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Q. S. of

Commonwealth v. Dice

Criminal law-Indictment-Information—Variance between information and indictment-Fortune telling.

York Co. case would only sustain an indictment for the charge of obtaining money under false pretenses under paragraph 111 of the act of 31st March, 1800, P. L. 410. The information on which the indictment to No. 38 April sessions is based sets out, in substance, that the defendant, Charles W. Dice, did fraudulently obtain $36, being then and there. the property of Paul H. Stremmel, with the intent to cheat and defraud, in the following manner, to wit: "A certain Charles W. Dice, devising and intending to cheat and defraud Paul H. Stremmel of his property and money, unlawfully did falsely and designedly pretend to the said Paul H. Stremmel that there was a black dog running around the as to the manner and form of laying the of-house in a circle; that they couldn't see

An information may be so worded that it will sustain an indictment for either of several distinct offenses, and in such case the

drafting of the bill of indictment is a matter largely within the discretion of the dis

trict attorney.

The courts do not expect committing mag

istrates to know the distinction in cases having similar elements, therefore the district attorney must be vested with discretion

fenses in the indictment; and as long as he

sets out in the bill the charge for which the arrest was made and the hearing had, he should be sustained.

An information need not contain as full

and specific a statement of the offense as is

required of the indictment.

An information which sets forth that the defendant, with intent to defraud another

falsely, represented that the latter was afflicted with a curse, and fraudulently reis sufficient to sustain an indictment under paragraph 111, of the Act of 1860, P. L. 410, relating to fortune telling, although it might be sufficient to sustain an indictment charg

ceived money for the removal of the curse,

ng false pretenses.

Motions to quash the indictments in Nos. 35, 36 and 38, April Sessions, 1924, charging fortune telling, in the Court of Quarter Sessions of York County, Pa. Motions dismissed.

C. W. A. Rochow and William Luria, for motions.

this dog with the naked eye, and that it was a curse; and for $32 he would take off the spell, and also $4 for the visit or work; which said pretense and pretenses he, the said Charles W. Dice, then and there well knew to be false; by color and means of which said false pretense and pretenses the said Charles W. Dice then and there unlawfully and fraudulently did obtain $30, being then and there the property and money of the said Paul H. Stremmel, with intent to cheat and defraud: contrary to the act of general assembly in such case made and provided."

The section of our criminal code relating to false pretenses provides that, "If any person shall, by any false pretense, obtain the signature of any person to any written instrument, or shall obtain from any other person any chattel,

W. W. Van Baman, District Attorney, money or valuable security, with intent.


E. M. Biddle, Jr., P. J., Ninth Judicial District, specially presiding:-These three indictments were all against the same defendant, and the question raised by the motion to quash is the same in each instance. The defendant in each case has been indicted for fortune-telling, each indictment containing two counts; the first based upon paragraph I of the act of 8th April, 1861, P. L. 270, and the second upon paragraph 2 of the same act. The contention of the defendant is that the information in each

to cheat and defraud any person of the same, every such offender shall be guilty of a misdemeanor." The act of assembly relating to fortune-telling, upon which the indictment is based, provides: "That any person * * * who shall, for gain or lucre, pretend to effect any purpose by spells, charms, necromancy or incantation, shall be guilty of a misdemeanor;" the second paragraph of the same act providing, "That whosoever shall pretend, for lucre or gain, to tell fortunes or foretell future events, by other means than those aforesaid, shall be guilty of a misdemeanor."

Ct. 217.

