AND IMVf BOOKS NEWfjtK yy. »/. KfP Si^^^Ji Cornell University Library KFP 575.S126 Crimna and penal procedure In Pennsylv 3 1924 024 703 658 ajflrn^U IGam Bciiuni Hibrarg Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024703658 CBIMINAL AND PENAL PEOOEDUEE — IN — PENNSYLVANIA By SYLVESTER B. SADLER, A. M., LL. B. Frofessoi of Criminal Law in the Dickinson School of Law. THE LAWYERS' CO OPERATIVE PUBLISHING CO, Rochester, N. Y. 1903. 13573 Entered accordingr to Act of Congress, in the year nineteen hundred three, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the OfSce of the Librarian of Congress, at Washington, D. C. E. R. Andrews Pbintinq Company, Rochester, N. Y. PEEFAOE. The purpose of this work is to embody in systematic form all the statutory and decisional law of Pennsylvania, pertaining to the subject of procedure and practice in criminal and quasi-criminal cases. The absence of any book covering this field has made such a work seem opportune. An inspection of the Table of Contents will suggest the interesting and important topics embraced within its compass. Not omitting the law pertaining to the offers of rewards for the arrest and conviction of criminals, the book undertakes to trace all the stages of a prosecution, from the initial information to the execution of the sentence of the trial court. Nor has the law pertaining to collateral incidents of prosecution — e.g., that touching habeas corpus proceed- ings, and costs — been neglected. Besides criminal procedure, strictly so called, the law pertaining to summary convictions and to actions for penalties, whether founded on statutes or on municipal ordinances, has been fully set forth. A collection of appropriate forms has been added. The author cordially acknowledges the assistance rendered in the preparation of this work by Hon. Wilbur F. Sadler, whose experience for many years as Judge of the Ninth Judicial District, and as a practitioner, has especially qualified him to aid in matters of practice. In the belief that a more systematic and complete view of the Law of Criminal Procedure in Pennsylvania wiU be found in this book than is elsewhere accessible, the author submits it to the indulgent judgment of the profession. TO UT BELOVED FRIEND WILLIAM TKICKETT, LL.D., SliiAN OF THE DICKINSON SCHOOL OF LAW, la EUINENt LAWTEB, A PROFOUND SCHOLAR, AND A DISTINOmSHBD AUTHOR, TmS BOOK IS UBSPECTFULLT DEDICATED. TABLE OF CONTENTS. OHAPTEE I. REDRESS rOR CRIMINAL ACTS. 1. Concurrence of civil and criminal proceedings, 99. 2. In special cases, 99. 3. Effect of concurrence as to trial, 100. 4. Trial for perjury conunitted in pending civil actions, lOO. 5. Where a statutory remedy is provided, 101. CHAPTEE 11. JURISDICTION. 6. Generally, 102. 7. Conferring by consent, 103. S. Effect where no jurisdiction exists, 104. 9. Jurisdiction of Federal courts, 104. 10. Conflict of jurisdiction between Federal and state courts, 106. 11. Effect of wrongly indicting in state court, 107. 12. Jurisdiction of state courts; supreme and superior, 107. 13. Certiorari to remove pending indictments, 107. 14. Nisi priuB, 108. 15. Ex officio judges of lower courts, IDS. 16. Habeas corpus, 108. 17. Peace officers, 108. 18. Superior court, 108. 19. Oyer and terminer, 108. 20. The courts of quarter sessions, 110. 21. Power of judges of oyer and terminer and quarter sessions, 112, 22. Surety of peace, 113. 23. Jurisdiction of particular statutory offenses, 113. 24. Effect of indictment in \7r0ng court, 114. 25. Certification of indictment from quarter sessions to oyer and terminer, 114. 26. Certification from oyer and terminer or quarter sessions to common pleas, 115. 27. Appellate jurisdiction of the quarter sessions, 115, 28. Juvenile courts, 115. 29. Coroners' courts, 116. 30. Justice as coroner, 117. 31. Justices of the peace, 117. 6 6 Table op Contents. 32. — jurisdiction of penal actions under statute, 118. 33. of penal actions under ordinances, 119. 34. of surety of the peace, 120. 35. of forcible entry and detainer, 120. 36. of two magistrates, 120. 37. Magistrate courts — in cities of the first class, 120. 38. Jurisdiction in cities of the second class, 121, 39. Jurisdiction in cities of the third class, 123. 40. Jurisdiction of burgesses in boroughs, 123. 41. — courts-martial, 123. CHAPTEK III. JURISDICTION AS DETERMINED BY LOCALITY OF CRIMa 42. Generally, 124. 43. Treason against the state, 125. 44. Crimes committed by accessories to felonies, 125. 44a. Crimes committed by accessories to misdemeanors, 126. 45. Crimes committed near boundary lines, 126. 4C. Crimes committed on journeys, 126. 47. Offense begun in one county and completed In another, 127. 48. Homicide, where death occurs without the state, 128. 49. Offenses committed on boundary waters, 129. a. On the Delaware, 129. &. On foreign vessels on the Delaware, 129. c. On the Monongahela, 130. d. On Lake Erie, 130. 50. Bigamy, 130. 51. Larceny, 130. 52. Receiving stolen goods, 130. 53. False pretenses, 131. 54. Forgery, 131. 55. Conspiracy, 131. 56. Libel, 132. 67. Fornication and bastardy, 132. 58. Taking females for intercourse, 133. 59. Desertion, 134. 60. Locality of crime against the United States, 134. CHAPTEK IV. ARREST. 61. Process, 136. 62. The information, 136. 63. By whom made, 137. 64. Swearing to, 137. 65. Charging offense, 137. 60. The warrant, 138. 67. By whom issued, 138. Table of Contents. 08. Bench warrants, 139. 69. Where prisoner' charged with felony is in another county, 139. 70. Where prisoner charged with misdemeanor in another county, 140, 71. To whom directed, 141. 72. Bequisites of warrant, 142. a. In whose name, 142. b. Description of offense, 142. c. Description of person, 142. d. Seal, 142. 73. Alias warrant, 142. 74. Issuing and executing the warrant, 142. 75. Arrest with warrant, 144. 76. Bight to break in doors, 144. li. By officer, 144. b. By citizen, 145. 77. Eight to kill in arrestin:g, 145. a. By officer, 145. 6. By citizen, 145. 78. Arrest without warrant by officer, 146. a. For felonies, 146. 6. For misdemeanors, 147. c. For violation of ordinances, 147. d. Under special statutes, 148. 79. Arrest without warrant by individual, 149. o. For felony, 149. h. For misdemeanor, 150. SO. Disposition of prisoner when arrested without warrant, 15(V 81. Exemption from arrest, 151. a. Members of legislature, 151. 6. Electors, 151. c. Election officers, 151. d. Sunday, 151. e. Pendency of civil proceedings, 152. 82. Waiver of irregularities, 152. 83. Search warrants, 152. 84. Posse oomiiatus, 153. 85. Hue and cry, 155. 86. Rewards for arrests, 155. 87. Rewards for apprehending horse thieves, 156. 88. Proceedings to recover, 157. CHAPTEK V. FUGITIVES FROM JUSTICE. 89. Fugitives from justice in another county of the state, 153. 90. Outlawry, 158. 91. International extradition, 159. 92. Interstate extradition, 159. 93. Application for requisition, 160. 8 Table or Contentb. 04. Requisites of governor's warrant, 163. 95. Proceedings on warrant and hearings 163. 90. OfiToises for which granted, 164. 97. Who are fugitives, 165. 08. Arrest pending papers, 165. 99. Disposition of prisoner where trial shows offense committed in another state, 165. 100. Effect of enticing prisoner within the state, 166. 