Strasser v. Seaman.

This is an action of trespass brought into court upon appeal from the judgment of an alderman. The defendant in his affidavit of defense raises this question of law: Want of jurisdiction in the alderman, for the reason that the suit is for consequential damages arising from defendant's negligence. The alderman's transcript states that: "Plaintiff claims the recovery of damages . . . for injury done and committed to an automobile, the property of the plaintiff, by the defendant negligently driving by force an automobile operated by him into and against the said automobile of the plaintiff." Plaintiff contends that because the words "by force" are used that the alderman had jurisdiction, and cites as authorities Strohl v. Levan, 39 Pa. 177, and Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299.

It is clear from the transcript that the negligent driving of the defendant is made the basis for the recovery of damages. The additional words "by force," as used, if they mean anything, mean merely that, by the negligent driving, the automobile with force was projected against the automobile of the plaintiff, thereby causing the damage claimed.

Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299, has no application to this case. Whilst the injuries in that case resulted from negligence, it was not the negligence that was sued upon and for which the plaintiff recovered, but for $40, being the amount expended by plaintiff at the special instance and request of the defendant. That is, it was a suit in assumpsit upon a contract. The court there specifically says, on page 305: "The first was based on express contract and was clearly within the jurisdiction of a justice of the peace." The court held that the second part of plaintiff's claim of $21 for damages alleged to have been sustained by reason of defendant's negligence could not be recovered. Strohl v. Levan, 39 Pa. 177, was not a case of negligence, but one of wilful wrong, as is clearly shown by the facts of the case and by the charge of the court below, where (page 178) the court says: "It was the duty of the defendant not only to allow him to pass, but to have facilitated his movements in that way. It was clearly his duty to have yielded part of the road if he could. If not, he should have stopped his team and have allowed the plaintiff to pass. He was not asked to do either. The plaintiff was willing to make his way round the wagon or team. If you believe the evidence, the defendant was not willing that he should do so, but, sitting on his wagon with a load upon it, and four mules attached to it, allowed his son to start the team at a rapid rate to prevent his passage. Failing in that, the whip was applied, and the team pursued the light carriage, doubtless with a view of punishing plaintiff for having accomplished a passage round them. If such was the case, the act was wrong, and the party deserves to be punished."

Neither of these cases supports plaintiff's contention, but are authorities for defendant's contention. See, also, Thilow v. Philadelphia Traction Co., 4 Dist. R. 83; Lynch et al. v. Alderfer, 6 Montg. Co. Law Repr. 108.

Judgment is directed to be entered in favor of the defendant.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Ely.

Statutory and common-law rape-Variation between complaint and indictment-Waiver of arrest and hearing-Demurrer.

An indictment charging statutory rape and assault with intent may be drawn upon a complaint charging common-law rape.

A complaint is not required to be in the exact legal form that is required in indictments, and in drawing indictments considerable latitude is allowed a district attorney. He need not follow the exact wording of the complaint and may draw one or more indictments or counts or frame a single indictment on several complaints or charging a different grade of crime. It is sufficient if the offense charged is the same in substance and the defendant had notice of the nature of the charge.

Where a defendant accused of crime voluntarily appears and enters bail before court, he thereby waives arrest and hearing.

A demurrer is the mode in which objection is made to an indictment as insufficient in law or defective in form.

Demurrer and motion to quash. Indictment No. 87 of September Sessions, 1919.

Charles E. Workman, for motion.

S. V. Hosterman, contra.

December 27, 1919. Opinion by HASSLER, J.

The defendant has filed a demurrer to this indictment and also a motion to quash it. The same reasons are given in each. A demurrer is the mode in which objection is made to an indictment as insufficient in law or defective in form, and as no such objections to this indictment are made, in any of the reasons filed, we overrule the demurrer and will confine our attention to the motion to quash.

