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(Appellate jurisdiction.)

ings therein, as, in their discretion, they shall judge necessary or proper, provided that such rules shall not be inconsistent with the constitution and laws of this commonwealth." This, being an enabling act, is to be liberally construed; the power to establish rules for all cases, embraces the power to make a rule in a particular case; omne majus continet in se minus.

The next error of proceeding alleged, is the allowance of the amendment in the cases of the district-attorney and prothonotary; this was not error, but fell within the sound discretion of the court. The grounds of allowance are not in the record, and cannot be reviewed by us; the amendment was not of an omitted prerequisite to confer jurisdiction, nor of a matter essential to the frame of the petition, but was a mere specification of a fact comprehended within the general terms of the complaint, and belonging only to the proof. The miscount of 40 votes for Sheppard which belonged to Gibbons, occurred at the same election, entered into the same general returns and affected the result; the matter pertained to the same case and was necessary to determine it "on its merits."* The power of amendment exists at common law, falls within the discretion of the court and cannot be reviewed; to the numerous authorities cited by the defendant in error, we may add Grove's Appeal, 37 Penn. St. R. 443; Cambria Iron Co. v. Tomb, 48 Ibid. 388; Keen v. Hopkins, Ibid. 445; Boyd v. Negley, 40 Ibid. 377; s. c. 53 Ibid. 387; Pennsylvania Railroad Co. v. German Lutheran Congregation, Ibid. 445. And in point of reason, why should the court not have power to amend in a contested election case? it is a judicial remedy, and concerns important rights. On what ground should the cause of the people be held so strictly, that a mere specification of facts, within the same general complaint, relating

* The amendment in this case was suggested by the court and allowed, after the testimony had been closed, the case fully argued, and the court had delivered its opinion upon the merits! This amendment entirely changed the result.

(Appellate jurisdiction.)

to the same contest and the same results, should not be allowed, in order to reach the very "merits" the court is ordered to try. It does not appear from the record, that the matter was illegal, or was objected to, or that surprise was alleged, or that it was matter not developed in the testimony.* The right of a court to make an order, necessary to the justice of the case, nunc pro tunc, cannot be questioned; in Fitzgerald v. Stewart, 53 Penn. St. R. 343, a power was supported, to enter judgment, nunc pro tunc, six months after verdict, in an action of slander, to prevent an abatement of the suit by the death of the plaintiff, and after motion for a new trial, in arrest of judgment, and to abate the writ; in Slicer v. Bank of Pittsburgh, 16 How. 571-9, a judgment, nunc pro tunc, was entered in 1836, to support a sheriff's sale made in 1820, and was sustained upon numerous authorities.

The last head is that concerning the frame of the complaint. The refusal of the court to quash the petition is not a ground of error; their jurisdiction is entire and exclusive, and a motion to quash is a matter of discretion. Respublica v. Cleaver, 4 Yeates 69. In this court, there can be but one inquiry, whether the petition be sufficient in its frame, and set forth a proper ground of contest? We shall do the plaintiffs in error full justice, in permitting the assignments of error to stand as an exception to the sufficiency of the petition. Like an indictment, a bill in equity or a libel, when the record of it is before us, we can only inquire whether it sets forth a sufficient charge or complaint. The evidence in support of the charge is a different matter, and need not be set forth or specified; the law does not demand it and no analogy justifies it. Indeed, the reverse is true, for the court is required to "proceed on the merits thereof," indicating thereby that the proceeding is not to be embarrassed by technicalities; then why should an election petition have

* How could it, when the testimony was not before the court? but it did appear, at what time it was allowed.

(Appellate jurisdiction.)

more precision than other complaints at law, civil or criminal? The remedy to set aside an undue or fraudulent election, is as important as remedies for other injuries; if the life, liberty, property and happiness of the citizen demand certainty to a common intent only, why should a contested election require more? indeed, the nature of the subject demands even less. The innumerable frauds abounding in an election where 120,000 votes are polled, in 266 precincts, render a minute specification impossible within ten or twenty days; the only safe course, in such a case, is, to proceed in analogy to the practice in other cases, by a notice of particulars, ordered and governed by the discretion of the court. It would be an intolerable technicality, if the petitioners were required to set forth in their complaint, within ten days after the election, every illegal vote, every illegal act of the election boards and every instance of fraud; such a nicety would prevent investigation and defeat the remedy itself. The general rule in all pleadings is, that certainty to a common intent only is required. Heard's Steph. Pl. 380.

