Commonwealth v. Wood , 2 Pa. Super. 42 ( 1896 )

Per Curiam,

Sec. 11 of the Criminal Procedure Act of March 31, 1860, (P. L. 427) provides : “ Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment before the jury shall be sworn and not afterward.” The indictment in this case charged, in apt terms, a forgery under sec. 169 of the act of March 31, 1860 (P. L. 422), which is a misdemeanor, but in addition to the words necessary to charge that offense the word “ feloniously ” was inserted. Where it is apparent on the face of the indictment that the crime would not amount to a felony, the word felonious being repugnant to the offense charged may be rejected as surplusage : Wh. Cr. L. sec. 400, (ed. 1861). This is in harmony with our own decisions. In Staeger v. Com., 103 Pa. 469, Justice Paxson said: “There can be no doubt that the last count of the indictment was framed under the 138th section, and was intended to charge a misdemeanor only. The pleader however has inserted the word ‘ feloniously.’ If the act charged was a misdemeanor this mistake of the pleader cannot avail after verdict. It was surplusage, and if objection had been taken at the trial, could have been stricken out. Mere technical matters which do not affect the merits, receive much less consideration now than they did a century ago.” This seems to be conclusive of the question.

The judgment of the court of quarter sessions is affirmed, and it is now ordered here that B. E. Wood the appellant be remanded to the custody of the keeper of the Western Penitentiary in the city and county of Allegheny, there to be confined according to law, and the sentence of the court below, for the residue of the term to which he was sentenced, and which had not expired on the 30th day of March, 1896, when the appeal in this case was entered, and that the record be remitted to the said court, with instructions to carry this order into effect.