Commonwealth v. New Bethlehem Borough

Rice, P. J., Opinion by (after finding the facts as set out in the statement of facts) : None of the foregoing reasons nor all of them taken together were sufficient to' make it the imperative duty of the court to quash the indictment, as a brief review of the authorities will show. 1. A constable’s return need not be drawn with all the formal nicety of an indictment. The return in the present case taken as a whole and given a reasonable intendment charges a public nuisance, and by implication a neglect of duty on the part of the municipality in permitting the public highway under its control to be and continue totally obstructed against public travel. The precise point was ruled in Com. v. Bredin, 165 Pa. 224, at least so far as the form of the return is concerned. There, as here, the constable adopted the notice as part of the réturn. The court below and the Supreme Court held that this was sufficient. Chief Justice Sterrett, delivering the opinion, said: “ The indictment was bas_ed upon the return made by the borough constable to the court of quarter sessions. It was his duty to make the return, and while it was informal, as many such returns are, it was deemed sufficient by the court, and we are not prepared to say it was insufficient. It was made under oath and in answer to the question, ‘ Any other violations of law ? ’ the constable’s reply was, ‘ Yes; see notice hereto attached. ’ The notice be [163] ing thus, in effect, made part of his return, the latter was sufficient to support the indictment.” Nothing more need be said concerning the second, third and fourth reasons assigned by counsel, or the additional reason assigned by the court for quashing the indictment. 2. Neglect to keep in repair the public roads in any municipal district is a violation of public duty, and the person or municipal corporation charged with the duty is punishable by indictment at common law: Edge v. Commonwealth, 7 Pa. 275; Phillips v. Commonwealth, 44 Pa. 197; Commonwealth v. Reiter, 78 Pa. 161; Oakland v. Martin, 104 Pa. 305; Commonwealth v. Johnson, 134 Pa. 635; Roaring Brook Road, 140 Pa. 632. “ Corporations are generally regarded as indictable for misfeasance, as well as nonfeasance, respecting duties of a public nature plainly enjoined by the legislature for the benefit of the public. The modern view is to assimilate corporations, as to their duties and responsibilities, so far as possible, to individuals. It is admitted that they cannot be indicted for felonies, but it is clear that they may be indicted for acts done to the injury and annoyance of the public, and which amount to a nuisance: ” Dillon’s Municipal Corporations, sec. 932, quoted with approval in Com. v. Bredin, supra. Not only does this principle apply to cases where the nuisance was created by the municipal corporation, but it also applies t,o cases where it has the power and is charged with the duty to abate a nuisance in the public highway and neglects to discharge the duty. Prom time out of mind it has been the practice, and in the last cited case it is shown to be their duty, for constables to return such public offenses and for the court to permit the district attorney to send an indictment before the grand jury without a previous hearing before a committing magistrate. It is unnecessary to discuss the propriety of this course of procedure. It is too well recognized to require more than the citation of the case of McCullough v. Com., 67 Pa. 30, where the subject is elaborately reviewed. 3. The suggestion that the indictment is not based on the return, but sets forth an entirely different offense, is not well founded, as a comparison of the return with the part of the indictment heretofore quoted will sufficiently show. Nor is there merit in the objection that the indictment does not set forth the [164] particulars constituting the offense. Criminal pleading is no longer the technical thing it was, and courts look more to substantial justice than artificial nicety: Commonwealth v. Keenan, 67 Pa. 203. There are many cases at common law and under statutes, where the description is general, and because of the multitude of particulars constituting the offense, the proscutor may be required to give notice of the acts intended to be proved: Election Cases, 65 Pa. 20, 37. Notwithstanding this liberality of pleading the rule undoubtedly is, that an indictment must show that an offense has been committed, and, if at common law, must describe the same “so plainly that the nature of the offense charged may be easily understood by the jury.” This is the test by which the sufficiency of the indictment is to be determined. If it comes up to this standard but does not furnish sufficient information to enable the defendant to prepare his defense the remedy is not by motion to quash but by motion for a bill of particulars : Williams v. Commonwealth, 91 Pa. 493, 502; Commonwealth v. Bachop, 2 Pa. Superior Ct. 294; Commonwealth v. Swallow, 8 Pa. Superior Ct. 539, 614; Commonwealth v. McCoy, 10 Pa. Superior Ct. 598. 4. Where an indictment is based on a constable’s return made in the discharge of his official duty, it is not required that the name of a prosecutor be indorsed. Ordinarily there is no private prosecutor, and if there be none the defendant cannot refuse to plead: The King v. Lukens, 1 Dall. 5. This was so under the act of 1705, 1 Sm. L. 56, and the law has not been changed in this respect, but it has been so amended by the criminal procedure act of 1860, section 27, as to enable the court to determine the question in any case, whether there is such a prosecutor, and who he is, and “if they shall be of opinion that there is such a prosecutor ” to order his name to be indorsed on the indictment. The fact that no prosecutor’s name was indorsed on the bill returned by the grand jury was not ground for quashing the indictment. 