Fulmer v. Commonwealth

Mr. Justice Trunkey delivered the opinion of the court, May 2d 1881. The defendant moved the court “ to quash the first count of said indictment, because he is charged therein with the commission of three separate felonies which motion was refused. Whether its refusal was error must be determined from the count itself, without reference to the evidence subsequently given. It may be noted that there is neither exception nor assignment of error to the receiving of testimony offered to establish the said count, nor to the instructions of the court in submitting the evidence relating thereto, and, therefore, there can be no review of the rulings or instructions respecting such evidence. The count charges the defendant with the stealing of goods, the property of Elizabeth Evans; of other goods, the property of Mary N. West; and of other goods, the property of Sarah flannum, at a certain time and place. It closely follows the form of an indictment at common law, for stealing the property of different persons: 2 Chit. Cr. L. *960; Whart. Pr. of Indict. 416. It is well settled that distinct offences cannot be joined in the same count: Hutchinson v. Commonwealth, 1 Norris 478; Commonwealth v. Bartilson, 4 Id. 482; Kilrow v. Commonwealth, 8 Id. 489. Duplicity in a declaration consists in joining in one count, different grounds of action, of different natures, or of the same nature, to enforce a single demand. Similar to this is duplicity in an indictment, it is the joinder of two or more distinct offences in one count. The criminal law never permits this. But one offence may be committed at the same time and place to the injury of two or more persons, and the. offender may be indicted therefor. A man may be indicted for the battery of two or more persons in the same count; or for a libel upon two or more persons, when the publication is one single act, without rendering the count bad for duplicity. In felonies also, the indictment may charge the defendant in the same count with felonious acts with respect to several persons, if it was all one transaction: 1 Bish. on Crim. Pro., (1st ed.) sects. 189, 192. In Reg. v. Giddins and Others, 1 Car. & Mar. 634, the indictment, consisting of only one count, charged the prisoners with assaixlting G. P. and H. P., and stealing from G. P. two shillings, and from H. P. one shilling and a hat. The defendants contended the felonies were distinct, and moved that the prosecution be put to election which he would go upon; but it was ruled that the assaulting and robbing G. P. and H. P. at the same time constituted one transaction; the evidence was received and the defendants convicted. If a person shoot at two persons, intending to kill one, or regardless which he might kill, he may be [507] convicted on an indictment charging a joint assault on both: Commonwealth v. McLaughlin, 12 Cush. 615. If the property of several persons be stolen at one time, the whole may be considered as one taking, and will amount to grand larceny: 2 Chit. Cr. L. *924. A count charging two distinct offences will be quashed on the defendant’s motion ; but a count may join the larceny of several distinct articles belonging to different owners, when the time and place of taking of each are the same: 1 Whart. Crim. L., sects. 382, 391. In a recent well considered case it was held, “ Where several articles of property are stolen at the same time, the transaction being the same, the whole, although they belong to different owners, may be embraced in one count of the indictment, and the taking thereof charged as one offence:” State v. Hennessy, 23 Ohio St. R. 339; see State v. Nelson, 29 Me. 329. Wo see no reason for departure from the current of authority. As the case comes, the evidence can no more be considered now than when the motion to quash was made. That motion had to be disposed of before the evidence could be heard, and it was rightly denied. The second assignment of error is intended to gainsay the jurisdiction of the Court of Quarter Sessions to try a person charged with the crime of receiving stolen goods, knowing them to have been stolen. Before and since the Crimes’ Act of 1860, it has been common in this state in indictments for larceny to add a count charging the crime of knowingly receiving stolen goods, and to try the offender so charged in the Quarter Sessions. The offences of stealing and knowingly receiving stolen goods belong to the same class of crimes, and may well be united in the indictment, and often must be if justice is to bo administered; for the proof may not sustain the charge of larceny, but would that of knowingly receiving stolen goods, and, therefore, it is the common practice to charge both offences in the indictment: 2 Archb. Cr. Prac. & Pl. (8th ed.) 1164 n. It is contended that the eighth paragraph of the thirty-first section of the Act of 1860, Pamph. L. 438, gives exclusive jurisdiction to the Court of Oyer and Terminer to try a person charged with receiving stolen goods. The paragraph is as follows : “ All persons charged with the second or any subsequent offence of receiving, harboring or concealing any robber, burglar, felon or thief, or with the crime of receiving or buying any goods or chattels, which shall have been feloniously taken or stolen, knowing the same to be so taken or stolen.” This is part of the section enumerating the crimes of which the Court of Oyer and Terminer shall have exclusive jurisdiction; and the whole paragraph might well be construed as relating to second or subsequent offences. However, there is no occasion now for its construction. The entire section is a re-enactment of sections 14 and 15 of the [508] Act of 1836, Pamph. L. 784. Prior to said re-enactment, it was decided that exclusive jurisdiction was not vested in the Court of Oyer and Terminer to try a person charged with receiving stolen goods, knowing them to have been stolen, by section 15 of the Act of 1836, and that the Quarter Sessions had jurisdiction to try said crime: Holmes v. Commonwealth, 1 Casey 221. It is a settled rule of interpretion that “ words and phrases, the meaning of which in a statute has been ascertained, when used in a subsequent statute, are to be understood in the same sense.” How much stronger the reason for holding that where the meaning of a statute has been judicially determined, its subsequent enactment in a revision of the statutes, is in the sense of the adjudication. To rule otherwise could he nothing less than setting aside its intendment by judicial repeal. The fourth and fifth assignments would he well taken had not the defendant made the questions therein stated pertinent in cross-examination of the witness. On behalf of the defendant his father testified in chief, that he gave the defendant money every time he asked for it, and that he gave him money in July. If this was for any purpose it was to 'show absence of motive because the son was not'in want of money by reason of his father’s supplies. It was' competent to ask the same witness if the defendant was not in need of money and owed pressing debts. There had been no offer by the Commonwealth to prove the defendant’s pecuniary condition as evidence of motive for commission of the crime. The defendant attempted to disprove motive by showing that money was furnished for his wants, and he cannot complain of pertinent cross-examination. The only remaining assignment which was pressed, charges error because of alleged remarks by counsel in summing up to the jury. Whether the remarks were proper or improper cannot here be determined; it is plain that they are altogether dehors the record. Judgment affirmed. June 6th 1881, Per Curiam. — It is ordered that the judgment of this court be amended by adding thereto the following: And it is further ordered that Chester B. Fulmer, the plaintiff in error, be remanded to the end that the sentence of the court below be executed, and that he be confined according to said sentence, for the residue of the term which had not expired on the 27th day of February 1880, the date.of suspension of sentence; and that the record be remitted that the sentence and this order be carried into effect.