Commonwealth v. Hart , 12 Pa. Super. 605 ( 1900 )

Opinion by

Beaver, J.,

This is an appeal frotn the judgment and decree of the court of quarter sessions of Philadelphia county in a proceeding under the Act of April 13, 1867, P. L. 78, which provides "‘for the relief of wives and children deserted by their husbands and fathers within this commonwealth,” commenced before a magistrate whose transcript forms the basis of the proceeding and as to the sufficiency of which the appellant especially excepts. No appeal from such a proceeding is allowed by law, and that, taken in this case must be treated, therefore, as a certiorari, under which the jurisdiction of the court below and the regularity of the proceedings only can be considered (Barnes v. Com., 11 W. N. C. 375; Com. v. Tragle, 4 Pa. Superior Ct. 159) and these in effect are the questions raised by the appellant.

The jurisdiction of the court of quarter sessions is challenged, “ because no information or warrant was filed therein.” This, however, was expressly held in Barnes v. Com., supra, to be immaterial; but if is farther alleged that the transcript of the committing magistrate, as filed, does not show that any information had ever been filed with the latter, in which respect it is claimed to differ from Barnes v. Com. It is true that the magistrate does not use the term “information ” in the transcript returned to the court of quarter sessions which shows, “Warrant issued on oath of Kate Hart.” The term “information ” in the act of assembly is not used in its technical sense, which is “ an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office instead of a grand jury on their oath,” (1 Bish. Cr. Prac. sec. 141), but is evidently employed as the equivalent of complaint or oath, the three terms being used indiscriminately by magistrates to indicate the foundation upon which warrants are usually issued. Whichever term is used, in this connection there is implied in the use thereof the two elements as to form, first, that it is in writing; second, that it is under oath. That the .information in this case was under oath is affirmatively shown in the transcript of the magistrate and, inasmuch as “ It is the duty of the magistrate to take all charges, of whatsoever nature, kind and complexion they may be, in writing ” (1 Chit. Crirn. Law, 28), it is to be presumed that the magistrate did his duty, even if that is not involved in the use of the term “ oath ” in the return itself.

It is further objected that the transcript does not show such a charge as is within the act of 1867, and that it further fails to show a binding over of the defendant upon a charge of desertion or, in fact, upon any charge. The defendant waived a hearing and entered into a recognizance with surety for his appearance at the next court of quarter sessions to abide the orders of the said court. He appeared in accordance with his recognizance and was heard, as is shown by the decree of the court, by his proofs and allegations, without objection or exception, so far as the record shows. Having submitted himself to the jurisdiction of the court and having been heard upon the merits of his case, it would seem to be late to assert any technical objection either as to the transcript or the recognizance.

The objection that neither the magistrate nor the court of quarter sessions had jurisdiction of the defendant’s desertion, because it took place outside of the commonwealth, is also without foundation. This was expressly ruled in Barnes y. Com., supra; but, even if this were not so, it is a question of evidence, which is not before us, as to which the record itself is entirely silent; and besides desertion is a continuing offense, and although the original act may have occurred in another state, when the defendant comes within the jurisdiction of this commonwealth and continues the desertion of his family and the failure to support them, he undoubtedly brings himself within the provisions of the act of 1867, supra.

It is further objected that the record does not show upon what charge or for what cause the order to pay was rested. The transcript, however, is not silent upon this subject and shows that he was charged with “ neglect to support the deponent, Kate Hart, and one child,” which, under the provisions of the act of 1867, supra, gave the court jurisdiction and warranted the decree.

The objection that “ the order does not disclose an essential fact, namely, the finding by the court that Hart had sufficient ability to pay the amount of the weekly order ” is not sustained for the reason that it is to be presumed that the court found that fact as a necessary prerequisite to the making of the order. The testimony taken before the court is not before us. It is to be presumed, however, that the defendant presented his whole case, as was his right, in the court below, and that he was heard as to the question of his ability to contribute to the support of lfis wife and children as well as to every other pertinent fact wMch he desired to bring to the consideration of the court.

The decree of the court below closes with, “ Order made with leave to apply for revocation as to the payment for the wife’s support.” The record shows that the defendant presented his petition and affidavit, praying for the revocation of the order, upon which a rule was granted to show cause why the order of maintenance should not be revoked. An answer to this petition was filed and the rule discharged. It is objected “ that the petition for revocation was illegally dismissed, without any hearing.” The modification of the original order was within the discretion of the court. It was not essentially necessary to a disposition of the case that the parties should be orally heard. The petition and answer may have given such information to the court as enabled it to dispose of the case without a hearing, or there may have been a hearing, although the record does not affirmatively show it. In either event the court is presumed to have done its duty and, if we may be allowed an expression of opinion, upon a view of the petition and answer, although their contents are not properly before us, it would seem as if the court would have been entirely justified, in the exercise of its discretion, in discharging the rule without a hearing.

The entire record fails to disclose any substantial ground upon which the defendant is entitled to relief. The decrees of December 28, 1898, and February 28, 1899, are respectively affirmed, and the appeal dismissed at the cost of the appellant.