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15 Pa. Super. 33

Commonwealth v. Beldham

Superior Court of Pennsylvania

Decided July 26, 1900

Superior Court of Pennsylvania · decided 1900-07-26

<p>Appeal, No. 121, April T., 1900, by-defendant, in suit of Commonwealth against George Beldham, from sentence of Q. S. Armstrong Co., Sept. Sess., 1899, No. 41, on verdict of guilty.</p> <p>Opinion by Orlady, J.</p> <p>Indictment for keeping a tippling and disorderly house and selling liquor without a license. Before Rayburn, P. J.</p> <p>It appears from the record that the indictment was sent to the grand jury by the district attorney upon a constable’s return. Defendant moved to quash the indictment for the following reasons:</p> <p>[1. There is no information to support the indictment.] [1]</p> <p>[2. The return of the constable of Apollo borough, filed at the above number, is not sufficient to support the indictment.] [2]</p> <p>[3. The indictment does not charge the offense as being committed in Apollo borough, and within the jurisdiction or bailiwick of the constable of Apollo borough.] [3]</p> <p>[4. There was no arrest, hearing or binding over prior to the finding of the indictment by the grand jury; neither was the bill sent up by the direction of the court, or on a presentment of the grand jury.] [4] -....... - - -</p> <p>[5. The first count, charging a nuisance, is defective, because it does not fix the location of the alleged nuisance.</p> <p>[6. That by inspection of the indictment, it appears that one Frank N. Cuson was called and sworn by the grand jury without his name being first placed upon the indictment by the district attorney.] [5]</p> <p>[7. The second count is bad because of duplicity and uncertainty, and because it attempts to charge an offense that is not indictable, to wit: The sale of an intoxicating liquor called ambrosia.] [6]</p> <p>The court made the following order on the motion to quash the indictment:</p> <p>The Court: It being the practice of the court, upon receiving returns of the constables, when return of a violation of the law is made, an individual return is always referred by the court to the district attorney. And that being done in this case, we will overrule the motion to quash, and now make an order sanctioning a sending up of a bill to the grand jury by the district attorney. And upon request of defendant, exception allowed and sealed.</p> <p>December 20, 1899, exception granted defendant and bill sealed.</p> <p>Verdict of guilty and sentence thereon to paya fine of $500, pay the costs of prosecution and undergo imprisonment for three months. Defendant appealed.</p> <p>Errors assigned were (1-6) in refusing to quash the indictment for the reasons above recited.</p>

Relies on Commonwealth v. Green · Appeal of Hartranft · Brown v. Commonwealth

Affirmed · Decided 1900-07-26

¶1Opinion by

Orlady, J.,

¶2The prosecution in this case was founded upon the return of the constable of Apollo. borough, who, under oath, made answer to questions which are regularly propounded to all such officers. He clearly specified the offense of the defendant, and gave the names of the witnesses who could prove the fact. Pursuant to a practice which prevails in many counties of the commonwealth, the constable’s return was delivered to the district attorney and a bench warrant was issued for the arrest of the defendant. An indictment was submitted to the grand jury before leave of court in writing had been obtained; this action of the district attorney was in accord with the local practice in such cases. A more orderly practice would be to have the court indorse on the indictment its approval of the submission to the grand jury. In this case the same judge, who had full knowledge of the fact that the court had under its unwritten rule authorized the action of the. district. attorney, subsequently made an order in writing sanctioning the submission of the indictment to the grand jury on the return of the constable, and in this there was no error.

¶3The duty of the constable, the district attorney and the court in such cases is reviewed in McCullough v. Commonwealth, 67 Pa. 30, where it is said, “ But when the bill has been regularly sent up by the district attorney, under the sanction of the court, upon the return of a proper officer as in this case, the bill cannot be quashed except for matters appearing on the face of the record.” It was not sent up surreptitiously, but followed a practice approved by the court: Brown v. Commonwealth, 76 Pa. 319; Hartranft’s Appeal, 85 Pa. 433.

¶4It is a power to be exercised, in the ordinary case, under the supervision of the court, and in all cases its exercise is subject *37to revision and approval by the court: Rowand v. Commonwealth, 82 Pa. 405. If the process is misapplied the court will vindicate itself in restraining its exercise, and the action of the officer and the court will be reviewed only when the abuse of discretion is found to be both manifest and flagrant: Commonwealth v. Green, 126 Pa. 531; Commonwealth v. Breden, 165 Pa. 224; Commonwealth v. Montross, 8 Pa. Superior Ct. 237.

¶5The sixth assignment of error is without merit, as the inspection of the indictment, as indorsed by the district attorney, clearly shows that the name believed to be Frank N. Cuson is a clerical error for Frank Mason.

¶6The indictment contains more than is required by the statute, but by the defendant’s second point which was affirmed, the issue was clearly confined to whether the article which he sold without a license was a spirituous, vinous, malt or brewed liquor, or an admixture thereof. In the body of its charge the court said: “Now the only question for you to determine in this case is whether that ‘ Ambrosia ’ that he sold there was a spirituous, vinous, malt or brewed liquor or admixture thereof,” and “ now gentlemen, if you find from the evidence in this case that this liquid that was sold by this defendant was vinous, spirituous, malt or brewed liquor or admixture thereof, then it would be your duty to find him guilty of the second count in this indictment; but if you find that this liquor that was sold by him was not such a liquor as is described in this act of assembly as vinous, spirituous, malt or brewed liquor or admixture thereof, it would be your duty to acquit him.”

¶7The sales were clearly proved and there was sufficient evidence to show that the article sold was an admixture of spirituous, vinous, malt or brewed liquors, in a disguised form. The experiment to evade the law in this manner was a failure, and after a fair trial the defendant was rightly convicted. It was purely a question for the jury and there was abundant evidence to warrant the verdict: Hatfield v. Commonwealth, 120 Pa. 395; Commonwealth v. Reyburg, 120 Pa. 299.

¶8The assignments of error are overruled and the judgment is affirmed.

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