101. Effect on prisoner of extradition, 166. 102. Costs in extradition proceedings, 167. CHAPTEE VI. HEARINGS BEFORE JUSTICEa 103. The preliminary hearing, 169. 104. Time of examination, 170. 105. Conduct of hearing, 170. lOli. Decision of magistrate, 172. 107. Waiver of hearing, 172. 108. Property found on prisoner, 173. 109. Imprisonment of witnesses, 173. 110. Tlie return, 174. 111. Contents of return, 175. 112. Trial of crimes by jury before justices, 178. 113. For what crimes, 176. 114. The information, 177. 115. Pleas, 17S. lie. The jury, 179. 117. Manner of procedure, 180. 118. Verdict, 180. 119. Sentence, 180. 120. Review of proceedings, 180. o. Certiorari, 180. 6. Appeal, 181. 121. Effect of reversal, 181. 122. Effect of acquittal, 182. 123. Costs, 182. CHAPTEE VIL BAIL. 124. Constitutional provisions, 184. 125. By whom taken, 185. a. Statutory provisions, 185. h. By appellate courts, 185. c. By lower courts, 186. d. By committing magistrates, 186. e. By ministerial offlcerB, 187. 12G. In homicide cases, 187. Table of CoNTENia. 127. Proceedings to admit to bail, 188. 128. The recognizance, 188. 129. The return, 189. 130. Rights of sureties, 189. 131. Liability of surety, 190. 132. Release of surety, 191. 133. Liability of surety in desertion proceedings, 191. 134. Liability of counter security, 192. 135. Forfeiture of recognizance, 192. 130. Forfeiture in desertion proceedings, 193. 137. Jurisdiction of courts in proceedings on, 193. 138. In Philadelphia, Allegheny, and Erie counties, 194 139. Form of action, 194. 140. Who may sue, 194. 141. Averments in action of assumpsit, 195. 142. Affidavits of defense, 195. 143. Evidence, 197. 144. Judgment, 197. 145. Execution, 197. 146. Remission of forfeiture, 198. 147. When granted, 198. 148. When refused, 199. 149. Who may remit, 199. a. The governor, 199. h. The court, 200. 150. Time of application, 200. 151. Distribution of proceeds, 201. 152. Review of proceedings, 203. CHAPTEE VIII. HABEAS CORPUS, 153. Generally, 205. 154. Federal courts, 206. 155. Conflicting jurisdiction of state and Federal courts, 208. a. Release from state custody by Federal courts, 206. 6. Release from Federal custody by state courts, 207. c. Concurrent jurisdiction, 208. 150. State courts, 209. a. Appellate courts, 209. 6. Lower courts, 210. 157. Jurisdiction where detained by another court, 210, a. Of concurrent jurisdiction, 210. 6. By a lower court, 210. c. By governor's warrant, 212. 158. In what matters granted, 212. 159. On whose application granted, 214. 160. The petition, 215. 161. Illegal confinement, 216. 162. Issuance of the writ, 217. )0 Table of Contents. 163. The return, 217. 164. Effect of pendency of writ, 219. Ifio. The hearing, 219. 16(i. Issue to try facts, 222. 167. The order, 222. 168. Effect of discharge, 222. 169. Review of proceedings, 223. 170. Habeas corpus and certiorari as ancillary writs, 224. 171. Common-law writs of habeas corpus, 225. 172. Suspension of the writ, 225. 173. Costs, 226. CHAPTEE IX. MODE OF ACCUSATION. 174. Criminal information, 227. 175. Indictment in general, 228. 176. Based on returns of ma^strates, 229. 177. Based on coroner's returns, 229. 178. Based on constables' returns, 229. 179. Conformity of indictment with the return, 231. 180. When sustained, 232. 181. When quashed, 233. 182. Effect of variance, 234. 183. Effect of permission of court, 234. 184. Based on presentments of grand jury as to matters given it in charge by the court, 235. 185. Based on presentments of grand jury as to matters within their own knowl edge, 236. 186. Preferred by district attorney without previous binding over, 237. 187. Supervision of court, 239. 188. Review of court's action, 240. CHAPTER X. GRAND JURY. 189. Summoning, 241. 190. Number of grand jurors, 242. 191. The foreman, 243. 192. Swearing the jury, 243. 193. Charge of court, 244. 194. Conduct of proceedings, 244. 195. Examination of witnesses, 245. 196. Indorsements on bill, 246. 197. The finding, 247. 198. Record of finding, 247. 199. Recommitment of bill for correction, 248. 200. Investigation of proceedings, 248. 201. Interference with grand jury, 248. Table op Contents. <1 CHAPTER XL THE INDICTMENT. 202. The caption, 250. 203. The commencement, 251. 204. Laying time, 252. 205. As to the statute of limitations, 253. 206. Laying venue, 254. 207. Names, 254. 208. Titles and residence, 256. 209. Description of property, 257. 210. Description of writings, 258. 211. Statement of the oflfense, 258. 212. Certainty and sufficiency in statutory offenses, 260. 213. Negativing exceptions in a statute, 261. 214. Meaning and use of words, 261. 215. Use of the videlicet or scilicet, 262. 216. Surplusage and repugnancy, 263. 217. Duplicity, 263. 218. Where second offense not well charged, 264. 219. Where statute provides for distinct acts, 264. 220. MTiere several acts done at one time, 265. 221. Matters of aggravation, 265. 222. Words of description, 266. 223. How taken advantage of, 266. 224. Conclusion, 266. 225. Eeference from one count to another, 267. 226. Joinder of counts; different offenses, 263. 227. Joinder of counts; cognate offenses, 268. 228. Included offenses, 270. 229. Election, 271. 230. Joinder of parties, 271. 231. Effect of misjoinder, 272. 232. Joint aad separate trials, 272. CHAPTEE XII. INDICTMENTS FOE PARTICULAR OFFENSE& 233. Abandonment, 274. 234. Abortion, 275. 235. Adultery, 275. 236. Arson, 276. 237. Assault and battery, 277. 238. Attempts, 277. 239. Bawdy houses, 278. 240. Blackmail, 278. 241. Blasphemy and profanity, 278. 242. Bribery, 278. 243. Burglary and housebreaking, 278. 13 Table of Contents. 244. Carrying concealed deadly weapons, 279. 245. Concealing deatli of a bastard, 279. 246. Contempt, 279. 247. Conspiracy, 280. 248. Counterfeiting, 281. 249. Cruelty to animals, 282. 250. Disorderly houses, 282. 251. Disturbing public meetings, 282. 252. Dueling, 283. 253. Elections, 283. 254. Embezzlement, 284. 255. Escape, 286. 256. False pretenses, 286. 257. Forcible entry and detainer, 288, 258. Forgery, 289. 259. Fornication and bastardy, 291. CHAPTEE XIII. INDICTMENTS FOR PARTICULAR OFFENSES— CONTINUED. 260. Frauds, 293. 261. Gambling, 294. 262. Game, 294. 263. Hawking and peddling, 294. 264. Homicide, 295. 265. Involuntary manslaughter, 297. 266. Indecent exposure, 297. 267. Kidnapping, 297. 268. Labor laws, 297. 269. Larceny, 297. 270. Larceny by bailee, 299, 271. Larceny by clerk, 299. 272. Larceny from person, 299. 273. Libel, 299. 274. Liquor laws, 301. 275. Lotteries, 302. 276. Malicious mischief, 302. 277. Mayhem, 302. 278. Mutilation of bills, 303. 279. Negligence or misconduct of railroad employees, 303. 280. Nuisance, 303. 281. Obscenity, 304. 282. Obstructing justice, 305. 283. Official misconduct, 306. 284. Perjury, 307. 285. Pure food laws, 309, 286. Rape, 309. 287. Receiving stolen goods, 310. 288. Robbery, 310. Tabus of Contekis. I.S 289. Seduction, 311. 290. Threatening letters, 31 K 291. Violating regulations, 311. CHAPTEE XIV. OBJECTIONS TO INDICTMENTS. 292. Time to make, 312. 293. Demurrer, 314. 294. Motion to quash, 315. 295. For matters not of record, 315. 296. Where no preliminary examination, 316. 297. For defects in inforuuition or transcript, 316. 