Commonwealth v. Frye

was indicted. The district attorney claimed there was an estoppel by reason of the defendant's agreement.

We are of opinion that the rulings in Blackman vs. The Commonwealth, and Commonwealth vs. Bishop, just cited, support our refusal to quash the indictment now before us. In each of the said cases cited the indictment failed to show the commission of an offense within the statutory period, but proof was allowed to bring the defendant within the exception extending the statutory period. Why, in our case, should the prosecuting attorney be denied the right to show that the defendant committed the offense within the statutory period? If he is not confined to the date named in the bill, but may show any other time within two years prior to the finding of the bill, why may he not show that the true date of the offense was within said period?

The reasoning in Commonwealth vs. Bishop, we think, sustains this conclusion.

As we read United States vs. Cook, 17 Wallace, 168, the opinion in that case directly supports our refusal to quash the indictment. The indictment showed on its face, that the offense was not committed within the statutory period, prior to he finding of the bill by the Grand Jury. The Court said, inter alia:"Nor is it admitted that any different rule would apply in the case if the statute of limitations did not contain any exception, as time is not of the essence of the offense; and also for the reason that the effect of the demurrer, if sustained, would be, to preclude the prosecutor from giving evidence, as he would have a right to do under the general issue, to show that the offense was committed within two years next before the indictment was found and filed."

It is contended that the grand jurors found by their return that the offense was committed on October 18, 1917, more than two years before they acted on the bill. This is an inference not supported by the law or the facts. We must assume that they knew the law, that they could hear evidence as to any intercourse with the girl within two years prior to their action. We must also assume that she testified to the occurrences as she narrated them before the magistrate and the Court. We cannot assume that she is untruthful.

Nor was the defendant prejudiced by our ruling that evidence could be offered before the jury of illicit intercourse on

Commonwealth v. Frye

November 20, 1917. He was at the hearing before the justice of the peace, and the girl there testified that the last intercourse took place in November. He was not taken by surprise.

The defendant had a fair trial. He did not see fit to deny any of the serious charges preferred against him. He called no witnesses. He succeeded in concealing his criminal acts, and the delay in bringing him to justice was due to his own misconduct in prevailing upon the young girl to keep the truth from her father.

The jury was carefully instructed that there could be no conviction unless the adultery occurred within two years prior to the finding of the bill.

Technical pleading, and technical errors that do not affect the merits of a case are discouraged in the criminal courts, more and more, as the years advance: 14 R. C. L., page 172, Sect. 21. If a slip in the district attorney's office, of the character here disclosed, can afford a loop hole of escape to one who has so griveously offended against the law, and who has ruined a young girl entrusted to his care, supervision, and protection, then the public will justly lose respect for the administration of the criminal law.

We allowed the district attorney to amend the bill by changing the date of the intercourse as of November 20, 1917, instead of October 18, 1917. Under the foregoing opinions the amendment was not necessary, as we could hear proofs, if we are correct, relating to that date, and the amendment did not prejudice the defendant in any of his rights.

And now, February 20, 1920, the motion in arrest of judgment is overruled.

Court of Common Pleas of Montgomery County

Tinkler v. Tinkler

Libellant brought an action of divorce against his wife, the Respondent on the ground of desertion fixing a certain date, a master was appointed and in due process of time, hearing was had. The time alleged for the actual desertion was not supported by the evidence a later date was established, a meeting was called to take testimony in conformity with the later date, but the evidence shows that the actual desertion did not take place either at the time alleged in the libel or at the time set forth in the report of the master. The allegata and probata do not agree, therefore the libel must be amended to conform to the testimony.

No. 142, November Term, 1919.

Divorce.

Conrad S. Sheive, Attorney for Libellant.
Opinion by Swartz, P. J., Oct. 15, 1920.

The application of the libellant, for a subpoena sur divorce, alleges that the wife's desertion took place on the 9th day of April, 1918, and that she "continued in said desertion for a period of two years and upwards, to wit:-from the date of the said wilful, and malicious desertion, April 9, 1918."

