The Commonwealth v. Capp
| Decision Date | 22 June 1864 |
| Citation | 48 Pa. 53 |
| Parties | The Commonwealth <I>versus</I> Capp. |
| Court | Pennsylvania Supreme Court |
George O. Deise, District Attorney, with whom was John H. Orvis, for the Commonwealth.—In the decision of this case the court sustained the demurrer, on the ground that a specific remedy was provided for the injury complained of, by the Act of the 20th of March 1845, and therefore the common law remedy by indictment could not be resorted to. The decision of this case depends upon the construction of the Act of the 21st of March 1806, and whether the common law remedy is absorbed by this statute. The obstruction of a highway is an offence at common law, which the Act of the 20th of March 1845 did not extinguish. The procedure by indictment at common law is still in force in Pennsylvania, notwithstanding the cumulative remedies given by statute. An indictment for nuisance is not within the provisions of the Act of 1806, although a statutory remedy be provided: Kelly v. Commonwealth, 11 S. & R. 346.
The Act of 1806 only applies when a specific method of procedure is directed by Act of Assembly; for when a new penalty is attached to a common law offence, then the indictment may still be at common law. The obstruction of a public highway being an indictable offence prior to the Act of the 20th of March 1845, that act did not create a new offence, but merely imposed an additional penalty for an existing offence. See Wh. Am. Crim. Law, 4th ed. § 10 (3); Turnpike Road v. People, 15 Wend. 267; Commonwealth v. Vansyckle, Bright. R. 69; Commonwealth v. Church, 1 Barr 105; Regina v. Wigg, 2 Salk. 460; Rex v. Robinson, 2 Burr. 805.
From the principles settled by these cases we contend that the common law remedy by indictment for nuisance was not taken away by the Act of 1845, and the judgment of the court on the demurrer should have been respondeat ouster.
Beardsley & Mayer, for defendant, moved to quash the certiorari because not specially allowed.
The opinion of the court was delivered, June 22d 1864, by WOODWARD, C. J.
The motion to quash the writ of certiorari, because it was issued without a special allocatur, was argued in connection with the question upon the record, and is first to be disposed of.
Notwithstanding the generality and comprehensiveness of the language of the Act of Assembly of June 16th 1836, defining the jurisdiction and powers of this court (Purd. 928), the construction given to it in The Commonwealth v. McGinnis, 2 Wh. 114, left in force the Act of April 13th 1791, which forbade a writ of certiorari to any person indicted for crime or misdemeanour, except upon special allowance by the Supreme Court, or a judge thereof, or by consent of the attorney-general; and under that act writs were always quashed on motion when not so allowed: Commonwealth v. Meyer, 2 S. & R. 453; Marsh v. Commonwealth, 16 Id. 319.
And the 33d section of our Act of March 31st 1860, Purd. 414, is a re-enactmen...
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Com. v. Coleman
...never adopted the common law rule upon which appellee's argument is predicated. Indeed, the rule was expressly rejected. In Commonwealth v. Capp, 48 Pa. 53, 56 (1864), our Supreme Court There is nothing in the disabling provisoes of the statutes to limit the right of the Commonwealth, and t......
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... ... matter of law, State v. Meyer, 63 N. J. Law, 233, 47 ... A. 485, 52 L.R.A. 346; People v. Swift, 59 Mich ... 529, 541, 26 N.W. 694; Commonwealth v. Capp, 48 Pa ... 53; Commonwealth v. Moore, 99 Pa. 570; District ... of Columbia v. Horning, 47 App. D. C. 413. We have never ... been called ... ...
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...a demurrer to a complaint, indictment, or information. People v. Barber, 348 Ill. 40, 180 N.E. 633, 92 A.L. R. 1137. See Commonwealth v. Capp, 48 Pa. 53. Under such circumstances, which do not raise any question of jurisdiction, a writ of error provides a method for the state to obtain such......
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