298. For errors in grand jury, 316. 299. For matters of defense, or amendable, 317. 300. Where offense barred, 318. 301. Where other proceedings pending, 318. 302. Pendency of another indictment, 313. 303. Where first bill lost, 318. 304. Where bill found at wrong court, 319. 305. Effect of quashing and review, 319. 306. Effect of repeal of statute, 319. 307. Variance as to place, 320. 308. Variance as to time, 320. 309. Variance as to name, 321. 310. Variance in description of property, 321. 310a. Variance in description of writings, 321. 311. Variance in statement of offense, 322. 312. Variance between information and indictment, 32& 313. Amendments, 322. 314. — of caption, 323. 315. — of venue and time, 324. 316. — of names, 324. 317. — of statement of offense, 325. 318. — of defects of substance, 325. 319. — of joinder of parties, 325. 320. Bill of particulars, 325. ( 321. When refused, 320. 322. When granted, 326. 323. Contents, 327. 324. Effect of, 327. 325. Amendment of, 327. 326. Service of copy of indictment, 327. CHAPTEE XV. ARRAIGNMENT AND ISSUE. 827. Arraignment, 329. 14 Table ok Contbhts. 328. When plea entered, 330. 329. Plea of guilty, 330. 330. Plea of not guilty, 330. 331. Effect of entry, 330. 332. Standing mute, 331. 333. Where defendant is corporation, 331. 334. Plea of nolo contendere, 332. 335. Plea of former acquittal, 332. S3t). What constitutes acquittal, 333. 337. Effect of partial acquittal, 333. 338. Identity of offense, 334. 339. Acquittal of greater offense, 335. 340. Acquittal of lesser offense, 335. 341. Sufficiency of first indictment, 335. 342. Plea of former conviction, 336. 343. Identity of offense, 336. 344. Conviction of greater or lesser offense, 336. 345. Sufficiency of first indictment, 336. 340. Review of court's action, 336. 347. Former jeopardy, 337. 348. Flea of statute of limitations, 338. 349. Plea of pardon, 339. 350. Flea in abatement, 339. CHAPTEE XVI. LIMITATION AND SETTLEMENT OF FROSECUTIONB. 351. Limitation of prosecutions generally, 340. 352. In election offenses, 341. 353. In nuisance, 341. 354. Embezzlement by tax collectors, 342. 355. In forgery, 342. 350. Officers of banks or corporations, 342. 357. Embezzlement by trustees, 343. 358. Penal actions, 343. 359. In desertion, 343. 360. Exceptions to the operation of the statute, 343. 361. Pleading the exception, 345. 362. Computing the period, 345. 363. Change of statutory period, 346. 364. How taken advantage of, 346. 365. Settlement of cases, 346. 366. Assault and battery, 347. 367. False pretenses, 347. 368. Libel, 348. 369. Embezzlement and conspiracy to defraud, 348. 370. Fornication and bastardy, 348. 371. Fraudulent removal of goods, 349. 372. Jtelonies and infamous crimes, 350. Tabuc or Contents- 19 373. Effect of settlement, 350. 374. Nolle prosequi, 350. 375. When entered, 350. 376. Effect of, 351. 377. Costs; when entered, 351. CHAPTER XVII, TRIAL, 378. Before regular judges, 352. 379. Before judges specially presiding, 353. 380. Regular sessions, 355. 381. Special courts, 355. 382. Continued courts, 356. 383. Joint and separate trials, 357. 384. Principals and accessories in felonies, 357. 385. Principals and accessories in misdemeanors, 358. 386. Consolidation of indictments, 359. 387. Continuance of trial, 359. 388. Two-term rule, 360. 389. When applied, 361. 390. In fraudulent insolvency, 362. 391. Effect of discharge, 363. 392. Review of proceedings, 363. 393. Change of venue, 363. 394. Application for, 363. 395. Proceedings; when granted, 36%. 396. Disposition of prisoner, 364. 397. Removal of indictments to supreme court, 365. 398. Insanity at arraignment, 365. CHAPTEE XVIIL JURIES. 399. Jury commissioners, 367. 400. Meeting of board, 368. 401. Filing oath, 369. 402. Oath of ofScers selecting names, 369. <03. Selection of names, 370. 404. Who may be chosen, 371. 404a. Exemption from jury service, 371. 405. Number to be chosen, 372. 406. Time of choosing, 372. 407. Removing old names, 373. 408. Filling the wheel, 374. 409. Certifying list, 374. 410. Sealing and custody of the wheel and key, 375b 411. Penalty for failure to seal and lock, 376. 412. Opening the wheel, 377. 16 Taklb otr Co^iiMS- 413. ^ Drawing juries from the wheel, 377. 414. Where persons dead or removed, 378. 415. Order of drawing, 379. 41G. Lists of those drawn, 379. 417. Jury process, 379. 418. Direction and execution of writ, 381. 419. Summoning jurors, 381, 420. In Philadelphia, 382. 421. -Where sheriff disqualified, 382. 422. The return, 383. 423. Swearing to, 384. 424. Number to be summoned, 384. 425. Histalce in names of those summoned, 3SX 426. Waiver of defects, 386. 427. Talesmen, 387. 428. When ordered, 388. 429. To whom issued, 388. 430. Who summoned, 389. 431. Number summoned, 389. 432. Talesmen in Philadelphia, 389. CHAPTEK XIX. JURIES— CONTINUED: 433. Impaneling jury, 391. 434. Swearing jury, 392. 435. Excusing jurors, 393. 436. Challenges to the array, 394. 437. Peremptory challenges under act of 1860, 394. 438. Peremptory challenges under act of 1901, 395. 439. Challenges for cause, 396. 440. Determination of challenge for cause, 397. 441. Examination on voir dire, 397. 442. Opinions, 398. 443. Conscientious scruples, 400. 444. Scruples against circumstantial evidence, 40L 445. Scruples against insanity, 401. 446. Interest or relationship, 401. 447. Serving two successive years, 402. 448. Illiteracy, 402. 449. Insanity, 402. 450. Nonresidence, 402. 451. Alienage, 403. 452. Taxpayers, 403. 453. EeligiouB belief, 403. 454. Proof of incompetency, 403. 455. Waiver of right to challenge, 403. 456. Effect of refusal, 404. 467. Standing aside jurors, 404. Table of Contents. 17 458. Separation of jury in capital cases, 404. 459. Separation of jury in noncapital cases, 405. 460. Misconduct of jury, 406. 4G1. How misconduct proved, 407. 402. Personation of jurors, 408. 403. Intermeddling with jury by party, 408. 464. Polling the jury, 409. 465. View by jury, 409. 466. Trial by less than twelve, 410. 467. Jury de medietate linguw, 410. CHAPTEE XX. CONDUCT OF TRIAL. 468. Publicity, 411. 469. Presence of accused at trial, 411. 470. Presence of accused at sentence, 412. 471. Restraint of accused, 413. 472. Presence of judge, 413. 473. Presence of witnesses, 414. 474. Coucsel for commonwealth, 415. 475. Counsel for defendant, 416. 476. Admissions by counsel, 417. 477. Conduct of proceedings, 417. 478. Stenographers, 417. 479. Interpreters, 418. 480. Order of testimony, 418. 481. Cross-examination, 419. 482. Rebuttal, 420. 483. Sur-rebuttal, 420. 484. Duty to call witnesses, 420. 485. Control of court over addresses of counsel, 421. 486. Opening addresses, 421. 487. Closing addresses, 422. 488. Improper remarks of counsel during trial, 423. 489. Sending out papers with jury, 424. OHAPTEE XXI. CHARGE OP THE COURT. 490. Manner of charging, 425. 491. What jury is to pass on, 425. 492. Expression of opinion, 426. 493. Binding instructions, 427. 494. Misleading instructions, 428. 495. Instructions not misleading, 428. 496. Points and answers, 429. 497. Omission to charge, 430. 498. Error in charge cured, 432. Pa. Crim. Proc. — 2. 18 Table of Contents, 499. How advantage taken of errors in charge, 432. 500. Filing charge and points, 433. CH^iPTER XXII. VERDICT. 