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Q. S. of

Commonwealth v. French

York Co. jurisdiction of this court, with force and arms, &c., feloniously, wilfully and maliciously did enter the premises of one Carl E. Becker in said county then and

Criminal law--Indictment--Felonious there situated, with an intent the goods entry-Larceny and receiving stolen said premises then and there being fel

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charge felonious entry which gives no de

scription or particulars of the premises en

tered other than the name of the owner is

defective and should be quashed.

Counts of an indictment charging larceny and receiving stolen goods in which the stol

dressed" do not furnish the defendant with

be quashed.

and chattels, moneys and property in the

oniously to take, steal and carry away, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsyl

vania.

(2) And the Grand Inquest aforesaid, en goods are described as "a lot of fresh beef upon their respective oaths and affirmasufficient information of the charge he is to tions aforesaid, do further present, that meet to enable him to prepare for his de- the said Thomas French afterwards to fense, or to protect him from a second pros-wit: On the same day and year aforeecution in the event of his acquittal or conviction on the first indictment, and should said, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &c., a lot of fresh beef dressed, of the value of one hundred dollars, of the goods and chattels, moneys and property of Carl E. Becker, then and there being found, then and there feloniously did steal, take and carry away, contrary to the form of the Act of the General

Motion to quash the indictment in Commonwealth vs. Thomas French, No. 62 April Sessions, 1924, in the Court of Quarter Sessions of York County, Pa. Motion sustained.

William Luria, for motion.

H'. W. Van Baman, District Attorney,

contra.

Ross, J., June 23, 1924.-A motion to quash the indictment found in the above named case was duly filed by defendant's counsel, for the following reasons:

"1. The said indictment is indefinite as to the kind, quantity and description of the property stolen.

Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.

(3) And the Grand Inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, That the said Thomas French, afterwards, to wit: On the same day and year aforesaid, at the county aforesaid, and within the jurisdiction of this court, with force and "2. The said indictment is defective arms, &c., the goods and chattels, monin that the description is indefinite and eys and properties aforesaid, by some illvague, in that it does not state the char-disposed person (to the jurors aforesaid acter of the meat alleged to have been yet unknown) then lately before feloni

stolen.

"3. The indictment and the information vary as to the material alleged to have been stolen."

ously stolen, taken and carried away, feloniously, unjustly, and for the sake of wicked gain, did receive and have, the said Thomas French then and there well The three counts of the indictment are knowing the goods and chattels, moneys worded as follows: (1) The Grand In- and properties last mentioned, to have quest of the Commonwealth of Penn-been feloniously stolen, taken and carsylvania, inquiring for the County of ried away, contrary to the form of the York, upon their respective oaths and Act of the General Assembly in such affirmations, do present, that Thomas case made and provided, and against the French, late of the said county, peace and dignity of the Commonwealth yeoman, on the twenty-sixth day of of Pennsylvania.

March, in the year of our Lord, one It will be noticed that there is nothing thousand nine hundred and twenty-four, in the first count which describes the at the county aforesaid, and within the force alleged against the defendant, .or:

A lottery is a scheme for the distribution

will has no part, and which human reason,

foresight, sagacity, or design cannot enable him to know or determine, until the same has

the nature or kind of "premises" alleged them to be used, and in violation of law. to have been entered by the defendant. Rule for judgment entered for defendant. In fact, there is nothing in the descrip- of prizes by lot or chance. It is a scheme by tive part of the count that puts the ac- which a result is reached by some action or cused upon his guard to prepare a de-means taken, in which result man's choice or fence or intelligently answer the charge. The second count describes the goods alleged to have been stolen by defendant as "a lot of fresh beef dressed," and the third count charges him with having in his possession, having received from some person, the stolen property of the prosecutor.

Nothing in the indictment gives to the defendant sufficient information of the technical charges made against him which he is to meet and defend against at a trial before a jury.

The requirements of an indictment charging a felony are very clearly described in the case of Commonwealth v. Ramsey, I Brewster, 422:

"Does the indictment furnish the defendant with sufficient information of the charge he is to meet, and with the particulars thereof, so as to enable him properly to prepare for his defence?"

