Commonwealth v. Rodman

Opinion by Rice P. J., In this commonwealth it is a misdemeanor punishable by fine and imprisonment for any person to convey, or cause to be delivered to a prisoner lawfully -committed or detained in any jail, any disguise, instrument or arms proper to facilitate the escape of such prisoner, although no escape or attempt to escape be actually made: Act of March 31, 1860, sec. 4, P. L. 382. The defendant was tried and convicted upon the theory that the indictment charged an attempt to commit this statutory offense. The objection that the evidence did not show that it was committed within the jurisdiction of the court is not sustained. There was ample evidence of this essential. Nor, even if there were any assignment properly raising the question, could it be held that there was any error in the admission of the testimony referred to in the motion for a new trial. In connection with other testimony of which it forms a part, which is not set forth in the so-called assignment as our rules require, it had a direct and legitimate tendency to negative the defendant’s claim that he had the instruments on his person for an innocent purpose, and was clearly within the principle of the recognized exceptions to the general rule, that a distinct and independent crime cannot be given in evidence against the accused upon trial for another offense. See 1 Greenleaf on Evidence (15th ed.), [612] sec. 53 and notes; 1 Wigmore on Evidence, pp. 390-395; Commonwealth v. House, 6 Pa. Superior Ct. 92, at pp. 106-7, and cases there cited. The only remaining question attempted to be raised is whether the indictment charged an indictable offense. It is true section 50 of the criminal procedure Act of March 31, 1860, P. L. 427, provides that a party indicted fora felony or misdemeanor may be found guilty of an attempt to commit the same. But this did not abrogate the common-law rule (see Smith v. Commonwealth, 54 Pa. 209; Commonwealth v. Jones, 10 Phila. 211; Rex v. Roderick, 7 C. & P. 795; 12 Cyc. of Law and Procedure, 176) that, in general, an attempt to commit a misdemeanor is a misdemeanor whether the offense is created by a statute or was an offense at common law. Therefore it was not necessary to indict the defendant for a crime of which he was not guilty in order to convict him of a crime of which he was guilty. But it is claimed that the indictment is contradictory in terms and so ambiguous and uncertain in meaning that it cannot support the judgment. After certain material preliminary averments, not necessary to be noticed here, it charges that the defendant “ did attempt to commit an offense prohibited by law,” and then in apt terms and according to approved form, describes the offense attempted and the acts constituting the attempt, and concludes, “but the said George Rodman then and there did fail in the perpetration of said offense and was intercepted and prevented in the execution of the same. Contrary, etc.” This averment must be read with the context, and being so read it plainly means that the defendant failed to perpetrate the offense he attempted ; it is not reasonably susceptible of being interpreted to mean that he failed to perpetrate the attempt. See Wharton’s Prec. of Ind. 1046, 1047; Hackett v. Commonwealth, 15 Pa. 95. We find no error in this record; the evidence fully justified the submission of the case to the jury; and it was submitted in a charge to which no exceptions were taken, and no valid exception could be taken. Therefore the conviction must be affirmed. In thus deciding the appeal upon its merits it is not to be understood that the objections to the assignments of error ai’e regarded by us as either trifling or unimportant. The judgment is affirmed.