501. General verdict, 434. 502. Consistency of verdict, 435. 503. Conviction of attempt, 435. 504. Conviction of constituent oflFense, 436. 505. Where offense is not constituent, 437. 506. Conviction of felony where misdemeanor charged, 437. 507. Degree of guilt, 438. 508. Joint and separate verdicts, 438. 509. Special verdicts, 439. 510. Special findings in verdict, 439. 511. Verdict on separate counts, 440. 512. Receiving and entering verdict, 440 513. Sealed verdicts, 441. 514. Effect of verdict, 441. CHAPTER XXIII. ARREST OF JUDGMENT AND NEW TRIAL. 515. Motion in arrest of judgment, 442. 516. What considered, 442. 517. Grounds of arrest, 443. 518. Review, 443. 61J. Power to grant new trial, 444. 520. Discretion of court, 444. 521. Irregularity of pleadings, 445. 522. Irregularity as to juries, 445. 523. Irregularity in trial, 445. 524. Matters of evidence, 445. 525. Misleading instructions, 446. 526. Verdict against the law, 447. 527. Verdict against the evidence, 447. 528. Uncertainty of verdict, 448. 529. After-discovered testimony, 448. 530. Application for new trial, 450. 531. Argument and determination, 451. 532. Revie.w, 451. 533. Effect of previous motion in arrest of judgment, 451. CHAPTER XXIV. SENTENCE. 534. Passing of sentence, 453. 535. When passed, 453. Table of Contents. 19 536. Presence of accused, 453. 537. Insanity at time of sentence, 453. 538. Separate judgments, 454. 539. What sentence imposed, 454. 540. Statutory offenses, 455. 541. Penitentiaries and jails, 455. 542. Imprisonment in Philadelphia, 456. 543. Imprisonment in Allegheny county, 456. 544. Workhouses, 456. 545. Huntingdon Reformatory, 456. 546. Houses of refuge, 457. 547. House of correction, 460. .548. Commitinent of infants, 460. 549. House of detention, 461. 550. Philadelphia Protectory for Boys, 461. 551. Labor by convicts, 461. 552. Where acquitted because of insanity, 462. 553. Eelease of prisoners acquitted because of insanity, 468. 554. Removal of insane prisoners, 463. 555. Discharge of insane prisoners, 465. 556. Where prisoner about to be discharged is insane, 466. 557. Fines, 406. 558. Extent of the sentence, 467. 659. What is sufficient to sustain sentence, 467. 500. Mitigation of sentence, 467. 501. Suspension of sentence, 467. 562. Amendment of sentence, 468. 503. Recording sentence, 46S. 564. Interpretation, 468. 565. When sentence commences to run, 469. 566. Serving term, 469. 507. Commutation, 469. 5fi8. Unconstitutional punishments, 470. 509. Outlawry and attaint, 470. 570. Sentence of death, 471. 571. Restitution, 472. 572. Abatement of nuisance, 472. 573. Attempts, 473. 574. Liquor offenses, 473. 575. Vagrancy, 473. 576. Misbehavior in office, 473. 577. Second offense, 473. 578. Escape, 474. 579. Accessories, 474. 580. Fomicction and bastardy, 475. 581. Review of sentence, 476. OHAPTEK XXV. APPEALS. 682. Eight to appeal, 477. 20 Table of Contents. 583. Form of writ, 478. 584. Who may appeal, 478. 585. How taken, 479. 586. When taken, and effect, 479. 587. Separate appeals, 480. 688. Where returnable, 480. 589. Time of hearing, 480. 590. Waiver of right to appeal, 480. 591. From what judgments, 480. 592. Paper books, 481. 593. Exceptions, 481. 594. Assignments of error, 482. 595. Matters considered on appeal, 483. 596. Matters considered on certiorari, 484. 597. Matters considered in desertion proceedings, 48& 598. Duty in capital cases, 486. 599. Decision of the court, 486. 600. Remittitur, 487. 601. Eeargument, 487. 602. Costs on appeal, 487. 603. Appeal to the United States Supreme Court, 487. CHAPTEE XXVI. COSTS. 604. Liability of prosecutor, 488. 605. On ignored bills, 489. 606. Imposition by petit jury on prosecutor, 490.. 607. On peace officers, 491. 608. Where district attorney advised, 491. 609. Where indictment defective, 491. 610. Where joint defendants, 491. 611. For what costs, 492. 612. Finding of jury, 492. 613. When liability commences, 492. 614. Liability of defendant for costs, 492. 615. Joint defendants, 493. 616. Where court has no jurisdiction, 493. 617. V^Tiere indictment is defective, 493. 618. Where first indictment quashed, 493. 619. In felonies, 494. 620. Where defendant is indicted in his official capacity, 494, 621. Division between prosecutor and defendant, 494. 622. Sentence of prosecutor or defendant, 495. 623. Liability of county for costs, 495. 624. Discharged cases, 495. 625. Imposition by jury in misdemeanors, 496. 626. Imposition by jury in felonies, 497. 627. Where indictment quashed, 498. C28. Where acquittal by consent, 498. Table of Contents. SI 629. Where acquittaJ and no disposition of costs, 498. 630. When liability commenoes under act of 1887, 498. 631. Under prior acts, 499. 632. Defendant's witnesses, 500. 633. Supervision of court over costs, 500. 634. Reimbursement of county for costs paid, 501. CHAPTEE XXVII. COSTS— CONTINUED. 635. Enforcement of payment, 502. 636. Security to pay, 504. 637. Discharge from the payment of costs under insolvent laws, 604. 638. How applied for, 505. 639. When applied for, 505. 640. Discharge by county commissioners, 506. 641. Costs before justices under the act of 1861, 507. 642. Jn penal actions, 508. 643. In vagrancy, 508. 644. In case of forfeited recognizance, 509. 645. In desertion and surety of the peace, 509. 646. Costs of coroners, 510. 647. Fees recoverable by coroners, 511. 648. Local acts as to coroners, 512. 649. Fees of deputies, 513. 650. Fees of coroner's jury, 513. C51. Fees of coroner's physicians, 514. 652. District attorney, 514. 653. Assistant counsel, 515. 654. Physicians, 516. 655. Clerks, 516. 656. Detectives, 516. 657. Railroad policemen, 516. 658. Boarding jtrry, 516. 659. Boarding prisoners, 516. 660. Costs of serving bench warrants, 517. 661. Costs of extradition, 517. 662. Removing prisoners to penitentiary, 517. 663. Insane criminals, 517. 664. Interpreters, 518. 665. Stenographers, 518. 666. Costs of witnesses, 518. 667. Costs of prosecution chargeable to townships and school districts, 519. 668. Taxation of costs, 520. 669. Reimbursement of county, 520. 670. Payment of costs in certain counties, 521. CHAPTEE XXVIIL PARDON. 671. By the President, 522. 22 Table of Contents. 672. By the governor, 522. 673. Rules of the board of pardons, 522. 674. Sei-vice of sentence, 524. 675. Proof of pardon, 525. 676. Extent of pardon, 525. 677. When effective, 525. 678. Conditional pardon, 525. 679. Effect of fraud, 526. 680. Effect of pardon, 526. 681. Competenc^r of pardoned prisoner as witness, 626. CHAPTER XXIX. DESERTION AND SURETY OF PEACE. 682. Character of proceeding, 528. 683. Proceedings under the act of 1836, 529. 684. Proceedings in quarter sessions under the act of 1836, 530. 685. Right to appeal, 531. 686. Desertion of wife under the act of 1855, 531. 687. Desertion under the act of 1867, 531. 688. Jurisdiction, 531. 689. Bail, 532. 690. Information and return, 532. C91. Statute of limitations, 532. 692. Order for relief, 532. C93. When granted, 532. 694. Modification of order, 533. 695. Security to pay, 533. 696. Enforcement of payment, 534. 697. Discharge of prisoner, 534. 698. Recommitment of prisoner, 534. 699. Second prosecutions, 535. 700. Costs, 535. 701. Appeals, .535. 702. Support of relations, 535. 