Commonwealth v. Samson , 76 Pa. Super. 226 ( 1921 )

Opinion by

Porter, J.,

The trial of the defendant upon an indictment containing two counts, the first charging larceny and the second receiving stolen goods, resulted in a verdict of guilty, and the court imposed sentence upon the first count. The defendant appeals from that judgment.

The defendant moved to quash the indictment, the only ground alleged for such action being: “Because the indictment against the above named defendant.does not contain the name of the prosecutor endorsed thereon.” The fact that no prosecutor’s name was endorsed on the bill returned by the grand jury was not ground for quashing the indictment. It is only when there is a private prosecutor, active in carrying on the proceeding, that his name, as such, is required to be endorsed upon the bill. If there be no such private prosecutor the defendant cannot refuse to plead. This was so under the Act of 1705, 1st Smith’s Laws 56; The King v. Lukens, 1st Dallas 5. The law has not been changed in this respect, but has been so amended by the Criminal Procedure Act of 1860, section 27, as to enable the court to determine the question in any case whether there is such a prosecutor, and who he is, and “if they shall be of opinion that there is such a prosecutor” to order his name to be endorsed on the indictment: Commonwealth v. New Bethlehem Boro., 15 Pa. Superior Ct. 164. When the name of the prosecutor, if any there be, is not endorsed upon the indictment, the proper practice is for the defendant to offer to prove that there is such a private prosecutor; it then becomes the duty of the court to hear the evidence and if upon such hearing it appears that there is a private prosecutor, or that the indictment is founded upon an information made by a private prosecutor, then his name should, by endorsement upon the indictment, be designated as the prosecutor. If it be established that there is a private prosecutor, the court ought not to require-the defendant to plead, unless the name of the prosecutor, as such, is endorsed upon the indictment, for tbe statute explicitly declares that “no person shall be required to answer to any indictment for any offense whatever,” unless that is done. This defendant did not stand upon tbe rights secured to him by tbe statute; when bis motion to quash was overruled, be voluntarily entered tbe plea of not guilty. Tbe first specification- of error is overruled.

There is no merit in tbe specification of error based upon tbe assertion that there was a variance between tbe allegation as to the ownership of tbe property in tbe indictment and the evidence, as to that fact, produced at tbe trial. Tbe indictment laid tbe ownership of tbe bonds, tbe subject of the larceny, in tbe State Bank of Philadelphia. Tbe evidence established that tbe State Bank was in lawful possession of tbe bonds, as a bailee for safe custody. That an allegation, in an indictment, as to the ownership of stolen property is sustained by evidence that tbe property was in tbe peaceable possession of that party as a bailee is too well established to require citation of authority. Tbe actual condition of tbe legal title is immaterial to tbe thief; so far as be is concerned, one may be taken as tbe owner who was in peaceable possession of it, and whose possession was unlawfully disturbed by tbe felonious taking.

Tbe indictment charged tbe larceny of three bonds. Tbe court submitted to tbe jury tbe question of tbe guilt of tbe defendant as to tbe larceny of one of tbe bonds, withdrawing from their consideration tbe evidence as to tbe other two. Nothing is better settled than that an indictment which charges tbe larceny of several distinct articles is sustained by proof of tbe larceny of any one of said articles. It was entirely proper for tbe court to instruct tbe jury that they might take into'consideration tbe admission of tbe defendant that be bad used tbe money of tbe bank, of which be was an employee, to purchase tbe bonds, in determining the credit to which bis story, as to tbe manner in which be obtained possession of tbe property was entitled. Tbe defendant only excepted to this particular instruction, and is not now in position to complain that the charge, as to other matters, was inadequate.

When an indictment contained repugnant counts the proper practice, at common law, was to move to quash. The defendant was not, after a conviction, entitled to. have the judgment arrested on all the counts, but the court imposed sentence only upon the counts which were consistent. Under the Criminal Procedure Act of 1860, section 24, it is proper, in separate counts, to charge a defendant with larceny and the receiving of stolen goods, and the indictment can no longer be quashed for that reason. When, upon the trial of such an indictment, the jury renders a general verdict of guilty, the common law principle must prevail; the defendant is not entitled to have the judgment arrested, but, when the counts refer to the same property, the court should impose a sentence which is sustained by one of the counts, and not a distinct sentence upon each count. All the specifications of error are overruled.

The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.