The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-01-22

Ion was written by Judge bicet anu 40
In substance as follows:
MgEsER OPINION
This was an action in assumpsit upon recog'
uizancc Of bail taken and acknowledged before a
magistrate Of the City OF Philadelphia, cohui'
sioncd for the appearance of Clarence MeeS'r
sat the next term OF the court OF oyer ana ter'
miner and quarter sessions OF the peace Tor the
city and county of Philadelphia, TO he holden on
the first Monday uf December, 1sO0,' etc. lhe
particular charge upon which the defendant was
arrested was conspiracy TO procure fraudulent
VOTES and TO violate the election laws OF PENN
sylyania, and procuring fraudulent votes. Inc
statement alleged: "And the said rccognizance
was on the 2ist day Of December, a. d. lovo' ad'
Judged and dccrccd to be forfeited tas VIII more
fully appear by reference 10 the records in the Of
acc of the clerk of said court) and the penalty
thereof became due and payable and has not
bccn paid" judgment entered for want OF
sufficient affidavit of defense
After discussing the several technical
points raised by the defense to defeat
the working of the forfeiture, Judge
Rice sums up as follows:
It would seem from the official report of the
case of Fox against the Commonwealth (citcd as
pertinent because of similarity with the case at
bar) as we'll as from the arguments of counsel
that it did not appear by an nsprction oi fhe
docket or of the rccognzancc itself, that 1T had
ever been marked fled The contention OF the
commemorative counsel was that as the record
showed that the recognizance had been forfeited,
II must have been of record. 1t was of such
case that the court s2eakng when it de-
clarcd that the entry OF the forfeiture of the rec
ogniz,ncc stands for proof Of all the steps neces
sary to complete the forfeiture. The court had
in mind the very objection raised by tile plea;
FOR after referring to the Act of March 3O 1921,
SIN u. 426 requiring the Justice to make
full and complete return of said rcaognzance or
surety to the proper court OF the city or county
having cognzarcc OF the case the court said
1--WE must suppose therefore the transcript was
before the court
We think we do not give too broad an effect
to this decision in citing it an authority for
our conclusions in the present case. that 1t IL
10 be presumed that the recognizance was actu-
ally before the court when the adjudication Of
forfeiture WAS made and that the omission to
mark the recognizance filed and to note that fact
on the quarter sessions docket was not such an
jrrcgularity as would have warranted the court
in treating the adjudication as a nuliity in an
action upon the rccognizance.
In looking through this record we find ev.
dCncc of much inattention TO these simple and
important details which ought to have been at
tended to, but find no substantial defect which
would warrant reversal OF this judgment.
We remark in conclusion that have based
our decision on the. record and presumption'
flowing from it. We do not regard the deposi-
tiuns taken the rule to remit the forfeiture az
properly before us on this appeal, therefore we
have not considered them. Possibly we might
consider the fact that such rule was taken and
discharged, but have not found it necessary
TO look into that question.
Judge William D. Porter is recorded
as dissenting from this opinion.
BERGMAN CASE.
The attempted assassination of II. c.
Frick, manager of the Carnegie Steel
company in 1892. by Alexander Berg
man, is recalled by the decision in the
case of the Commonwealth eX rel.
Bergman against William c. Johnston,
warden of the Western pententiary of
Pennsylvania.
Bergman, it will be remembered,
threw a bomb at F'rick in the mill of
the Carnegie company. He visited the
mill three different days for the pur-
pose of carrying out his design. He
was convicted of attempted murder and
felonious wounding. and on three diff
ferent indictments for entering a build
ing to commit a felony.
He was sentenced to five years and
seven years. respectively, in each of the
first two cases, and three years each in
the last three cases, the terms to run
consecutively, making twenty-one years
in all. He has served nine years.
Under the new Communication act his
sentences of seven and five years would
be diminished to seven years and seven
months. Alleging that the conviction
was irregular in the last three cases, he
recently sought to be released on
habeas corpus. If he could show that
his conviction in the three felonious
entry cases was illegal he would be en-
titled to his freedom at once. for he
has served more than the time of the
sentences in the first two cases. The
opinion of Judge Rice is, in part, as
follows:
1t appears by the petition and answer that
the petitioner is now confined in the Western
pcntcntary by virtue OF commitments in oNecu-
ton of judgments OF the court OF quarter sessions
OF Allegheny county upon three several indic,.
nienS laid on different days, each OF which
charged that the petitioner with force and
arms, fconiously, did wiully and maicously
enter the building OF the Carnegie Steel company,
an association of limited partnership under the
laws of this state, there situate. with intent 10
commit a felony in said building contrary To
Is being unlawfully restrained and is entitled to
discharge upon habeas corpus, because the III.
dictments upon which the judgments We're en-.
tered charged no o-en-c mdctable under the
common law or the statute law of Pennsylvania.
The question raised by the defendant is whether
or not the omission TO specify, in the indict-
ment, the character or other description oi tllc
building is such defect as vitates the judg.
ment.
STATUTORY CRIME.
1t is to be noticed that this is a statutory
crime In discussing the question, we are not to
he understood as passing on the suffcency of an
indictment in the case Of statutory prohibition
of common law offense by name, without fur.
ther description as for example, larceny, where
tie statute does not define what larceny is
Where the oifense is purely statutory, having !o
relation 10 the common law-where, in othel
words, the statute specifically sets out villa;
acts shall constitute the oAensc--it is, as a gen,
cral rule sufficient in the indictment to charge
the defendant with acts coming fully within tho
statutory description, in the substantial word
of the statute, without any further expansion OF
the matter.
These indictments charge all the essential OF
the crime, and i'll describing the place entered
as the "buiding" of the Carnegie Steel com
pany, they use the word that is used in the
statute. There was, therefore, not only sub
stantial but literal compliance with the act Il
the omission to specify what kind of building
this was. where it was situated and TO whl
uses il was put, was defect, it was, at The
most, only formal defect and anendable A
TO the general rule that formal defects. not OBJ
ieeted TO before swearing the jury are curet
by the plea and cannot afterwards be taken ad
vantage OF, il is unnecessary TO cite authorities.
Pursuing the same course OF reasoning as wa
followed in the case of commonwealth agains
Newcomer, 40 Pa. AIS, We may conclude the dis