703. Order for relief, 536. 704. Enforcement of order, 536. 705. Surety of the peace, 530. 706. By whom and when taken, 537. 707. Costs, 537. CHAPTER XXX. PENAL ACTIONS. 70S. Kinds of penal actions, 538. 709. Constitutionality of such actions, 539. 710. Construction of such acts, 539. 710a. Effect on other remedies, 540. Table op Contents. 83 711. Jurisdiction of justices under statutes, 541. 712. Jurisdiction of justices under ordinances, 542. 713. Jurisdiction in cities of the first class, 542. 714. Jurisdiction in cities of the second class, 543. 715. Jurisdiction in cities of the third class and less, 543. 716. Mayor's courts, 543. 717. Jurisdiction of burgess, 543. 718. Jurisdiction of same offenses by different magistrates, 544. 719. Qualification of judicial officer, 544. 720. Party plaintifl' under statutes, 545. 721. Party plaintifi' in actions on ordinances, 545. 722. Institution of summary proceedings, 546. 723. Institution of proceedings on ordinances, 547. 724. Process in summary proceedings, 547. 725. Process in proceedings on ordinances, 548. 726. Efi'ect of appearance, 548. 727. Arrest without warrant, 548. 728. Joinder of defendants and offenses under ordinances, 549, 729. Joinder of oflfenses under statutes, 550. 730. Presence of defendant, 550. 731. Right to be heard, 550. CHAPTEE XXXI. PENAL ACTIONS— CONTINUED. OFFENSES UNDER STATUTES. 732. Disturbing religious meetings, 551. 733. Fish and game laws, 552. 734. Pure food laws, 552. 735. Sunday law, 553. 736. Liquor on Sundays, 554. 737. Disorderly conduct, 555. 738. Profanity, 555. 739. License laws, 555. 740. Vagrancy, 556. 741. Nuisances, 556. 742. Road laws, 557. 743. Other acts, 557. 744. Judgment under statutes, 557. 745. Execution under statutes, 558. 746. Judgment under ordinances, 559. 747. Execution under ordinances, 559. 748. Revision of judgment, 560. 749. Effect of payment, 560. 750. Disposition of fines collected, 560. 751. The record, 561. 752. Institution of the proceeding, 561. 753. Issuance of process, 561. , 754. Jurisdiction, 561. 755. Statute or ordinance violated, 562. 34 Table of Contents. 756. Presence of defendantj 564. 757. Evidence, 564. 758. Finding of fact, 565. 759. Judgment, 566. 760. Imprisonment, 566. 761. Record under act of 1881, 566. CIIAPTEE XXXII. PENAL ACTIONS— CONTINUED. 762. Habeas corpus, 567. 763. Certiorari, 567. 764. Allowance, 568. 765. Effect of appealing, 568. 766. Where no judgment passed, 569. 767. Issuing, 569. 768. Consideration of case, 569. 769. Appeals, 569. 770. Under act of 1876, 570. 771. Where taken, 571. 772. Time of appealing, 571. 773. Allowance of appeal, 572. 774. Allowance mine pro tunc, 572. 775. Application for allowance, 573. 776. Striking oflF appeals, 574. 777. Mandamus to justice, 574. 778. Proceedings on appeal, 574. 779. Appeals under the act of 1881, 575. 780. Appeals to the superior and supreme courts, 576. CHAPTEK XXXIII. FORMS. 781. Information, 580. 782. Information for surety of the peace, 581. 783. Information for desertion, 581. 784. Information for search warrant, 582. 785. Complaint before United States Commissioner for breach of the peace, 582, 786. Warrant of justice, 583. 787. Warrant directed to private citizen, 583. 788. Deputation by constable, 584. 789. Return to warrant, 584. 790. Search warrant, 584. 791. Return to search warrant, 585. 792. Warrant of a judge to remove a criminal from one county to {mother, 585 793. Recognizance to appear at justice's hearing, 586. 794. Subpojna for justice's hearing, 586. 795. Suipcena duces tecum, 586. 796. Commitment of prisoners for further examination, 587. Table of Contents. 25 797. Precept for bringing the defendant before the justice out of jail for further hearing, 587. 798. Commitment of witness for not testifying, 588. 799. Attachment for a witness, 588. 800. Recognizance to appear at court, 588. SOI. Eecognizance of witnesses, 589. 802. Recognizance for the peace and good behavior, 589. AOS. Commitment by justice, 590. S04. Discharge by justice after commitment, 590. 805. Discharge of prisoner from jail, 591. 806. Detainer, 591. 807. Return to court of quarter sessions, 592. 808. Constable's return to court, 593. 809. Bailpieoe by clerk of court, 596. 810. Bailpiece by justice, 595. 811. Venire to summon coroner's jury, 596. 812. Oath of coroner's jury, 596. 813. Oath of witness at coroner's inquest, 596. 814. Coroner's inquisition, 597. 815. Petition for writ of habeas corpus where detained by commitment, 59. 816. Petition for writ of habeas corpus where not detained by commitment, 598. 817. Return to writ of habeas corpus, 598. 818. Traverse of return, 599. 819. Oath of jury commissioners, 599. 820. Precept for venire for oyer and terminer, 599. 821. Precept for venire for quarter sessions, 600. 822. Venire for grand jury in oyer and terminer and return of sheriff, 600. 823. Venire for traverse jury in oyer and terminer and return of sheriff, 601. 824. Venire for grand jury in quarter sessions and return of sheriff, 602. 825. Venire for traverse jury in quarter sessions and return of sheriff, 603. 826. Return of jury commissioners and sheriff to writs of venire facias juratores, 604. 827. Oath of foreman of grand jury, 605. 828. Oath of grand jurors, 605. 829. Oath of petit jurors, 605. 830. Oath of jury to try issue of present insanity, 606, 831. Oath of officer in charge of jury, 606. 832. Oath of officer in charge of jury to be kept together, 606. 833. Oath of witness before grand jury, 606. 834. Report of grand jury, 606. 835. Criminal information, 607. 836. Presentment of grand jury, 607. 837. Indictment in oyer ajid terminer, 609. 838. Indictment in quarter sessions, 610. 839. Indictment of a corporation, 612. 840. Bench warrant, 613. 841. Demurrer to indictment, 613. 842. Joinder in demurrer to indictment, 613. 843. Motion to quash indictment, 614." 844. Petition to remove pending indictment to tiie supreme court, 61S. 845. Order on petition, 616. 86 Table of Contents. 846. Answer, 616. 847. Petition for change of venue, 616: 848. Petition by indigent person for order for support, 617. 849. Order for citation under the foregoing petition, 617. 850. Final order after hearing, 618. 851. Petition for nolle prosequi, 618. 852. Order for nolle prosequi, 618. 853. Petition for continuance, 619. 854. Petition for bill of particulars, 619. 855. Bill of particulars, 620. 856. Plea of not guilty, 620. 857. Joinder of issue, 620. 858. Plea to the jurisdiction, 620. 859. Replication to plea to jurisdiction, 621. 860. Plea of misnomer in abatement, 621. 861. Replication to plea in abatement, 621. 862. Pleas of former acquittal and former conviction, 622. 863. Plea of former jeopardy, 622. 864. Special pleas in bar, 623. 865. Replication to plea in bar, 623. 866. Demurrer to plea, 623. 867. Joinder in demurrer to plea, 623. 868. Petition for venire facias to summon corporation indicted, 624. 869. Order of court, 625. 870. Venire facias to summon corporation, 625. 871. Return of sheriff, 626. 872. Appearance and entry of plea by corporation, 626. 873. Subpoena, 626. 874. Oath, 627. 875. Affirmation, 627. 876. Oath of witness at trial or hearing, 627. 877. Oath of stenographer, 627. 878. Oath of interpreter, 628. 