A complaint was made against the defendant before a justice of the peace on July 26, 1919, charging him with an "indecent assault upon one Eva Snyder by soliciting her chastity." He was arrested, had a hearing on August 1, 1919, and committed to jail in default of bail for trial at Court. On August 1, 1919, at the time of the hearing, another complaint was made before the same justice, charging that the defendant did "unlawfully commit an assault on the person of Eva Snyder, a minor child of this affiant, by forcing and threatening her life, and endeavored and did then and there have sexual intercourse with the person of the said Eva Snyder, and against her will." The defendant was not arrested on the charge contained in the latter complaint, but on August 2, 1919, he gave bail before one of the judges of this Court, conditioned for his appearance at the September term of Court to answer the charge of rape.

Two of the reasons contained in the motion to quash contend that the defendant is improperly held on the charge of rape because he was

VOL. XXXVII, No. 22

Commonwealth v. Ely.

never arrested on it, and was not given an opportunity to be heard by the justice of the peace before whom the complaint was made. Nothing is better settled than that when a party voluntarily appears in Court he waives all defects in the issuing and service of process. In this case the defendant waived arrest and hearing by voluntarily submitting himself to the jurisdiction of the Court, in entering bail conditioned for his appearance therein to answer the charge of rape made in the complaint.

The indictment contains two counts. The first charges statutory rape upon the person of Eva Snyder, a minor under the age of sixteen years, and the second, assault on said Eva Snyder with intent to commit rape. We will consider the latter count first.

It is contended that the complaint of July 26, charges solicitation, and not assault and battery, and that it is not sufficient to sustain the second count of the indictment charging assault and battery with intent to ravish. Even though this contention is correct it would not invalidate this count, because the complaint made on August first is broad enough to justify the district attorney inserting it in the indictment.

A complaint is made to justify the issuing of a warrant by a justice of the peace. Without it a justice cannot issue a warrant for the arrest of a defendant. A complaint is not required to be in the exact legal form that is required in indictments. When it is returned to Court the district attorney in the exercise of his discretion can draw one or more indictments on it, or frame a single indictment on several complaints: Com. v. Morton, 12 Phila. 595. Or he may draw a single indictment charging a higher grade of crime than that charged in the complaint: Com. v. March, 1 Pa. C. C. 81. Considerable latitude is allowed a district attorney in this exercise of his discretion, and his action will not be interfered with unless he abuses it. In drawing an indictment he need not follow the exact wording of the complaint. It is sufficient if the offense charged is the same in substance. The fact that the complaint does not contain as full and specific a statement of the offense as is found in the indictment does not furnish cause to object to the latter: Com. v. Gouger, 21 Sup. 217; Com. v. Campbell, 22 Sup. 98; Com. v. Dingman, 26 Sup. 615; Com. v. Weber, 67 Sup. 497. The complaint of Augugst 1 is broad enough in its terms, as we have stated, to justify a count in the indictment charging assault and battery with intent to commit rape. If the indictment had charged common-law rape alone, a conviction could have been had on the charge contained in the second count of this indictment, viz: assault and battery with intent, even though no mention had been made of it in the indictment, as assault and battery is a constituent part of that offense. That being the case, certainly the district attorney did not abuse his discretion in inserting a count in the indictment charging that offense, when he decided to charge statutory rape instead of common-law rape in the first count of the indictment.

It is contended as to the first count in the indictment that as the complaint charges common-law rape, no indictment can legally be framed on it charging statutory rape. The former is the higher grade

Commonwealth v. Ely.

of crime, so that in charging the defendant with statutory rape, he was charged with the less serious grade of the same crime. Of this he has no reason to complain as the complaint gives him notice of the nature of the offense which he will be called upon to answer, and he knew the person upon whom the alleged offense was committed as he was present at the hearing before the justice on August 1, 1919, when she testified against him.

