Commonwealth v. Havrilla

Citations

• 38 Pa. Super. 292
• 1909 Pa. Super. LEXIS 128

Syllabus

<p>Constitutional law — Public officers — Special district attorney — Act of May 2, 1905, P. L. 351.</p> <p>1. The Act of May 2, 1905, P. L. 351, authorizing the attorney general to appoint a special district attorney under certain circumstances is not unconstitutional as depriving the district attorney, an elective constitutional officer, of his power. While the legislature may not abolish the office of district attorney, it may regulate the method of its administration.</p> <p>Election law — Neglect to deliver returns to prothonotary — Indictment— Surplusage — Acts of July 2, 1839, P. L. 519, January 30, 1874, P. L. 31, and June 10, 1893, P. L. 419 — Criminal law — Binding instructions.</p> <p>2. Where an election officer is charged with willful fraud in not delivering election returns to the prothonotary, and the jury finds him guilty of neglect of duty in not delivering the said returns, the words “willful fraud,” which are appropriate to an indictment under the Act of July 2, 1839, P. L. 519, may be stricken out as surplusage, and the indictment will then stand good under the Act of January 30, 1874, P. L. 31.</p> <p>3. All unnecessary words in an indictment may be rejected as surplusage if the indictment will be good after they are stricken out.</p> <p>4. On the trial of an indictment against an election officer for neglect to deliver election returns to the prothonotary, it is reversible error for the court to give binding instructions to the jury to convict the prisoner.</p> <p>5. In such a case the court may instruct the jury that the evidence is not sufficient to warrant a conviction and may set aside a verdict found in opposition to such instruction, but cannot direct a verdict of guilty, because the defendant cannot be found guilty but on the judgment of his peers. The question of guilt often involves an intermingling of law and fact, and the whole case is given to the jury. The trial of such a case is by a jury of the country, not by the court. The burd