879. Oath of juror in examination on voir dire, 628. 880. Forfeiture of recognizance, 628. 881. Petition to remit forfeited recognizance, 628. 882. Points and answers, 629. 883. Verdict of jury, 629. 884. Special verdict, 630. 885. Motion in arrest of judgment, 632. 886. Motion for new trial, 632. 887. Sentence of death, 632. 888. Mandate of the governor to execute death sentence, 632. 889. Return of sheriff to mandate, 633. 890. Oath of sheriff, 634. 891. Oath of jurors, 634. 892. Certificate of jurors, 635. 893. Sentence for larceny, 635. 894. Sentence for nuisance, 635. 895. Sentence for fornication and bastardy, 635. Table of Contents. 27 896. Commitmeiit for nonpayment in fomication and bastardy, 636. 897. Sentence for forcible entry and detainer, 636. 898. Sentence for svirety of the peace, 636. 899. Sentence for desertion, 636. 900. Bond of indemnity to directors of the poor for fulfilment of sentence in bastardy case, 636. 901. Bond of indemnity to directors of the poor for fulfilment of order in deser- tion case, 637. 902. Kecognizance for support of bastard child, 638. 903. Order to destroy gambling device, 038. 904. Sentence prosecutor to pay costs, 638. 905. Commitment to county jail, 038. 906. Commitment to Eastern Penitentiary, 639. 907. Commitment to Pennsylvania Industrial Eeformatory, 640. 908. Petition of sheriff to transfer insane inmates, 641. 909. Order of court on petition, 641. 910. Report of commissioners, 641. 911. Commitment to asylum by court, 642. 912. Commitment to local hospital for the insane, 642. 913. Petition for discharge under the insolvent laws, 642. 914. Bond for discharge under the Insolvent laws, 643. 915. Petition of prosecutor sentenced to pay costs for discharge, 643. 916. Order on petition, 644. 917. Petition for leave to discharge under act of 1887, 644. 918. Order of court for discharge under act of 1S87, 645. 919. Appeal from taxation of costs, 645. 920. Appeal and aflldavit, 646. 921. Praecipe for certiorari on appeal, 646. 922. Recognizance on appeal, 647. 923. Proof of service of appeal to superior court, 647. 924. Writ of error from supreme court, 648. 925. Certificate to record sent up, 648. 926. Petition to make appeal a supersedeas, 649. 927. Order for supersedeas, 649. 928. Cover of paper book, 650. 929. Contents of paper book, 650. 930. Assignments of error, 650. 931. Statement of questions involved, 651. 932. Bill of exceptions, 651. 933. Notice of settling bill of exceptions, 654. 934. Certificate of court, where bill of exceptions at common law not sealed, 654. 935. Petition for mandamus to seal a bill of exceptions, 654. 936. Certificate of opinion of appellate court, 657. 937. Remittitur from appellate court, 657. 938. Form of information or complaint in penal actions, 658. 939. Form of summons, 658. 940. Form of warrant, 659. 941. Capias for swearing, 660. 942. Commitment on conviction, 660. 943. Warrant to Ie\-y penalty, on conviction, 661. 28 Table of Contents. 944. Transcript of record of conviction in summary proceeding, 661. 945. Transcript in action for penalty. 662. 946. Praecipe for certiorari and aiEdavit, 663, 947. Writ of certiorari, 664. 948. Return to certiorari, 664. 949. Remittitur to justice, 664. 950. Petition for special allocatur in summary proceedings, 665. 951. Allowance of appeal, 666. 952. Recognizance on appeal from summary conviction, 666. 953. Application for pardon, 666. 954. Papers accompanying application for pardon, 667. 955. Petition for requisition, 667. 956. Certificate of district attorney, C68. 957. Indorsements on application, 669. 958. Reqxiisition on governor of asylum state, 670. 959. Appointment of agent for the state, 670. 960. Warrant of governor for arrest in Pennsylvania, 671. 961. Certificate of officer that a fugitive from justice was delivered up to the aj^nt of another state, 672. TABLE OF CASES CITED. A. Abbott V. Com. 8 Watts, 517, 34 Am. Dec. 492 320 Abemethy v. Com. 101 Pa. 322 420 Ableman v. Booth, 21 How. 506, 16 L. ed. 169 207, 208 Acker v. Com. 94 Pa. 284 310 Ackennan, Ex parte, 3 Del. Co. Rep. 406, 1 Wilcox Rep. 54 164 Adams v. Com. 1 Woodvv. Dec. 417 545, 547, 552, 565 Addis V. Com. 4 Binn. 541 475 Adelman v. Steele, C Luzerne Legal Reg. 69, 34 Phila. Leg. Int. 134 531 Agnew V. Com. 4 C. P. Rep. 75 179, 181 V. Cumberland County, 12 Serg. & R. 94 351, 497 V. Washington, 7 Pa. Co. Ct. 180 123, 543, 566 Aldermen &, Justices of the Peace, 2 Pars. Sel. Eq. Cas. 458, 463 113, 187, 541 Aldrich v. Jessup, 3 Grant Cas. 158 526 Alexander v. Com. 105 Pa. 1 255, 256, 337, 338, 339 393, 405, 407, 432, 443, 483, 485 Allegheny County v. Com. 1 Monaghan, 119 554 v.McClung, 53 Pa. 482 116, 511 V. Shaw, 34 Pa. 301 514 V. Watt, 3 Pa. St. 462 514 Allen V. Carter, 119 Pa. 192, 13 Atl. 70 106 V. Delaware County, 161 Pa. 550, 29 Atl. 288 499 Allentown v. Western U. Teleg. Co. 148 Pa. 117, 23 Atl. 1070 541 Allison V. Com. 99 Pa. 17 399 Altenberg v. Com. 126 Pa. 602, 4 L. R. A. 543, 17 Atl. 799 332, 334 Ammerman v. Montour County, 19 Pa. Co. Ct. 659 515 Andrus v. Warren County, 32 Pa. 540 167 Anthony's Appeal, 2 Phila. 155 530 Appel's Petition, 18 Phila. 476, 43 Phila. Leg. Int. 108 157 Applegate's Petition, 1 Pa. Dist. R. 125 175 Application of Judges, 64 Pa. 33 353 Arentsen, Re, 26 W. N. C. 359, 18 Wash. L. Rep. 672, 7 Lane. L. Rev. 366, 47 Phila. Leg. Int. 414, 21 Pittsb. L. J. N, S. 101 222 Ash V. Jackson, 26 Pa. Co. Ct. 28 348 Ashton, Re, 5 Kulp, 23 506 Aspden's Appeal, 24 Pa, 182 453, 529 Aughenbaugh v. York County, 13 York Legal Record, 189 500 29 30 Citations. B. Babcock's Case, 7 Montg, Co. L. Kep. 171 157 Bailey v. Com. 5 Rawle, 59 306 Baird v. Householder, 32 Pa. 168 143 Baldwin v. Com. 26 Pa. 171 339, 493, 494 Bamber v. Com. 10 Pa. 339 113, 537 Baranoski's Case, 9 Pa. Co. Ct. 264, 36 Pittsb. L. J. 363, 6 Lane. L. E;ev. 189. 465 Barclay v. Com. 25 Pa. 503, 64 Am. Dec. 715 472 Barge v. Com. 3 Penr. & W. 262, 23 Am. Dec. 81 332, 333, 339 Barker v. Com. 19 Pa. 412 304, 305 Barlow v. Com. 3 Binn. 1 454, 456 Barnes v. Com. 2 Pennyp. 506, 11 W. N. C. 375, 2 Kulp, 59 175, 485, 531, 532 Barter v. Com. 3 Penr. & W. 253 120, 542, 546, 560 Bartolett v. Achey, 38 Pa. 273 119, 540, 541 Baughman v. Baughman, 13 York Leg. Rec. 19 193 Beale v. Com. 25 Pa. 11 392, 455, 476, 487 Beaverson v. York County, 1 Pa. Co. Ct. 606, 3 Lane. L. Rev. 209 495 Becker v. Com. (Pa.) 8 Cent. Rep. 388, 9 Atl. 510 266 Beidelman v. Northampton County, 4 Legal Goz. 212 499, 500 Bender's Case, 8 Pa. Co. Ct. 664 510 Benner v. Frey, 1 Binn. 366 225 Berks County v. Pile, 18 Pa. 493 350, 351, 497 Berkstresser v. Com. 127 Pa. 15, 17 Atl. 680 189, 191, 196, 533 Biles V. Com. 32 Pa. 529, 75 Am. Dec. 568 290 Birch V. Philadelphia, 11 W. N. C. 531 498 Blackman v. Com. 124 Pa. 578, 23 W. N. C. 464, 46 Phila. Leg. Int. 326, 20 Pittsb. L. J. N. S. 28, 17 Atl. 194 254, 344, 345 Bleiler v. Muldoon, 16 Pa. Super. Ct. 553 513 Blessington v. Com. (Pa.) 12 Cent. Rep. 512, 14 Atl. 416 545, 563 Blythe v. Wright, 2 Ashm. (Pa.) 428 120, 472 Board of Charities & Correction v. Kennedy, 3 Pa. Dist. R. 231, 34 W. N. C. 83 ... . 529 V. Lockard, 198 Pa. 572, 48 Atl. 496, Reversing 13 Pa. Super. Ct. 569. . 530 V. Moore, 19 Phila. 540,'45 Phila. Leg. Int. 216 529 Board of Health v. Crest Fair Dairy Co. 3 Pa. Dist. 383, 14 Pa. Co. Ct. 119. . 