Myers & Murray v. Commonwealth

Mr. Justice Gordon delivered the opinion of the court, November 4th 1875. The argument, for the plaintiff in error,rests on the assumption that the assistant and associate judges of the Court of Common Pleas, learned in the law, in the county of Allegheny, had, before the adoption of the New Constitution, no power to hold Courts of Oyer and Terminer for the trial of homicide cases, in the absence of the president judge. This, however, is unfounded, as will be seen upon referring to the Acts of 26th March 1859, Pamph. L. 253, and 11th of April 1862, Pamph. L. 448, creating the offices of assistant and associate judges for this county, and the Act of 4th of May 1865, Pamph. L. 842, conferring certain powers upon them. Under the last act any two of the judges may sit in the [311] Oyer and Terminer Court for the trial of homicide cases. Sects. 8 and 9 of the 5th Art. of the New Constitution in question, with the Act of 27th of February 1875, confer full power upon the several judges of the Courts of Common Pleas, Nos. 1 and 2, in Allegheny county, to hold Courts of Oyer and Terminer for the trial of cases. The cases of The Commonwealth v. Zephon, 8 W. & S. 382 ; Kilpatrick v. Commonwealth, 7 Casey 198 ; and In re Application of Judges of the Eighth and Tenth Districts, 14 P. F. Smith 33, vindicate fully the legislation enabling associate judges learned in the law to hold Courts of Oyer and Terminer for the trial of homicide cases in the absence of the president judge. The amendment of the indictment from “ October” 1874 to “November” 1874, is justified by the 13th sect, of the Act of 31st of March 1860, relating to the criminal procedure, especially when read in connection with the powers of amendment set forth in the 11th and 12th sects. A clause in the 13th sect, reads thus : “ Or in the name or description of any matter or thing whatsoever therein named or described.” The month of October was named in the indictment, and the precise day described by the number eleven. The amendment fell clearly within this power, which is strengthened by the large powers of amendment intended to be conferred by the sections stated. The fourth assignment of error is disposed of by the case of Ortwein v. The Commonwealth, 26 P. F. Smith 414, decided in this district a year ago. The other assignments of error were abandoned in the argument. We discover no error in this record. The judgment and sentence of the Court of Oyer and Terminer in each case, that is to say, in the Commonwealth v. William Murray, and the Same v. Frederick Myers, are affirmed, and it is ordered that the record be remitted in each case to the Oyer and Terminer, which tried the cause, for the execution of the sentence according to law.