"* *

nect *

It is manifest, from an examination of nished no ground for quashing the latter these two acts, that each one of them or either count of it. * *' Cominvolves the element of fraud, attempted monwealth vs. Carson, 166 Pa. 179"; or perpetrated, for the sake of lucre or Commonwealth vs. Gouger, 21 Pa. Sup. gain. The provision in regard to false pretenses makes the actual obtaining of the money or valuable property an ele*if the pleader deems it necment necessary to sustain a conviction; essary to charge the same act as constithe act relative to fortune-telling makes tuting different offenses, in order to meet the person making the attempt, whether the evidence, and avoid a variance in the successful or not, so far as the language proof, it is proper. Thus, he may con* * larceny and false preis concerned, guilty of the misdemeanor mentioned. It might be, therefore, that tenses:" Sadler on Crim. Proc. p. 269; the information in these cases would Commonwealth vs. March, 1 Pa. C. C. have sustained a count for obtaining Rep. 81. money by false pretenses; but we think that it by no means follows that, because such a charge could have been sustain ed, the indictment charging a violation of the act of 1861 may not be sustained here. In such a case, the drafting of the bill of indictment is a matter largely within the discretion of the district-attorney; and the facts shown do not sustain, in our opinion, the contention of the learned counsel for the defendant that the district-attorney has, without permission of the court, submitted to the grand jury a charge that is not sustained by the information.

"One can hardly expect committing magistrates to know the distinction in such cases, and the district-attorney must be vested with some discretion as to the manner and form of laying offenses in the indictment. As long as he sets out in the bill the charge for which the arrest was made and upon which the hearing was had, he should be sustained:" Commonwealth vs. Shissler, 7 Dist. Rep. 341; Sadler on Crim. Proc. p. 232.

"Nor is there such a variance between the indictment and the information *

"It is not required that an information. be skillfully drawn and justice might be delayed or sometimes entirely defeated, if the same skill were required in regard to the information as to the indictment. There is no doubt that the defendant upon scrutinizing the information before us knew what the unlawful act was with which he was charged, and was sufficiently informed that he might be put on trial for the crimes charged in the indictment:" Commonwealth vs. Miller and Burke, 77 Pa. Sup. Ct. 469.

And now, June 19th, 1924, the motion to quash in each of the three cases is overruled.

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Public Officers — Supervisors nishing own teams Criminal law *Road law-Act of March 31, 1860.

An indictment charging that a supervisor furnished his own team for work on a township road and accepted pay for the same, charges an offence under section 66 of the Act of March 31, 1860, P. L. 400, although it is not averred that there was any corrupt or dishonest intent or unfairness in the price

* as would warrant the quashing of this count upon the ground that it required the defendant to answer a charge for which he was not arrested or held to bail. An indictment need not conform precisely with the phraseology of the information, provided the offense charged is the same in substance. * * The fact that the information did not contain as full and specific a statement Miller & Hartswick and A. H. Woodof the offense as the indictment did, fur-ward, for motion.


charged for the services.

Motion to quash indictment. Overruled.

John C. Arnold, District Attorney, make the scope of the act cover every


Bell, P. J., Nov. 17, 1923.-While certain matters of form are set out in the motion, it is conceded that these raise questions of alleged defects which are amendable, and the real and substantial question involved is that raised by the third reason: "That the acts charged in the bill of particulars this day furnished do not constitute a criminal offence under the laws of Pennsylvania." The real proposition in the case is substantially this: The indictment charges the defendant with being a supervisor of the road district of the Township Beccaria, and with having furnished to said road district his own team for work for the township and having been paid therefor by the said district, and the indictment avers that he was thereby unlawfully interested in certain contracts for the sale or furnishing of supplies to the said district. The Commonwealth contends, and the defendant denies, that this falls within the prohibition of the 66th section of the Act of March 31, 1860, P. L. 400; and the Commonwealth also avers, and the defense denies, that this is within the prohibition of the 239th section of the Act of July 14, 1917, P. L. 840, 867. On the specific proposition there was strong difference of opinion between the views expressed by Judge Woodward, in Coxe's Case, I Dist. R. 702, and in re Hazle Township, 1 Dist. R. 813, and those of Judge Stewart in Funk v. Washington Township, 13 Pa. C. C. Reps. 385, and Washington Township v. Shoop, 2 Dist. R. 639. Jurge Stewart took the view that the omission of the word "municipality" in the first part of the sentence of the 66th section of the Act of 1860 showed an intention to create a different construction from the later clause of the act in which that word was used, but as this doctrine was repudiated by the Superior Court in Com. v. Miller, 31 Pa. Superior Ct. 309, and Com. v. Witman, 217 Pa. 411, this objection is without force.

