Commonwealth v. Tryman

Opinion by Tkexler, J., The defendant was charged before an alderman of the City of Altoona with drunkenness, profanity and disorderly conduct, and after hearing was convicted of the three several offenses, and sentenced in each. Upon certiorari to the Common Pleas, the conviction as to disorderly conduct was set aside, but as to the other offenses, the exceptions were dismissed. No judgment was entered affirming the judgment of the justice. In Com. v. Nichols, 38 Pa. Superior Ct. 504, this court stated, “We are not willing to commit ourselves to the proposition that an order upon certiorari to a justice of the peace [244] merely overruling exceptions to his record is a final judgment from which an appeal can be taken.” We will, however, consider the case as if there were no question as to its proper submission. It is alleged by the appellant that the justice of the peace did not return the record as it actually was, but that he added thereto. The lower court dismissed the exceptions. We cannot now undertake to decide the question of fact involved in the controversy. ' We are bound by the record as certified and returned by the justice. Having taken this view in the case, we need not now consider such objections as are urged to the partial record, and which do not apply to the complete record. The remaining objections urged are as follows: First: There are three distinct and separate offenses charged in one complaint, and three sentences imposed. The rule as to joinder rests on a technicality which will not stand in the way when the interest of the defendant is not jeopardized: Com. v. Dudley, 46 Pa. Superior Ct. 337. Even if the offenses were different and separate offenses, it is no objection that separate offenses of the same nature are joined against the same defendant. In misdemeanors no objection' can be made to joining several in the same indictment, in any stage of the proceeding : Com. v. Gillespie, 7 S. & R. 469. Second: Defendant claims that the place where the offenses were committed is not set forth in the transcript. The defendant was charged with violating the Act of April 22,1794, “It was the obvious intention of the legislature when they introduced into the fourth section of said act, a form of conviction to guard against reversals for want of technical niceties. The form is general without stating the time or place where the offense was committed” : Com. v. Wolf, 3 S. & R. 48. When the form which the act permits to be used does not require the items of time or place to be set out, we may well conclude that -they are not essential to the record, although usually set forth in other cases of summary conviction. Our [245] court has decided in Com. v. Dukehart, 17 Pa. Superior Ct. 71, that the omission to state the place in the docket, is not a reversible error when the information sets forth the fact. The information in this case does set forth the place. See also Poor v. Zinck, 1 Ashmead 64. Third: The defendant urges that the record shows a fining of the defendant and an alternative sentence of thirty days’ imprisonment, the alternative sentence being general and applying to each offense. We do not think the objection is well taken. The thirty days’ imprisonment evidently applies to the disorderly conduct. The court having sustained the exception as to this, we have nothing to do with it. That conviction has been set aside. Under the Act of 1794, the justice could not commit for thirty days. The alternative sentence for profanity is a period of not more than twelve hours, and for intoxication not more than twenty-four hours. It is evident, therefore, that the justice omitted to put upon his record the alternative sentences in the profanity and drunkenness charges. These he was not required to set out in his docket. Com. v. Borden, 61 Pa. 272, decides that. Under the language of the act, the imprisonment is not a part of a sentence, but is “a part of the warrant to levy for forfeiture.” Fourth: The defendant attempted to distinguish between drunkenness and intoxication, alleging that he was charged with drunkenness before the justice and that the Act of 1794 refers to intoxication. Defendant knew with what offense he was charged, and the justice in his record referred to the Act of April 22,1794, and it would certainly be an excess of refinement to draw any distinction between the terms used. We find nothing on the record which would justify a reversal. Judgment affirmed.