572 V. Decker, 3 Pa. Dist. R. 362, 14 Pa. Co. Ct. 117, 3 Lack. Jur. 173 572 Bodine v. Com. 24 Pa. 69 194, ] 37 Boice V. Curtis, 2 Luzerne Leg. Reg. 203 556 Bolivar v. Coulter, 10 Pa. Dist. R. 171, 58 Phila. Leg. Int. 133 123, 544, 559, 560, 563, 566, 509 Boner v. Miller, 2 York Legal Record, 176 .559 Bose V. Y'ork County, 11 York Legal Record, 77, 7 Del. Co. Rep. 79 107, 108 Bowman v. Burke, 6 Kulp, 228 574 Boyle V. Lloyd, 9 Kulp, 390, 16 Lane. L. Rev. 279 407 Boyles v. Com. 2 Serg. & R. 40 279, 434 Braddee v. Com. Watts, 530 494 Bradford County v. Wells, 125 Pa. 319, 17 Atl. 439 183, 490, 508 Bradford Comity Poor Dist. v. Case, 2 Pa. Co. Ct. 044 531; Citations. 31 Bramson's Case, 1 Aslim. (Pa.) S4 526 Brandt v. Com. 94 Pa. 290 125, 358, 419 Bredin's Appeal, 92 Pa. 241, 37 Am. Rep. 677 350 Bressler's Case, 3 Luzerne Leg. Obs. 324 207, 208 Briceland v. Com. 74 Pa. 463 355, 356 Briggs V. Erie County (1881) 98 Pa. 570 518 Brooks V. Com. 61 Pa. 352, 100 Am. Dec. 645 145, 150 Bross V. Com. 71 Pa. 262 200, 203, 204, 484 Brown v. Com. 3 Serg. & R. 273 101 V. Com. 73 Pa. 321, 13 Am. Rep. 740 316, 317, 376, 415 V. Com. 76 Pa. 319 239, 251, 389, 398, 404, 431 V. Com. 78 Pa. 122 115, 324 V. McCreight, 187 Pa. 181, 41 Atl. 45 349 Bryan v. Com. 27 Pa. 284 485 Buchanan v. Com. (Pa.) 5 Cent. Rep. 733, 6 Atl. 704 385 Bueher v. Com. 103 Pa. 528 540 Buck V. Com. 107 Pa. 486 330, 332, 358, 400 Bucks County Coroner's Inqxiisition, 17 Pa. Co. Ct. 553 512 Bucks County Directors of Poor v. Dungan, 64 Pa. 402 475 Bucks County Grand Jury, 24 Pa. Co. Ct. 162 ... ; 236 Bucks County Jurors, Re, 20 Pa. Co. Ct. 36 368, 369, 371, 373 Burd V. Com. 6 Serg. & R. 252 289 Burk V. Howley, 179 Pa. 539, 36 Atl. 327 143, 146,' 150 Burnett v. Lackawanna County, 9 Pa. Co. Ct. 95, 1 Lack. Jur. 400 510 Burns's Case, 5 Pa. Co. Ct. 549 510 Eurrell Twp. v. Pittsburg Guardians of Poor, 62 Pa. 472, 1 Am. Rep. 441 . . 536 Burry's Appeal, 1 Monaghau, 89, 5 Pa. Co. Ct. 481 554 Burton v. Erie, 26 Pa. Co. Ct. 478 517 Butcher v. Yocum, 61 Pa. 168, 100 Am. Dec. 625 536 Butler, Ex parte, 7 Luzerne Leg. Reg. 209, 1 Lack. Legal Record, 92 164 Butler County v. Leibold, 107 Pa. 407 156 Butler's Appeal, 73 Pa. 448 559 Byers v. Com. 42 Pa. 89 209, 539, 556, 565, 566 C. Calling Jurors, Re, 1 Pa. Co. Ct. 644 392 Cameron v. Montgomery, 13 Serg. & R. 128 574 Campbell v. Com. 59 Pa. 266 313 V. Com. 84 Pa. 187, 199 125, 296, 358, 370 V. Com. 3 Luzerne Leg. Obs. 194 438, 454 Carlisle v. Baker, 1 Yeates, 471 545, 559 V. Lifter, 16 Pa. Co. Ct. 85, 4 Pa. Dist. R. 230 571 Carroll v. Com. 84 Pa. 107 352, 356, 418 Castner v. Cornell, 1 Luzerne Leg. Obs. 58 347 Catheartv. Com. 37 Pa. 108 244, 260, 296, 392, 416, 425, 427, 429, 431, 453, 483, 485 Caughney v. Pittsburg, 12 Serg. & R. 53 568 Challenge to Grand Jurors, 23 Pittsb. L. J. 73, 8 Legal Gaz. 6 374 Chapman v. Com. 5 Whart. 427, 34 Am. Deo. 565 267, 276 32 Citations. Charge to Grand Jury Ee, 5 Pa. Dist. R. 130 137, 236, 237, 243, 244, 347 Charles v. Abcll, Brightly (Pa.) 131 222 Charters v. Dauphin County, 17 Pa. Co. Ct. 300, 5 Pa.. Dist. R. 145 167 Chase v. Com. 2 W. N. C. 17 370, 378, 379 Che;:ter v. Philadelphia, R. & P. Teleg. Co. 1 Pa. Dist. R. 142 550 V. Western U. Teleg. Co. 154 Pa. 404, 25 Atl. 1134 541 City V. Bailey, 8 Phila. 485, Legal Gaz. Rep. 87, 2 Legal Gaz. 394 529, 531 V. Cohen, 13 W. N. C. 468 563 V. Duncan, 4 Phila. 145, 17 Phila. Leg. Int. 373, 5 Kulp, 377, 7 Lane. L. Rev. 58 538-540, 546, 562, 563, 565, 566 V. Harbison, 10 Phila. 306, 32 Phila. Leg. Int. 40, 1 W. N. C. 186. .565, 566 V. Hirschline, 1 Woodw. Deo. 142 565, 566 V. Strawbridge, 4 W. N. C. 215 546 City use of Fairmount Park v. Junker, 9 Pa. Dist. R. 673. .542, 559, 563, 564, 566 Clader v. Shepowich, 13 Pa. Co. Ct. 459, 2 Pa. Dist. R. 824 137 Clarion County v. Western Pennsylvania Hospital for Insane, 111 Pa. 339, 3 Atl. 97 464 Clark V. Bartlett, 8 Phila. 301 561, 562, 564, 565, 566 V. Com. 123 Pa. 555, 16 Atl. 795 137, 216, 219, 318, 378, 397 V. Com. 29 Pa. 120 i 223 V. Com. 29 Pa. 129 361, 363, 374, 385, 386, 484 V. Cook, 14 Pa. Super. Ct. 309, Affirmed in 197 Pa. 643, 27 Atl. 851 .. . 155 Clary v. Com. 4 Pa. 210 263, 280, 454 Clearfield County v. Cameron Twp. Poor Dist. 135 Pa. 86, 19 Atl. 952 462 Clellans v. Com. 8 Pa. 223 454, 487 Clemens v. Com. 7 Watts, 485 492 Clement's Petition, 9 York Legal Record, 203, 5 Pa. Dist. R. 295, 18 Pa. Co. Ct. 71 536 Codding v. Bradford County, 116 Pa. 47, 9 Atl. 153 182, 507 Coden v. Gettysburg, 8 Legal Gaz. 167 559 Cohen v. Plymouth, 7 Kulp, 101 643, 566 Collins V. Com. 3 Serg. & R. 220 281, 454 Columbia v. Patton, 5 Lane. Bar, No. 2 570 Colwyn v. Tarbottom, 1 Pa. Super. Ct. 179, 38 W. N. C. 38 575 Comfort V. Com. 5 Whart. 437 154 Commissioners v. Murray, 3 Watts, 348 543 Com. V. Adaire, 18 Lane. L. Rev. 42 407, 440, 441 V. Adams, 3 Am. L. J. 134 210 V. Adams, 2 Pa. Super. Ct. 46, 38 W. N. C. 571 269, 437 V. Addicks, 5 Binn. 520 213 V. Addicka, 2 Serg. & R. 174 213 V. Addis, 1 Browne ( Pa. ) 285 394 V. Adley, 1 Pearson ( Pa. ) 62 287 V. Ahl, 43 Pa. 53 475, 525, 526 V. Alburger, 1 Whart. 469 342 V. Alexander, 6 Binn. 170 142, 211 V. Alexander, 2 Cheater Co. Rep. 267 557, 573 V. Allegheny County Jailer, 7 Watts, 366 362 V. Allegheny County Sheriff & Gaoler, 10 Serg. & R. 304 361 V. Allegheny Valley R. Co. 14 Pa. Super. Ct. 336 334 Citations. 33 Com. V. Allen, 14 Pa. Co. Ct. 546 230 V. Allen, 24 Pa. Co. Ct. 65 280, 306, 315, 316, 335 V. Allen, 135 Pa. 483, 19 Atl. 957 364 V. Allport, 2 Blair, 24, 10 Pa. Dist. R. 659, 32 Pittsb. L. J. N. S. 185. . 533 V. Alsop, 1 Brewst. (Pa.) 328, 6 Phila. 371, 24 Phila. Leg. Int. 196. . 345, 346, 445, 448 V. Anderson, 5 Kulp, 302 157 V. Anderson, 17 Pa. Co. Ct. 89 490 V. Anspach, 15 W. N. C. 414 .^ 345 V. Antrim, 23 Pa. Co. Ct. 48, 9 Pa. Dist. E. 374, 15 Mori%. Co. L. Eep. 212, 2 Dauphin Co. Rep. 328 553 V. Apple, 25 Pittsb. L. J. N. S. 226 573 V. Applegate, 1 Pa. Dist. R. 127 326 V. Armstrong, 4 Pa. Co. Ct. 5 305, 443 V. Arner, 149 Pa. 35, 24 Atl. 83 338, 438 V. Artman, 3 Grant. Cas. 436 107 V. Atkinson, 8 Phila. 375 212 V. Ault, 10 Pa. Super. Ct. 651 265, 267, 268, 310, 330, 429 V. Ayers, 17 Pa. Super. Ct. 352 562, 565 V. Bachop, 2 Pa. Super. Ct. 294 290, 291 V. Bain, 1 Pa. Co. Ct. 25, 2 C. P. Rep. 187 500 V. Baird, 4 Serg. & R. 141 301 V. Baker, 11 W. N. C. 451 ...196, 197 V. Baldwin, 149 Pa. 305, 24 Atl. 283 486, 534 V. Baldwin, 5 Pa. Co. Ct. 509 493 V. Balph, 18 Pa. Co. Ct. 242, 27 Pittsb. L. J. N. S. 148 131, 493 V. Balph, 111 Pa. 365, 3 Atl. 220 107, 108 V. BaJtzby, 3 Pa. Co. Ct. 73 490 V. Baianowski, 5 Pa. Co. Ct. 642, 45 Phila. Leg. Int. 370 371, 377 V. Bard, 10 Lane. Bar, 75 564, 568, 569 V. Bargar, 2 Law Times N. S. 161 266, 268, 313 V. Barge, 11 Pa. Super. Ct. 164 284, 455 V. Barger, 14 Phila. 368, 37 Phila. Leg. Int. 274 281 V. Barker, 5 Binn. 423 208 V. Barner, 199 Pa. 335, 49 Atl. 60 401 V. Bamett, 10 Kulp, 372 238 V. Barr, Q. S. Lane. Jan. 29, 1848 491 V. Bartilson, 85 Pa. 482 186, 219, 253, 318, 327, 341, 345, 480 V. Basendorf, 153 Pa. 459, 25 Atl. 779 187, 192, 197 V. Bashore, 1 Legal Record Rep. 255 547, 550, 558, 564 V. Bass, 4 Kulp, 76, 3 Lane. L. Rev. 279 271, 335 V. Bates, 1 Pa. Super. Ct. 223, 12 Montg. Co. L. Rep. 41 253, 344, 345 V. Baturin, 22 Pa. Co. Ct. 161 299 V. Baturin, 24 Pa. Co. Ct. 181, 3 Dauphin Co. Eep. 110 408 V. Bauer, 9 Phila. 