2. "Is the record sufficiently precise to protect the defendant from a second prosecution in the event of his acquittal

or conviction on the first indictment?"

These tests are invariably applied by the courts of Pennsylvania in scrutiniz ing indictments.

The indictment now being considered does not measure up to that test.

And now, June 23rd, 1924, the rule is

made absolute and the indictment is quashed.

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been accomplished. Any contract intended to carry such a plan into execution is illegal and will not be enforced.

Rule for judgment for want of a suffi cient affidavit of defense.

Edw. F. Spitz, New York City, Sidney
J. Watts, for plaintiff.

J. Garfield Houston, for defendant.
Before Evans and Drew, JJ.

Drew, J., May 10, 1924-This is a rule for judgment for want of a sufficient affidavit of defense.

The statement of claim alleges a cause of action based on a sale by plaintiff to defendant of 25 phonographs for $50.75 each, a total of $1268.75. The phonographs were received by defendant and not paid for, therefore this suit.

fendant purchased 25 phonographs and alleges that what it did purchase from plaintiff was "25 phonograph deals or propositions." and then goes on to explain that each deal or proposition consisted of one phonograph, 2000 steel keys, I steel padlock, 250 advertising circulars advertising circulars and display cards and 5 large display cards, and that the set forth a plan for disposing of each phonograph by a lottery scheme, the steel keys being used as the tickets, and that it was the intention of the plaintiff and the defendant that the deals were to be used by customers of the defendant in carrying out the plan of the lottery scheme set forth in the advertising matter..

The affidavit of defense denies that de

The affidavit of defense also alleges that defendant acted innocently in this matter, that it did not know the phonograph deals or propositions constituted a lottery, in violation of the laws of Pennsylvania, until its attention was called to a notice published by the police department of the City of Pittsburgh stating that schemes similar to plaintiff's phono

graph deal were unlawful lotteries, that ceded purchase price of the 25 phonodefendant then consulted counsel and graphs or phonograph deals, amounting was advised that the phonograph deal to $1,268.75. was unlawful, and thereupon defendant gathered in the 25 phonograph deals solded by defendant to its customer and placed them in storage.

It must be admitted, because the printmatter proves it, that the transactions were for phonograph deals, intended by plaintiff to stimulate and promote busiThe affidavit of defense then says that ness. It was plaintiff's idea, and he put all transactions between plaintiff and de- it into action, to join together a phonofendant were illegal in violation of the graph as a prize, 2000 keys only one of lottery laws of Pennsylvania, of the which would open the lock furnished by State of Missouri, where plaintiff is en-plaintiff to be put upon the phonograph, gaged in business selling phonograph and ample printed matter for display and deals, and of the United States, because advertising purposes to explain the of the use of the mails by plaintiff in scheme to customers, informing them in transacting his business. The defendant, particular that a key would be given free in the affidavit of defense, then denies with each purchase amounting to $2.00 owing plaintiff the amount claimed or and that when all the keys were out the customer holding the one which would open the lock would be the winner of the $125.00 phonograph.

any amount.

them.

It is evident that defendant introduced many facts into the affidavit of defense for the purpose of laying a foundation Since it must be conceded that defor the introduction of testimony at the fendant was not buying phonographs, trial to explain and support the defend-only phonograph deals, which certainly ant's denials of the facts set forth in meant the whole outfit, it follows that plaintiff's statement. Defendant could plaintiff and defendant made their connot well have done otherwise and at the tracts for the deals to be used as desame time make a legal defense to plain-scribed in the printed matter, and in no tiff's claim. Defendant did order and other way. This is not a case of the purreceive the phonograph deals at an chase of merchandise which could be agreed price, and therefore had to offer used for gambling purposes and also for a legal reason for refusal to pay for other purposes, perfectly legal in the eyes of the law, such as playing cards, At the argument and in his brief coun-billiard tables and the like. This case is sel for plaintiff fairly met the denials and one in which the parties knew the use to allegations contained in the affidavit of which the deals were to be put, and it defense by "accepting defendant's state- was on plaintiff's offer that they could ments in toto, as to the content of the be so used, and would thus promote busitransaction, of a phonograph deal or pro-ness, that defendant acted. As it apposition, consisting of one No. 5 phono- pears to us it makes no difference that graph, I steel padlock, 2000 keys and di- the deals were not intended for direct vers printed matter," (brief of plaintiff's use by defendant. The object was to counsel page 3), and denying that same have defendant, as a jobber, sell them at constituted a lottery or any illegal trans- a profit to its customers, to be used by action. them in their retail trade. If the device Plaintiff has also waived its claim for or scheme was illegal it was so from the $5.91, advanced freight payment on de-beginning.