In Com. v. Dingman, 26 Sup. 615, Judge Porter says: "The only question to be considered is whether the written accusation . . . sufficiently informed the defendant that he might be put on trial for the crime charged in the indictment. It is not necessary that an information should charge the crime with the same detail and technical accuracy required in an indictment. If the essential elements of the offense be set forth in terms of common parlance the information will be held to be sufficient." In Com. v. Ramsay, 27 D. R. 889, the Allegheny County Courts decided that where a complaint charged common-law rape, an indictment charging statutory rape was properly drawn upon it. The defendant in that case first moved to quash the indictment, and on the Court's refusal to quash it, he plead to it, was tried and convicted. In his opinion Judge Reid says: "If defendant were indicted for a more serious grade of offense than that charged in the information, he might well complain, but he was indicted and tried for the offense actually committed, statutory rape. The inexperience of the magistrate, who mistakenly charged common-law rape, and the lack of knowledge of the father, who made the information, thus embodying some erroneous statements, should not be permitted to prevent judgment against a defendant properly indicted upon the facts."

We are of the opinion from these cases that both counts in this indictment are justified by the complaint of August 1, 1919, and therefore we refuse the motion to quash the indictment, and overrule the demurrer.

Court of Common Pleas of Montgomery County

Lund v. Commonwealth.

Eminent domain-Award of viewers-Appeal-Discontinuance-Consent of other party.

Where the Commonwealth condemned land for park purposes, and both parties took an appeal from the viewers' award, the Commonwealth was allowed to withdraw its appeal without the consent of the other party. In such a case, the rule that one party cannot discontinue its appeal unless the other consents does not apply, in that the remaining party is not prejudiced because its own appeal stands and secures him a retrial.

In re condemnation of lands for park purposes.

Lund v. Commonwealth.

H. I. Fox and H. H. Gilkyson, for plaintiff.

J. P. Hale Jenkins, for defendant.

March 24, 1919. Opinion by SWARTZ, P. J.

The jury of view filed its report in the Court of Quarter Sessions on September 30, 1918. Damages were awarded to the said Ebenezer Lund, trading as William Lund & Son.

On October 28, 1918, the Commonwealth filed exceptions to the report of the viewers and on November 19, 1918, filed additional exceptions.

On the said 28th day of October, 1918, Ebenezer Lund took an appeal from the award of the jury of view to the Court of Common Pleas.

On the following day, October 29th, the Commonwealth also filed an appeal from the said award to the Common Pleas.

On November 25, 1918, the Commonwealth asked leave of Court to withdraw said appeal. A rule was granted upon this application, and upon the return day, counsel for Mr. Lund opposed said withdrawal.

By filing her appeal the Commonwealth did not waive her rights to a hearing on the exceptions. "The filing of exceptions to the report of viewers has nothing to do with the right of appeal. That right can only be exercised according to the terms in which it is given. The hearing of the exceptions can go on, and be completed before the case is actually tried, and if the exceptions are decided favorably to the appellant so as to defeat the proceedings, no trial will be necessary. If otherwise, the trial can then proceed." Bowers v. Braddock Borough, 172 Pa. 296; Cresson Street, 10 Pa. Superior Ct. 332.

Where one party takes an appeal to the Common Pleas, he cannot withdraw the same after the time for filing an appeal has expired, without the consent of the opposite party: Schuylkill R. R. Co. v. Harris, 124 Pa. 215.

An appeal by one party brings up the whole case and it must be tried de novo. The withdrawal of the appeal would thereby deprive his adversary of the re-trial to which he is entitled by reason of the appeal.

But this rule has no application where both parties appeal and one withdraws. The remaining party is not prejudiced because his own appeal stands and secures for him a re-trial of the case before a jury in the Common Pleas, and this is all that he demands. No further benefits would accrue to him, even if his opponent's appeal remained, intact, upon the record.

And now, March 24, A. D. 1919, the rule for leave to withdraw the appeal entered by the Commonwealth is made absolute. The Prothonotary will certify this order into the Court of Quarter Sessions.