thing reasonably coming within its meaning which falls within the evil sought to be guarded against, and it is flatly stated that the enactment should not be deprived of the greater part of its efficiency. It is also decided "that a corrupt or dishonest intent or unfairness of the price charged or contracted for the supplies or materials is not an essential element of defence," and it is asserted that the purpose of the act was to forbid all of the officers and persons included in the prohibition from engaging in any business relation on behalf of those they served with themselves or concerns in which thy were directly interested, and this expression is used: "He that is entrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is entrusted. The danger of temptation from the facility and advantage of doing wrong, which a particular situation affords, does, out of the mere necessity, work a disqualification." All of the cases which we have seen concur in the position that the supervisor in such case cannot lawfully be paid by the district, notwithstanding the perfect fairness of the transaction, and this itself is persuasive, because, if these acts are prohibited by public policy, irrespective of any act of assembly, as was declared by Judge Stewart, the offending party is on dangerous ground. The view of the Act of 1860, taken in Com. v. Miller, was positively reasserted by the Supreme Court in Com. v. Witman, 217 Pa. 411, in which, quoting Com. v. De Camp, 177 Pa. 112, it was said: “Section 66 is virtually a transcript of sections 1 and 2 of the Act of April 26, 1855, P. L. 328. As was doubtless intended by the revisers of our criminal code, its scope is broad and comprehensive."

That a supervisor could not recover The construction given to the 66th from the road district or lawfully be section of the Act of 1860 by the Super-paid by it for such services as was here ior Court in Com. v. Miller, 31 Pa. Su- rendered has been several times decided perior Ct. 309, is avowedly designed to by the courts of this district, and we

have not been shown any reason why this view should not prevail. It is contended that team hire does not fall within the term "supplies," but we think the answer thereto, In re Hazle Township, 1 Dist. R. 813, is unanswerable.

We are not impressed by the contention that the wording of the Act of 1917 is broad enough to sustain this indictment if it is not good under the Act of 1860, but applying to the facts here presented, the trend of construction of the appellate courts, we reach the conclusion that this indictment is good under section 66 of that act.

Now, Nov. 17, 1923, the motion to quash is overruled, exception noted and bill sealed to the defendant. Leave is granted to the district attorney to amend the indictment in matters of form so as to conform to any formal errors therein, to which exception is noted and bill sealed to the defendant.

C. P. of

Somerset Co.

American Surety Company v.

Berkey, P. J., June 7, 1924.-This is an action in assumpsit in which plaintiff seeks to recover from the defendant as one of the indemnitors in an agreement between the plaintiff and the defendant entered into September 23, 1916. The basis of this claim is set forth in a statement filed by the plaintiff November 5, 1923. The defendant filed an affidavit of defense December 8, 1923, whereupon the plaintiff moved for judgment for want of a sufficient affidavit of defense. The rule issued, thereupon was dismissed by the court. This was followed by the defendant moving the court for judgment in favor of the defendant on questions of law raised in the affidavit of defense. The record standing in this position, the questions of law in the nature of a demurrer were argued by counsel, bringing the matter before the court for disposition under Sec. 20 of the "Practice Act 1915."

An inspection of the plaintiff's statement and the paper filed February 18, 1924, calling attention to the questions of law raised in the affidavit of defense constrains the court to postpone decision on the questions of law in the nature of demurrer until after the issues of fact are determined by a jury. This action by the court affects but the order of proceeding, not the right of the parties, and as the court views the case

Practice--Action against surety from the pleadings on file it is a proper

Demurrer--Affidavit of defense-Post

exercise of its discretion: Marseilles v. Kenton's Executors, 17 Pa. 238; Componement of case of law raised by de-monwealth v. Porter, 33 Pa., 82.

murrer until after jury trial.