The libel was filed on January 27, 1920. There was personal service on the respondent, but no appearance on her behalf. The Master was appointed on March 22, 1920.

He called a meeting for the 19th day of April, 1920. Testimony was taken upon said day in support of the application. The respondent did not appear.

The testimony taken before the master disclosed that the parties lived together until May 9, 1918. It thus appeared that the meeting before the Master was premature, because no desertion for two years could be established.

A subsequent meeting was called for May 24, 1920. At this meeting the witnesses were resworn and testified to the same facts related by them at the prior meeting, and added that the desertion continued to the said 24th day of May, 1920.

As we read the depositions it is not clear that the wilful and malicious desertion began before June 1918.

VOL. XXXVI-No. 44

Tinkler v. Tinkler.

On May 9, 1918, the husband asked the wife to leave her parents and join him in a new home that he had provided. Up to this time the parties had resided with the parents of the respondent in Norristown. She declined to go, giving as a reason that the home was too distant from the central part of the borough. Of course it was her duty to move to the new home, even if the location of the house did not suit her.

The husband tried to humor her. After a consultation, about the beginning of June, 1918, she agreed to go with him to select an apartment in Philadelphia. She joined him in finding suitable rooms. They selected the apartment and he leased the same. She was satisfied and agreed to meet him next morning to purchase furniture for the rooms. She promised to live with him and "everything seemed all right." They had met in the office of the libellant's attorney early in June "to effect a reconciliation." They came to a full understanding to live together and each took active steps to carry out their common purpose. There is nothing in the evidence before us to show that the wife acted in bad faith when she met her husband in the office of the attorney or when she joined him in selecting a residence in Phila. delphia. On their return home there was harmony and a perfect understanding that on the next morning they would meet and again go to the city to buy furniture and to perfect their arrange ments to occupy the apartments. She failed to meet her hus band, in accordance with the appointment. No explanation was given by her, but the evidence indicates that she may have been encouraged by her parents to change her mind. If there was wilful and malicious desertion on May 9, 1918, which is not clear, it is evident such intent to desert did not continue to exist when they met in the office of the attorney and went to Philadelphia to select a new home.

When she refused to join the husband in the Norristown house, there was no declaration on the part of the husband that he would not respect her objection to the location or that he would not seek a home more acceptable to her. His subsequent action shows that he did not insist that she must come to this house or that her failure to do so would be regarded by him as desertion on her part.

The wilful and malicious desertion, if any, was not contin

uous from May 9, 1918.

Tinkler v. Tinkler.

It did not begin until June 1918. Even if there was desertion on May 9th, the wife came to the husband in the beginning of June, and offered to live with him. He accepted her terms and both acted thereon, until the wife finally deserted her husband by refusing to join him in the new home selected by both.

"Desertion begins with the intent to desert and to make such desertion permanent." Henderson vs. Henderson, 35 Pa., Superior Ct., 629.

The fully formed intent to make the desertion permanent did not begin before June 1918. Between May 9 and the latter date there was a vacillation and her fully formed intent to desert did not exist before the beginning of June.

The libel declares that the desertion began on April 9, 1918. This specific date is repeated in the petition. There is no allegation that the desertion began on or about that date.

The allegata and probata do not agree, and the libel should be amended by stating the correct date disclosed by the testimony: Mann vs. Mann, 32 Montg., L. R., 165 and cases there cited. There is no difficulty in making the correction. The respondent lives in Norristown, and no doubt personal service can be made upon her if we enter a rule to show cause why the amendment should not be allowed.

We repeat, that all doubt will be removed, if the day is named upon which the respondent refused to carry out her promise to live with her husband, in Philadelphia. If the day can not be accurately ascertained, it will be sufficient to allege that the desertion began about the beginning of the month of June, 1918.

And now, October 1920, the report is referred back to the Master so that the libellant may take such further steps as he may deem proper under the foregoing opinion and suggestions.