Sherban v. Commonwealth

Supreme Court of Pennsylvania

Sherban v. Commonwealth

34 Am. Dec. 460, 8 Watts 212

CourtSupreme Court of Pennsylvania

DecidedMay 15, 1839

StatusPublished

Cited by9 cases

This text of 34 Am. Dec. 460 (Sherban v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherban v. Commonwealth, 34 Am. Dec. 460, 8 Watts 212 (Pa. 1839).

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Opinion

The opinion of the Court was delivered by

Sergeant, J.

It is a general rule that, in all indictments, the charge must be positively averred; but in what cases it is or is not sufficiently averred, is not ascertained with precision, and must be left, in a great measure, to the legal discretion of the court. 2 Hawk. P. C. 228. Indictments require only the same certainty as declarations, namely, certainty to a common intent in general, and Hot certainty in every particular as is required in pleading an estoppel. Co. Lit. 303; 2 Str. 904; 1 Chitt. Cr. Law, 169. It is a rule that that which is apparent to the court, and appears from a necessary implication, need not be averred. 4 Bac. M. 322. It is sufficient in- indictments, that the charge be stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the proper judgment, thereon. Over nice exceptions are not to be encouraged, especially in cases which do not touch the life of the defendant. 1 Chitt. Crim. Law, 170, 221; 2 Hale 178. The objection is, that the indictment does riot aver that there was an election for governor about to be held in October 1838; but it avers that the defendant made a bet dependent on an election for governor, to be held in October 1838. We think the fair implication is, not only that such bet was made, but that the election [214]*214was to be held at that time, and.that the commonwealth would be bound in this charge to prove both these facts.

Judgment affirmed.

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The opinion of the Court was delivered by

Sergeant, J.

It is a general rule that, in all indictments, the charge must be positively averred; but in what cases it is or is not sufficiently averred, is not ascertained with precision, and must be left, in a great measure, to the legal discretion of the court. 2 Hawk. P. C. 228. Indictments require only the same certainty as declarations, namely, certainty to a common intent in general, and Hot certainty in every particular as is required in pleading an estoppel. Co. Lit. 303; 2 Str. 904; 1 Chitt. Cr. Law, 169. It is a rule that that which is apparent to the court, and appears from a necessary implication, need not be averred. 4 Bac. M. 322. It is sufficient in- indictments, that the charge be stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the proper judgment, thereon. Over nice exceptions are not to be encouraged, especially in cases which do not touch the life of the defendant. 1 Chitt. Crim. Law, 170, 221; 2 Hale 178. The objection is, that the indictment does riot aver that there was an election for governor about to be held in October 1838; but it avers that the defendant made a bet dependent on an election for governor, to be held in October 1838. We think the fair implication is, not only that such bet was made, but that the election [214]*214was to be held at that time, and.that the commonwealth would be bound in this charge to prove both these facts.

Judgment affirmed.

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Bluebook (online)

34 Am. Dec. 460, 8 Watts 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherban-v-commonwealth-pa-1839.

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