when an alteration is made in a single tally.

Mr. Justice MERCUR delivered the opinion of the court, May 7th 1877.

This case is controlled by the effect to be given to the pleadings. The indictment substantially charges that the defendants forged, defaced, withdrew and falsified tally papers, certificates, documents and records, taken and made at the general election held on the 2d day of November 1875, in and for the township of "Old Forge." The defendants plead autrefois acquit, setting forth at length another indictment, which charged them with having committed the same offences in regard to the tally papers, certificates, documents and records, taken and made at a general election held on the same day, in and for the "Southern District of the township of Blakely," and averred a trial and acquittal on said indictment "as by the record of the said proceedings now here appears." They further averred that the felony and misdemeanor charged in that indictment, were one and the same felony charged in the present indictment, and this they were ready to verify, &c. To this plea, the Commonwealth demurred generally. The court overruled the demurrer, sustained the plea of autrefois acquit, and ordered the defendants to go without day.

This judgment of the court is assigned for error.

As a general rule a demurrer admits the facts pleaded and refers the question of their legal sufficiency to the decision of the court. To give this effect to the demurrer the facts must be well pleaded: Hancocke v. Prowd, 1 Saund. 337 b, n. 3; Jones v. Stevens, 11 Price 235.

Here the defendant's plea set forth the record of an acquittal on an indictment charging an offence in regard to the returns of an election held in another township. It did not aver that the townships named in each indictment were one and the same township. Bearing different names the legal presumption is that they were separate and distinct townships. The plea alleges no fact repelling that presumption.

It is contended that the same election is described in each indictment, and that therefore that each offence was committed by one and the same act. In one sense it may be said that it was the same election: but in many others it was not. Each was a district in which the qualified voters thereof might vote in the election of the same officers, but it does not necessarily follow that the votes were cast for the same persons. John Doe may have received all the votes cast, for a particular office, in one township, and Richard Roe all cast for the same office, in the other township. A fraudulent alteration of the records, showing the number of votes cast in one township, would not add to or take from, the true number cast in the other...