Commonwealth v. Sober , 22 Pa. Super. 22 ( 1903 )

Opinion by

Beavee, J.,

When this ease was here before, 15 Pa. Superior Ct. 520, we decided that the indictment had been erroneously quashed and sent the case back, with a procedendo. It is to be presumed that the defendant urged at that time all the reasons for quashing the indictment which existed. There is nothing new in the case in this respect and it was his duty at least to present his case fully. Whether the exact reasons now urged for quashing the indictment were urged at that time we cannot say, but they at least should have been presented and, if so, they were passed upon and need not be further considered.

The answer of the court below however, to the reasons now urged for quashing the indictment is satisfactory to us and, if there were nothing else in the case, so far as the sufficiency of the indictment is concerned, it would be sustained upon the opinion of the trial judge.

We are asked by the appellee to dismiss the assignments of error and quash the appellant’s appeal, upon the ground that no request was made to the court below to have the charge and other proceedings reduced to writing and filed, and there is no record anywhere that we can find that such an order was made, nor is there any certificate from the court that the charge and testimony as printed are correct and part of the record.

There is further exception to the appellant’s paper-book in that a bill in equity offered in evidence by the commonwealth, filed by Arner & Rea, v. Ida P. Sober, and the answer thereto to which the defendant made affidavit and in which it was alleged that the said Ida P. Sober was the owner of the one-third interest in the Allright grocery, is not printed. This was an important and, in a sense, controlling item of evidence and should have been printed. The record is incomplete without it and our consideration of the case likewise necessarily unsatisfactory.

For these reasons, the assignments of error are all dismissed and the appeal quashed at the costs of the appellant.