5. The proceedings leading up to the finding of the indictment being regular and the indictment being sufficient in form and in substance, it is nevertheless claimed that the court had discretionary power to quash it. The case of Commonwealth v. Green, 126 Pa. 531, is relied on as sustaining this proposition, but we think it falls short of doing so. In that case the [165] indictment was based upon a presentment of a grand jury, having been prepared in pursuance thereof and sent before a subsequent grand jury with the permission of the court. It was proved on the hearing of the motion to quash, that the presentment was made upon the testimony of certain witnesses examined in another case and not on the knowledge or observation of the grand jury, and was therefore no presentment at all. The leave of court to send up the bill was granted under a misapprehension, and upon being informed of the facts concerning the illegal presentment, the court quashed the bill. This was held not to be error. Commonwealth v. McComb, 157 Pa. 611, was a similar case. Nothing of that kind appears or is alleged in the present case. To sustain this, order we must hold, either that there is no mode of bringing up for review the action of the quarter sessions in quashing an indictment in any case, or that the court has absolute discretionary power to quash any indictment based on the sworn return of a constable charging a neglect of public duty in not keeping the highways in passable condition, even though the indictment be sufficient in form and substance, and the bill was sent before the grand jury by leave of court. It was intimated, it is' true, in Commonwealth v. Green that a refusal to quash would not have been reversible error. From this it is argued that the motion in the present case was addressed to the discretion of the court below and that its action is not reviewable. This position cannot be sustained by the authorities. In Commonwealth v. Bradney, 126 Pa. 199, Justice Clark, who rendered the opinion in Commonwealth v. Green, said: “ It is also true that a motion to quash a bill has been treated as a proceeding addressed to the discretion of the court, a discretion regulated by judicial rule; and, according to the more common practice, perhaps the decision is not open to revision in the higher courts, but in Pennsylvania and in some others of the states the practice is otherwise : Commonwealth v. Church, 1 Pa. 105; McCullough v. Commonwealth, 67 Pa. 30; Commonwealth v. Keenan, 67 Pa. 203; Hutchison v. Commonwealth, 82 Pa. 472.” It is undoubtedly true that the court has discretionary and revisory powers over what are called district attorney bills, and where the sanction of the court to sending up such a bill has been obtained by deception, whether wilful or unintentional, it may revise its action even after the return of an indictment. This is what the [166] Green case decides. But this, strictly speaking, was not a district attorney’s bill, and was sent up through no misapprehension. It was based on a sworn return of a constable made in the discharge of his official duty, and this mode of prosecuting offenses which it is the constable’s duty to return, especially where the offender is a corporation which cannot be held to bail by a committing magistrate, is not oppressive or extraordinary. Indeed it has been said that the return of the constable being made under a special oath at the time of the return, is the equivalent of an oath and charge before a magistrate, and it becomes the duty of the court to take notice of the return: McCullough v. Commonwealth, 67 Pa. 30. In the same case the court pointed out the distinction between an indictment based on an illegal presentment of the grand jury, and one based on the sworn return of a constable. “ The usual course,” said Ag-new, J., “ where a presentment is thus surreptitiously procured, and bill founded upon it, has been to quash the indictment on motion, and before plea pleaded. This is the only way to reach the wrong. But when the bill has been regularly sent up by the district attorney, under the sanction of the court, upon the return of the proper officer, as in this case, the bill cannot be quashed unless 'for matters apparent on the face of the record.” Later eases hold that an indictment may be quashed for matters not apparent on the record: Commonwealth v. Bradney, 126 Pa. 199, and cases cited on p. 204. Commonwealth v. Green was a case where the indictment was quashed upon extrinsic evidence showing the illegality of the presentment. And possibly a case might arise where the court would be justified in quashing an indictment based on a constable’s return for matters not apparent on the record. But none of these cases are authority for the proposition, that although there be no irregularity apparent on the face of the record and none be shown by extrinsic evidence, yet the court has discretionary power to quash the indictment. Considerable is said in the appellee’s paper-book as to the merits of the case. But these facts alleged as a defense could not be considered by the court below on a motion to quash nor are they before us. The judgment of the quarter sessions quashing the bill of indictment is reversed, and the record is remitted for further proceedings according to law.