Commonwealth v. Ault , 10 Pa. Super. 651 ( 1899 )

Opinion by

W. D. Poster, J.,

The appellant offered evidence, upon his trial in the court below, tending to show that he was under the influence of liquor at the time of the alleged offense. The court charged the jury as to the general effect of drunkenness, when established by evidence, to excuse crime, and the rule applicable to such a case when the burden was upon the commonwealth to establish a felonious intent. The first specification of error complains of the court in charging the jury upon that question. The complaint is not that there was error in the statement of the law, but that because defendant’s counsel did not in his address to the jury assert that drunkenness was an excuse for crime, simply arguing that the defendant was so drunk that he did not know that he had possession of the stolen property, the charge of the court ought to have been confined to the bearing of the evidence upon that one fact. The evidence was before the jury for all purposes, and it was not error for the court to instruct the jury as to the effect of all the facts, which they found to be established by that evidence, upon the question of the guilt of the defendant. The instructions upon this question were, certainly, as favorable to the defendant as the law warranted, and the first specification is overruled.

The second specification is based upon the answer of the court to defendant’s fourth point. The court affirmed the point, and then, in substance, explained that possession of stolen goods, in order to be evidence of guilt, must be recent, personal, exclusive, and with distinct assertion of ownership; and that if the defendant, being drunk, did not know that he had possession of the goods, he ought not to be convicted. With some of the elements of the character of the possession necessary to sustain a conviction of receiving stolen goods, stated in this explanation, the commonwealth might have found fault, but the defendant had no just ground for complaint. If goods which had recently been stolen were found in his personal and exclusive possession and he knew that he so had them in his possession, that was evidence which it was proper for the jury to consider, in connection with all the evidence in the case, in passing upon the question of the guilt of the defendant. The second specification is overruled.

The third, fourth and fifth specifications of error relate to the sufficiency of the second count of the indictment, upon which, alone, the appellant was convicted. The indictment contained two counts, the first charging larceny and the second receiving stolen goods. The only defects alleged against the second count are that it fails to allege the value and ownership of the property, and that, if it does make such allegation, the goods were the property of different owners and could not be charged in the same count. The first count described the property and laid the value and ownership as, “ One knee blanket, of the value of five dollars, and one buggy whip, of the value of fifty cents, the property of A. O. Wilson; one fur robe, of the value of six dollars, the property of G. W. Heeter,” etc., giving the value and ownership of various specific chattels and alleging the aggregate value of the whole lot. The second count charged the felonious receiving of “ the said one knee blanket, one buggy whip, one fur robe,” etc. When the first count of an indictment properly charges the larceny of certain specific chattels, alleging the value and ownership thereof, and the second count charges the felonious receiving of “the said” chattels, enumerating the same, the words “the said ” refer to the first count, and the allegations as to ownership and value set forth in that count are to be read into the second count. Every count should appear, upon the face of it, to charge the defendant with a distinct offense, yet one count may refer to matter in any other count, so as to avoid unnecessary repetitions, and, though the count referred to should, in some other respect, be defective or be rejected by the grand jury, that circumstance will not vitiate the residue: Sampson v. Com., 5 W. & S. 385; 1 Chitty’s Criminal Law, 250; Redman v. State, 1 Blackford (Ind.), 429; 2 Henry Blackstone, 131. One offense may be committed to the injury of two or more persons, and where several chattels, the property of different owners, are stolen, or feloniously received, at the same time and place, the whole may be considered as one taking and embraced in one count of the indictment: Fulmer v. Com., 97 Pa. 503; State v. Hennessey, 23 Ohio St. 339. The second count of this indictment answered all the purposes of certainty required by law, and the third, fourth and fifth specifications of error are without merit. The want of a similiter to join the issue, in the plea of not guilty, was amended in the court below, and the motion in arrest of judgment was properly overruled: Wilson v. Com., 10 S. & R. 373; Dougherty v. Com. 69 Pa. 286, 293.

The sixth and seventh specifications are founded upon those already disposed of and must fall.

The judgment is affirmed. And it is ordered that Frank Ault, the appellant, be remanded to the custody of the keeper of the jail of Clarion county, there to be confined according to the sentence of the court below, for the residue of the term to which he was sentenced, which had not expired on the 4th day of March, 1899, when this appeal was taken and a supersedeas allowed; and that the record be remitted to the court below that the sentence and this order be carried into effect.