The early decisions in this city were too stringent.* A much truer exposition of the law, and one to be adhered to, is found in the opinion of the late Judge Thompson, in Mann v. Cassidy, 1 Brewst. 26-7; as remarked by him, "the rule must not be held so strictly as to afford protection to fraud, by which the will of the people is set at naught, nor so loosely as to permit the acts of sworn officers, chosen by the people, to be inquired into, without adequate and well-defined cause.' We find many analogies to guide us. "The general rule in all indictments," says Sergeant, J., "is, that the charge must be positively averred; but in what cases it is, or is not, sufficiently

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* It must be borne in mind, that this decision was made by a bare majority of the court; and in testing the value of such a precedent, the relative ability of the dissenting judges is an important element of consideration. Chief Justice Thompson and Mr. Justice Sharswood dissented from the views of the majority. The principles here condemned are those of that eminent jurist Judge King.

(Appellate jurisdiction.)

averred, is not ascertained with precision, and must be left, in a great measure, to the legal discretion of the court; certainty to a common intent in general only is required, and not certainty in every particular." Sherban v. Commonwealth, 8 Watts 212. Whether a bill of particulars or specification of facts shall be required, is exclusively in the discretion of the presiding judge. Whart. Cr. L. § 291, citing Commonwealth v. Giles, 1 Gray 466; Regina v. Kendrick, 5 Ad. & Ellis 49; Rex v. Hamilton, 7 C. & P. 448; see also Commonwealth v. Hunt, 4 Met. 125. In a libel for divorce, it was held, that the proper practice is, to give notice that, between two specific dates, acts of cruelty, &c., are intended to be proved. Steele v. Steele, 1 Dal. 409; see also Garrat v. Garrat, 4 Yeates 244.

There are many cases, at common law and under statutes, where the description is general, and because of the multitude of particulars constituting the offence or complaint, the prosecutor may be required to give notice of the acts intended to be proved. Thus, in the case of a common barrator, 1 Russ. Cr. 185-6; 2 Hawk. P. C. c. 25, § 59; and disorderly-houses, houses of ill-fame, and gaminghouses, Whart. Cr. L. § 289; tippling-houses, Commonwealth v. Baird, 4 S. & R. 141; lottery tickets, Commonwealth v. Gillespie, 7 S. & R. 469; timber trees, Moyer v. Commonwealth, 7 Penn. St. R. 439. The court remarked, in the last case, that the legislature never intended that an indictment for cutting timber trees should be so special as to defeat the end proposed. We may refer also to the case of Barker v. Commonwealth, 19 Penn. St. R. 412, for using vulgar and obscene language to crowds; and Commonwealth v. Mohn, 52 Ibid. 243, the case of a common scold; and see Edge v. Commonwealth, 7 Ibid. 277; and Commonwealth v. McKisson, 8 S. & R. 420.

In view of this array of cases, affecting the highest absolute rights of individuals, it is impossible to affirm such a stringent rule as we are asked to apply to contested election cases, or to say, that this petition is so fatally de

(Appellate jurisdiction.)

fective in its frame that it should have been quashed on motion, or set aside on demurrer. It sets forth in befitting terms, the general election of 1868, the persons voted for, the number of votes returned for each, and the majority for the persons returned; charges an undue election and false return, alleges the election of the opponent, and sets forth the grounds of the illegality of the election. It charges that the officers of the election fraudulently conducted and carried on the election, with a wilful disregard of all the requirements of the law; and then specifies their various fraudulent acts, by means of which the fraud was perpetrated, and illegal votes suffered to be cast for the persons returned. Here, I may notice in passing, the omission to set the letter V opposite the names of the electors who had voted; this is specified in the petition as one of the fraudulent acts of the election officers, and not as a cause, in itself, sufficient to set aside the election. The petition then avers that all these acts were done and committed, with the intent and purpose of holding an undue election, and to prevent an honest expression of the popular will, and a true ascertainment of the real votes of the qualified voters; and that in pursuance of this conduct, the popular will was not ascertained, but was defeated, whereby the election was rendered false, fraudulent, undue and void, and the return void, and should therefore be disregarded. The petition does not close here, though much more descriptive and certain than most forms of indictment, petition and libel, but proceeds to specify the number of fraudulent votes received in the several divisions, describing them specially, numbering, in the aggregate, several thousands, and largely more than sufficient to overthrow the majority for the person returned as elected. Here is certainty, not only to a common, but to a very specific intent; how can a petition so specific in its charges, and minute in its specifications, be decreed to be defective in its frame? Strong bias only can entertain a doubt of its sufficiency.

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