fendant's account, because of the denial The question is, did the phonograph of defendant that such payment was nec-deal constitute a lottery? A lottery is a essarily paid for its account, and express-scheme for the distribution of prizes by ed a willingness to have the matter omit- lot or chance. It is a scheme by which ted from consideration on this applica- a result is reached by some action or tion, and if necessary that it be stricken from the statement of claim. This suit, therefore, is one to recover only the con

means taken, in which result man's choice or will has no part, and which human reason, foresight, sagacity, or de

ments, which shall be made in pursuance of any such lottery, is hereby declared to be invalid and void.”

sign cannot enable him to know or de- conveyance or transfer of any goods or termine, until the same has been accom- chattels, lands, tenements or hereditaplished. A scheme for increasing the circulation of a newspaper, whereby all subscribers receive numbered tickets corresponding to numbered coupons, which In conclusion, therefore, we are of are drawn from a box by a blindfolded opinion that the phonograph deals were person, prizes to be given to the holders illegal, the contracts for their sale null of certain tickets, is a lottery under U. S. and void, because the deals constitute a Revised Statutes Sec. 3894, prohibiting lottery, in violation of Section 52 of the carrying through the mails of any news-Act of 1860 (supra). In making and sellpaper containing any advertisement of ing and advertising the deals the plaintiff any lottery, etc. (58 Fed. Rep., 942). A was the principal offender. He knew plan where every purchaser of dry goods they were illegal, and for the considerareceived a key and was told that one key tion he now sues to recover he placed would be given out which would unlock them on the market, knowing they would a certain box containing Twenty-five be used as he intended them to be used, Dollars, which would go to the person and in violation of law. Because the who received the key that opened the contracts sued on relate to a gambling box, is a lottery. (Davenport v. City of enterprise to which both plaintiff and deOttawa, 54 Kan., 711). On the other fendant were parties, they cannot be enhand, where the scheme affords room for¦ forced. the exercise of skill and judgment it is not a lottery.

And now, May 10, 1924, after arguments of counsel and full consideration, Applying these few definitions and il- the rule heretofore granted to show cause lustrations to the instant case, can there why judgment should not be entered for be any question as to what our answer plaintiff for want of a sufficient affidamust be? There is no room for the ex-vit of defense is discharged, and judgercise of skill and judgment to win one ment is now entered on the whole record of the phonographs. It certainly is the in favor of the defendant. distribution of prizes by chance, by a scheme in which man's choice or will has no place. It is a lottery beyond a doubt. Main v. Mackey, 39 Pa. Co. Ct., 589.

The phonograph deals were intended. for gambling purposes, and in marketing them as such, making and advertising the plan for their use, the plaintiff actively and purposely participated in such use. He knew they were bought for, and would be used for, an illegal purpose, and he aided materially in carrying out that purpose. Under the circumstances the sale of each deal was per se a violation of law because the unlawful purpose entered into and formed a part of the contract of sale.

O. C. of

Huber's Estate

Lehigh Co.

Auditors-Fee-Acts of June 4, 1879,

and June 7, 1917.

The Act of June 4, 1879, P. L. 84, has been

repealed by the Act of June 7, 1917, P. L.
for allowance of auditor's fees.
447, and there is no longer a per diem basis

Auditors are entitled to fair and reasonable

compensation, and no more.

