Opinion
December 18, 1935.
January 31, 1936.
Criminal law — Practice — Defects in proceedings prior to indictment — Waiver by trial — Defect in information — Situs of offense.
1. Where the defendant pleads not guilty and goes to trial, he waives any defects of form in the indictment or the proceedings prior to the indictment, and such waiver is effective as to all subsequent trials.
2. Defects in the proceedings prior to indictment should be raised by motion to discharge before indictment found.
3. A motion to quash the indictment of defendant for statutory rape, on the ground that the information failed to state that the offense had been committed in the county in which he was being tried, was properly refused when the case came up for trial a second time, where it appeared that the defendant had previously not raised this objection but had originally pleaded not guilty and gone to trial.
Appeal, No. 397, Oct. T., 1935, by defendant, from judgment and sentence of Q.S., Lebanon Co., Dec. Sessions, 1934, No. 38, in case of Commonwealth v. Ira Lingle.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Indictment for statutory rape. Before HENRY, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty and judgment of sentence thereon. Defendant appealed.
Error assigned, among others, was refusal of motion to quash indictment.
James R. Koller, for appellant.
James L. Atkins, District Attorney, for appellee.
Submitted December 18, 1935.
The defendant was indicted for `statutory' rape. He pleaded `not guilty' and went to trial. The jury disagreed. When the case came up for trial the second time, the defendant moved to quash the indictment, because the information, on which it was founded, failed to state that the offense had been committed in Lebanon County.
The indictment charged that the crime had been committed in Lebanon County, and all the evidence on the first trial, with respect to the commission of the crime, fixed Lebanon County as the scene of the offense.
The court below refused to quash the indictment and the case went to trial. Again the evidence supporting the charge fixed Lebanon County as the place where the offense had been committed.
The defendant was convicted. He made a motion in arrest of judgment based solely on the fact that the information failed to state that the offense had been committed in Lebanon County. The court below refused the motion and sentenced the defendant. The defendant has appealed.
The action of the court below was right. By his plea and going to trial defendant waived any defects of form in the indictment or the proceedings prior to the indictment: Com. v. Schoen, 25 Pa. Super. 211, 213; and this waiver was effective as to all subsequent trials. The disagreement of the jury on the first trial, which necessitated a second trial, did not require a new plea. Having once entered a plea he could not thereafter object to formal defects in the indictment or the prior proceedings.
While section 11 of the Act of March 31, 1860, P.L. 427, relates only to formal defects in the indictment, the salutary and sensible rule there established has been applied with equal force to defects in the proceedings prior to indictment, which should be raised by motion to discharge before indictment found: Com. v. Brennan, 193 Pa. 567, 44 A. 498; Com. v. Keegan, 70 Pa. Super. 436, 438; Com. v. Dingman, 26 Pa. Super. 615, 619.
The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in that court at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.