Commonwealth v. Shutte , 130 Pa. 272 ( 1889 )

Per Curiam :

The defendant below was convicted of the offence of larceny as bailee. The indictment contained two counts; one charging robbery, and the other larceny as bailee. It was found in the Quarter Sessions, and certified into the Oyer and Terminer. The jury acquitted the defendant upon the count charging robbery, and she now contends that the count upon which she was convicted was improperly joined with that for robbery, which is exclusively triable in the Ctyer and Terminer. In other words, that the Oyer and Terminer can only try indictments found in the Quarter Sessions, and certified into the Oyer and Terminer according to law, and that, under § 32, act of March 31, 1860, P. L. 438, the Court of Quarter Sessions can only lawfully certify indictments found in the Quarter Sessions for crimes or offences not triable therein. The answer to this objection is obvious. The indictment charges robbery, which is triable exclusively in the Oyer and Terminer; hence it was properly certified into that court. Does the fact that it also contained a count for an offence triable in the Quarter Sessions oust the jurisdiction of the Oyer and Terminer? If so, we would have the anomaly of an indictment which could not be tried in either court. The Quarter Sessions could not certify one count only into the Oyer and Terminer. Nor do we think there was a misjoinder. While the evidence is not given, it is manifest that both counts were for substantially the same of-fence. The higher offence was not proven, but the defendant was convicted of the larceny as bailee, of the same property referred to in the first count. The offence charged in the second count was not repugnant to that charged in the first. It was a constituent part of the same offence. The general rule is well settled that upon an indictment charging a particular crime the defendant may be convicted of a lesser offence in eluded within it. A person charged with burglary may be convicted of larceny: Hunter v. Commonwealth, 79 Pa. 503. A count charging assault with intent to ravish maybe included in a count charging rape : Harman v. Commonwealth, 12 S. & R. 69. These authorities, and many others that might be cited,show that there was no misjoinder. Nor was the defendant injured in any way. Her rights were not jeoparded by thé joinder of the two counts, nor was she deprived thereby of any legal benefit or privilege at the trial. Her objections are purely technical, and without merit. As was observed in Hunter v. Commonwealth, supra: “ The tendency of modern legislation and judicial decision is to disregard mere technicalities, and to regard the substance rather than the form.”

Judgment affirmed.