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COMMONWEALTH v. COOK (09/12/61)

September 12, 1961

COMMONWEALTH
v.
COOK, APPELLANT.



Appeal, No. 3, March T., 1962, from judgment of sentence of Court of Quarter Sessions of York County, Jan. T., 1960, No. 171, in case of Commonwealth v. Edward W. Cook. Judgment of sentence reversed.

COUNSEL

Victor Dell'Alba, with him Bergdoll, Dell'Alba & Noll, for appellant.

Jesse L. Crabbs, Assistant District Attorney, with him Frank B. Boyle, District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 196 Pa. Super. Page 50]

OPINION BY ERVIN, J.

The defendant, Edward W. Cook, appealed after sentence was imposed upon an indictment which charged that he "did unlawfully, wilfully, maliciously, fraudulently and falsely, deface and alter certain information on a certain motor vehicle title which was being transferred to one Paul S. Shaffer. ..." On the back of the indictment were the words "Defacing the Records." After a jury had been sworn, the defendant moved to quash the indictment for the reason that it was apparent that the Commonwealth could not offer any proof that the document in question was in the possession of any public office. The motion was denied. This was a correct ruling because the body of the indictment controls and not what is written on the back thereof.

[ 196 Pa. Super. Page 51]

The body of the indictment was sufficient to sustain the charge under the Act of May 1, 1929, P.L. 905, § 211, as amended by the Act of June 29, 1937, P.L. 2329, § 1, 75 PS § 41 (which act was substantially reenacted by the Vehicle Code of 1959, 75 PS § 211), and was also sufficient to sustain the charge of the crime of forgery as set forth in the Act of June 24, 1939, P.L. 872, § 1014, 18 PS § 5014. Furthermore, the motion came too late: Act of March 31, 1860, P.L. 427, § 11, 19 PS § 431; Com v. Shrodes, 158 Pa. Superior Ct. 135, 44 A.2d 319.

The defendant next argues that the court below erred in amending the indictment to conform with the violation under The Vehicle Code. The answer to this argument is that so far as the record reveals the court did not amend the indictment. It was not necessary for the court to amend the body of the indictment for the trial of either of the two crimes mentioned above.

The defendant then argues that the court below committed error in refusing to sustain the demurrer which was made at the end of the Commonwealth's case, or erred in overruling defendant's motion for new trial or erred in overruling defendant's motion in arrest of judgment. The reasons advanced to sustain these three questions are the same and will be considered together.

We are of the opinion that the evidence as presented was not sufficient to sustain a conviction under The Vehicle Code. The Act of 1929, as amended (referred to above), which was applicable to this situation, provided: "Any person who shall be convicted of any of the following offenses shall be guilty of a felony ... (a) Altering or forging any certificate of title to a motor vehicle ... or any assignment thereof. ..." The evidence in this case does not show any ...


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