Exceptions to auditor's report.
H. W. Helfrich, for exceptions.

Section 52, of the Act of March 31, Reno, P. J., Feb. 4, 1924.-The bal1860, P. L. 396, declares as follows: ance for distribution aggregates $5477.23. "All lotteries, whether public or private, The auditor appointed to make distribufor moneys, goods, wares or merchan- tion held one meeting, took six pages of dise, chattels, lands, tenements, heredita- typewritten testimony and filed a report ments, or other matters or things whatso- of seven typewritten pages. ever, are hereby declared to be common nuisances; and every grant, bargain, sale,

The one

question of law requiring his determination was comparatively simple, necessi

tating inspection of few authorities and the construction of only one act. To his fee of $400 exceptions have been filed.

Manifestly, the fee is excessive. The Act of June 4, 1879, § 1, P. L. 84, has been repealed by the Act of June 7, 1917, $63, P. L. 447, and there is no longer a per diem basis for allowance of auditors' fees. This repeal does not deprive us of a standard whereby the value of auditors' services can be measured. We now resort to the law as it was prior to 1879, when it was declared that auditors are entitled to fair and reasonable compensation for the labors required of them, and no more: Porter's Appeals, 30 Pa. 496; Parker's Appeal, 61 Pa. 478; and, naturally, the ability of the estate to pay furnishes no criterion for fixing the compensation: Parker's Appeal, 61 Pa. 478. Careful consideration of the whole case convinces us that a fee of $100 would be a liberal allowance, and, accordingly, that sum will be allowed: Cf. Bracken's Estate, 138 Pa. 104.

the limitation is statutory, but also to cases
between the parties.
in which the limitation is fixed by contract

Statutory demurrer to the plaintiff's statement in Harry Weinstock v. Pennsylvania Railroad Company, No. 87, August Term, 1919, in the Court of Common Pleas of York Co., Pa. Demurrer

overruled.

Cochran, Williams & Kain, for de

murrer.

V. K. Keesey, contra.

Wanner, P. J., October 6th, 1924.—— The contention of the defendant is that

the plaintiff's action is barred by a clause in the contract in suit, which fixes two years and a day after the cause of action has accrued. as the time within which

suit may be brought upon a breach of the contract.

The plaintiff concedes that this suit was not brought within the time specified in the contract, but alleges that he Now, Feb. 4, 1924, exception sustain-was in the military service of the United ed; a fee of $100 is allowed to the audi-States from July 24th, 1918 to January tor; counsel for accountant may present 27th, 1919, which period of service must a decree of distribution in accordance be excluded from the calculation of the herewith for confirmation.

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time elapsing between the accruing of the cause of action and the bringing of this suit, under the following provision of the Soldiers' and Sailors' Civil Relief Act of March 8, 1918, U. S. Compiled Statutes, page 417, Sections 3078: a to 3078:ss: "The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any actions by or against any person in military service * * *Whether such cause of action shall have accrued prior to or during the period of such service."

Construction of statutes-U. S. Soldiers' and Sailors' Relief Act of March 8, 1918-Limitation by contract of time in which to bring action is effected by This Act has been held to be constituSoldiers' and Sailors' Relief Act. tional and applicable to cases like this in the state courts: Bell v. Baker, 260 S. W. The preamble of a statute should be con-158; Erickson v. Macey, 131 N. E. 744,

sidered in ascertaining the legislative intent

in passing it, and when that is determined the act should be liberally construed and applied so as to render it effective.

The Act of Congress of March 8, 1918, known as the Soldiers' and Sailors' Civil Relief Act, which provides that the period of military service shall not be included in com

puting the period limited by law for the bringing of actions by or against persons in

the military service, is constitutional, and is applicable to cases in state courts.

This act applies not only to cases in which

vide cases cited in annotations to this case in 16 A. L. R 1322-1327; Hoffman v. Charlestown Savings Bank, 181 N. E. 15.

The plaintiff's cause of action having accrued May 17th, 1917, and the suit having been brought June 28th, 1919, the exclusion of the plaintiff's period of military service from the calculation of

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