Commonwealth v. Keresty

54 Pa. D. & C. 353, 1945 Pa. Dist. & Cnty. Dec. LEXIS 105

Opinion

McCreary, J.,

The indictment in the above stated case charges defendant with the fraudulent removal of an automobile under the provisions of section 848 of The Penal Code of June 24,1939, P. L. 872. The indictment charges that defendant, Arthur Keresty, did “unlawfully and surreptitiously remove, or cause to be removed, one motor vehicle, to wit, a truck, from the premises of Bob Stout’s Garage, situate at 352 Maine Avenue, in the Borough of Rochester in said county, with intent to defraud.” A motion to quash is made by defendant, before a jury is sworn, on two grounds — that the indictment does not charge that the automobile in question was placed in Bob Stout’s Garage or automobile shop “for storage, repairing or garage service”; and fails to allege the charge that the said motor vehicle was surreptitiously removed or caused to be removed by the defendant “by any false pretension or device”, and in failing to charge what the false pretension or device was, if any.

The act of assembly on which the indictment is based reads as follows:

“Whoever places in any garage or automobile shop any automobile, for storage, repairing, or garage service, and surreptitiously removes or causes it to be removed, by any false pretension or device, with intent to defraud, is guilty of a misdemeanor, and upon conviction, shall be sentenced to pay a fine of not more than one hundred dollars ($100), or undergo imprisonment not exceeding three months, or both.”

The motion must be granted because the indictment is not drawn in the words of the statute, and because it is defective in the respects concerning which complaint is made. In any indictment charging a person with obtaining property by false pretense it is requisite that the false pretenses on which the Commonwealth intends to rely be set forth in the indictment. The indictment in the case at bar does not even allege that the automobile was obtained by any false pretense: Commonwealth v. Frey, 50 Pa. 245; Commonwealth v. Sherwin et al., 15 D. & C. 436.

Order

Now, to wit, March 14,1945, it is hereby ordered, adjudged and decreed that the indictment in the above stated case be and the same hereby is quashed.