It is true since the above decisions

When a question of law in the nature of were rendered, the Practice Act of 1887 a demurrer is raised by the affidavit of and the "Practice Act of 1915" have defense and the matter is brought before been passed, but a careful reading of

the court for disposition, under Section 20 of the Practice Act of 1915 the court may postpone decision on the questions of law

until after the issues of fact are determined

by a jury. This is a proper exercise of

the discretion of the court as it affects the order of procedure but not the rights of the parties.

Statutory demurrer.

the 20th section of the "Practice Act of 1915" we think in no wise disturbs the rulings in the earlier cases cited.

Now, June 7, 1924, the court postpones decision on the question of law in the nature of demurrer raised by the defendant until after the issues of fact are determined by a trial; and the case is remanded to the trial list to be placed Ogle, Kooser & Kooser, for defen- upon the term calendar when reached

E. E. Kiernan, for plaintiff.


under the rules of this court.

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and the court finds against the defendant,

ment will be entered for plaintiff.

can be made most clear and simple by quoting from the pleadings all that is needed for an entire understanding of this case.

The plaintiffs, in the first and second paragraphs of their statement, aver, and the defendant, in the first paragraph of his affidavit of defence, admits, that the plaintiffs reside in the Borough of Coaldale and the defendant in the Borough of Tamaqua. The balance of the plaintiffs' statement is as follows:

"3. That on or about December 10, 1919, and prior thereto, the plaintiffs were the owners of three invoices for three barrels of whiskey to be shipped from A. Overholt & Company, Pittsburgh, Pa., as in the said invoices more particularly specified and described.

"4. That on or about December 10, 1919, in the said Borough of Coaldale, defendant approached plaintiffs and stated to them that he, defendant, was on very friendly terms with the said A. Overholt & Company, and in a position to expedite the delivery to plaintiffs of the said three barrels of whickey, and that if the plaintiffs would deliver to defendant the said three invoices and pay the Government tax upon the said whis

Where such an affidavit of defence is filed both on the merits and law, leave to file an-key, together with his, defendant's, other affidavit will not be allowed and judg- charge for delivering the same, defendant would insure the prompt delivery by A mere denial of an averment in a state-him of the said three barrels of whiskey to plaintiffs in the said Borough of Coaldale.

ment of claim is insufficient.

Rule for judgment for want of a sufficient affidavit of defence. Judgment

for plaintiff.

"5. Whereupon plaintiffs, believing and relying upon the said statement of defendant as to the prompt delivery to

George M. Roads and P. B. Roads, them of the said whiskey, accepted defor plaintiffs.

R. J. Graeff, for defendant.

Koch, J., June 4, 1923.-The plaintiffs filed their statement of claim, and the defendant filed an affidavit of defence to both the merits and the law. Then the plaintiffs took a rule for judgment for want of a sufficient affidavit of defence, and the defendant subsequently filed another affidavit of defence again raising the same question of law.

It is bad practice to file an affidavit of defence to both the merits and the law of a case, but as the defendant has chosen to meet both the merits and the law, we will dispose of both. I think matters

fendant's proposition and delivered to defendant the said three invoices.

"6. That on or about February 15, 1920, the said Cassie Fritz called at defendant's then home in the said Borough of Coaldale and inquired as to the cause of the delay in the non-delivery to plaintiffs of the said three barrels of whiskey, whereupon defendant stated that the said whiskey was in transit, and that if satisfactory to plaintiffs said defendant would deliver to plaintiffs one barrel of his, defendant's, whiskey in exchange for one barrel of the said three barrels claimed by defendant to be in transit for delivery to plaintiffs as aforesaid, which plaintiffs agreed to accept, and defendant

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