589, 29 Phila. Leg. Int. 68 193 V. Baum, 4 Luzerne Legal Reg. 285 606 V. Baylor, 5 Law Times, N. S. 93 114 V. Beale, 19 Pa. Super. Ct. 434 476, 482 V. Beamish, 81 Pa. 389 .261, 291 V. Beatty, 1 Watts, 382 320 Pa. Crim. Proe. — 3. 34 Citations. Com. V. Beatty, 15 Pa. Super. Ct. 5 297 V. Beatty, 18 Phila. Leg. Int. 316 208 V. Beehtol, 4 Clark (Pa.) 306 251, 255, 259, 261, 265, 302, 323 V. Beck, 1 Browne (Pa.) 277 212 V. Becker, 1 Woodw. Dec. 297 195, 201 V. Becker, 14 Pa. Super. Ct. 430 319 V. Bedell, 26 Pittab. L. J. 85 371, 375, 376 V. Beeby, 3 Del. Co. Rep. 73, 3 Lane. L. Rev. 358 284 V. Beerbrowy. 3 Clark (Pa.) 404 306 V. Beldham*15 Pa. Super. Ct. 33 231, 239, 245, 246, 301, 317 V. Bell, 4 Pa. Super. Ct. 187, 40 W. N. C. 496 355, 357 V. Bell, 20 Pa, Co. Ct. 223, 7 Pa. Dist. R. 54 423 V. Bell, 145 Pa. 374, 22 Atl. 641 218, 221, 224, 419 V. Bell, 166 Pa. 405, 31 Atl. 123 419 V. Bellis, 1 Northampton Co. Rep. 46 435, 438, 450 V. Bennett, 1 Pittsb. 261 137, 252, 261, 265, 301, 490, 491 V. Benscoter, 1 Luzerne Leg. Obs. 77 494 V. Bentley, 18 Lane. L. Rev. 'sS 533 V. Berger, 3 Brewst. (Pa.) 247 397 V. Beucher, 10 Pa. Co. Ct. 3, 48 Phila. Leg. Int. 220 386, 398, 400, 408, 435, 438 V. Bezek, 168 Pa. 603, 32 Atl. 109 359, 419 V. Biddle, 200 Pa. 640, 50 Atl. 262 419, 484 V. Bilderbaek, 2 Pars. Sel. Eq. Ca-s. 447 271, 437 V. Bllski, 4 Pa. Dist. R. 720, 1 Lack. Legal News, 286, 13 Lane. L. Rev. 142 199 V. Bird, 2 Pa. Co. Ct. 577 476, 507 V. Bird, 144 Pa. 194, 22 Atl. 877 203, 204, 478, 484 V. Birdsall, 69 Pa. 482, 8 Am. Rep. 283 270, 467 V. Bishman, 138 Pa. 639, 21 Atl. 12 425 V. Bishoff, 13 Pa. Co. Ct. 503, 2 Pa. Dist. R. 646, 7 York Legal Record, 45 499 V. Bishop, 14 Pa. Co. Ct. 404 493, 500 V. Bitzer, 3 Lane. L. Rev. 78 518 V. Black, 12 Pa. Co. Ct. 31, 2 Pa. Dist. R. 46 123, 144, 543 V. Blackburn, 3 Pa. Co. Ct. 464 254, 344, 345, 346 V. Blackburn, 15 Montg. Co. L. Rep. 175 535 V. Blair, Ingraham on Insolvency, 47 506 V. Blanford, 6 Pa. Co. Ct. 389 509 V. Blank, 22 Pa, Co. Ct. 378, 6 Northampton Co. Rep. 374 573, 574 V. Blocher, 4 Lane. Bar, No. 28 202 V. Boatwright, 3 Lane. L. Rev. 293, 2 Del. Co. Rep. 345 448 V. Boeshore, 2 Del. Co. Rep. 23, 2 Chester Co. Rep. 115 133 V. Boettcher, 24 Pa. Co. Ct. 456, 10 Kulp, 155, 14 York Legal Record, 134, 10 Pa, Dist. R. 101 294 V. Bolton, 1 Serg. & R. 328 189 v. Boos, 1 Luzerne Leg. Reg. 375 545^ 553 V. Borden, 61 Pa. 272 538, 546, 547, 550, 558, 561, 564, 566^ 575 V. Bosch, 15 W. N. C. 316 554 V, Boschino, 176 Pa. 103, 34 Atl. 964 43j Citations. 35 Com. V. Bostwick, 17 Pa. Co. Ct. 9, 5 Pa. Dist. R. 120 132 V. Boult, 1 Browne (Pa.) 237 193 V. Bowers, 3 Brewst. (Pa.) 350 255, 310, 314, 321 V. Bowman, 6 KiUp, 176 534, 535 V. Bowman, 171 Pa. 448, 33 Atl. 342 429 V. Boyer, 1 Binn. 201 298 V. Boyer, 8 Phila. 611 , 332 V. Boyer, 20 Pa. Co. Ct. 638, 7 Pa. Dist. R. 175 519 V. Boyle, 9 Phila. 592, 29 Phila. Leg. Int. 85 406, 441 V. Boyle, 14 Pa. Co. Ct. 561, 3 Pa. Dist. R. 591 272, 283 V. Bracken, 14 Phila. 342, 37 Phila. Leg. Int. 14, 8 W. N. C. 280 281 V. Bradley, 16 Pa. Super. Ct. 561 234, 272, 273, 322, 357, 358, 433, 443, 467, 481 V. Bradney, 126 Pa. 199, 17 Atl. 600 244, 248, 315, 317, 479 V. Brady, 5 Pa. Dist. R. 46 494, 498 V. Brandt, 17 Pa. Co. Ct. 138, 12 Lano. L. Rev. 413, 1 Lack. L. News, 287 ; 199, 200 V. Brazer, Q. S. Phila. 1847 256 V. Bredin, 165 Pa. 224, 30 Atl. 921 231, 255, 494 V. Brennan, 193 Pa. 567, 44 Atl. 498 137, 316 V. Breyessee, 160 Pa. 451, 28 Atl. 824 440 V. Briggs, 16 Phila. 438, 41 Phila. Leg. Int. 166, 14 W. N. C. 341 465 V. Bright, 11 Pa, Dist. R. 173 264, 266 V. Britton, 3 Legal Gaz. 26, Legal Gaz. Rep. 513 405 V. Brockway, 5 Kulp, 174 469 V. Brosk, 8 Pa. Dist. R. 638 277, 296 V. Brown, 1 Browne (Pa.) 72 160 V. Brown, 1 Legal Chronicle, 345, 30 Phila. Leg. Int. 381 376, 378 V. Brown, 7 Kulp, 103 449, 450 V. Brown, 11 Phila. 370, 32 Phila. Leg. Int. 430, 2 W. N. C. 153 361 V. Brown, 12 Phila. 600, 35 Phila. Leg. Int. 5 468 V. Brown, 16 W. N. C. 557 223 V. Brown, 20 Pa. Co. Ct. 139, 7 Pa. Dist. R. 117 310 V. Brown, 138 Pa. 447, 21 Atl. 17 288, 289 y. Brownbridge, 1 Brewst. (Pa.) 399, 6 Phila. 318, 24 Phila. Leg. Int. 244 556 V. Brubaker, 13 Pa. Super. Ct. 14 429, 431 V. Bruener, 17 Pa. Co. Ct. 151, 1 Lack. Legal News, 295 199 V. Brummer, 8 Phila. 607 362 V. Bruner, 11 Pa. Co. Ct. 428, 1 Pa. Dist. R. 641, 22 Pittsb. L. J. N. S. 349 400, 422, 447 V. Brunner, 3 Pa. Co. Ct. 28, 2 Lehigh Valley L. R. 377. .377, 555, 570, 572 V. Brush, 22 Pa. Co. Ot. 474 ^ 277, 494 V. Bryant, 9 Phila. 595, 29 Phila. I^eg. Int. 125 147 V. Bubnis, 197 Pa. 542, 47 Atl. 748 422, 429, 441 V. Buccieri, 153 Pa. 535, 26 Atl. 228 296, 326, 359, 364, 400, 401, 409, 414, 417, 421, 429, 430, 431, 454, 484, 487, 500 V. Bunmi, 19 Phila. 530, 45 Phila. Leg. Int. 104 273, 357 V. Bunn, 1 Legal Opinion, 114 338, 344, 346 r. Bunnell, 20 Pa. Super. Ct. 51 481 36 Citations. Com. V. Burgin, 5 Legal Gaz. 258 251, 324 V. Burk, 2 Pa. Co. Ct. 12, 3 Lane. L. Rev. 138, 3 C. P. Rep. 238.252, 270, 419 V. Burkhart, 23 Pa. 521 282, 547, 548, 551, 575 V. Burkholder, 3 Pa. Dist. R. 563 192, 194, 197 V. Burns, 17 Lane. L. Rev. 171 113, 119, 229, 541, 566, 575 V. Butler, 19 Pa. Super. Ct. 626 480 V. Butler, 144 Pa. 566, 24 Atl. 910 298, 440 V. Byerly, 2 Brevvst. (Pa.) 568 298 V. Byers, 5 Pa. Co. Ct. 295, 5 Lane. L. Rev. 270 410 V. Byerts, 5 York Legal Record, 13 426, 449, 450 V. Byrne, 1 Kulp, 378 369, 374 V. Cain, 1 Legal Opinion, 25 106 V. Callahan, 153 Pa. 625, 25 Atl. 1000 553, 575 V. Callan, 6 Binn. 255 208 V. Caniory, 2 Legal Chronicle, 322 554 V. Cane, 2 Pars. Sel. Eq. Cas. 265, 1 Am. L. J. 246. .551, 552, 564, 569, 575 V. Cannon, 13 Phila. 456, 36 Phila. Leg. Int. 400 360, 419, 424, 445, 446, 450 V. Capp, 48 Pa. 53 479 V. Carey, 2 Brewst. (Pa.) 404 419 V. Carey, 2 Pa. Co. Ct. 293, 18 Phila. 668, 43 Phila. Leg. Int. 384, 4 Kulp, 141, 3 Del. Co. Rep. 98, 1 Lehigh Valley L. R. 345 506 V. Carling, 1 Pa. Co. Ct. 413, 1 Lehigh Valley, L. R. 110 392 V. Carr, Q. S. Phila. October 23, 1847 492 V. Carson, 3 Phila. 219, 15 Phila. Leg. Int. 325 360, 389 V. Carson, IGO Pa. 179, 30 Atl. 985 233, 266, 270, 279 V. Cart, 2 Pittsb. 495 264 V. Carter, 3 Luzerne Leg. Obs. 37, 20 Phila. Leg. Int. 21, 10 Pittsb. L. J. 179 208 V. Casey, 14 Pa. Co. Ct. 389, 3 Pa. Dist. R. 413, 7 Kulp, 265 263, 271, 272, 350, 444 V. Casper, 6 Pa. Co. Ct. 382 190 V. Cassell, 1 Pa. Super. Ct. 476, 38 W. N. C. 213 479 V. Catterson, 3 Lack. Jur. 1 177 V. Cawley, 16 Pa. Co. Ct. 259, 4 Pa. Dist. R. 69, 7 Kulp, 539 535 V. Chadman, 19 Lane. L. Rev. 117 557 V. Chambers, 15 Phila. 415, 39 Phila. Leg. Int. 208 300 v. Chathams, 50 Pa. 181, 88 Ain. Deo. 539 439 v. Chauncey, 2 Ashm. (Pa.) 90 330, 384, 387 v. Cheltenham k W. G. Tump. Co. 2 Binn. 257 568 v. Chester, 18 Phila. 454, 42 Phila. Leg. Int. 276 I57 v. Christy, 26 Pa. Co. Ct. 121 292 T. Church, 17 Pa. Super. Ct. 39 270, 398, 421, 467, 481 V. Church, 1 Pa. St. 105, 44 Am. Dec. 112 315^ 435 T. Cioffi, 5 Montg. Co. L. Rep. 128 .' 128 T. Clark, 2 Ashm. (Pa.) 105 279 V. Clark, 2 Browne (Pa.) 323 396, 397 v. Clark (No. 1 ) 14 Lane. L. Rev. 41 539^ 571 574 V. Clark (No. 2) 14 Lane. L. Rev. 42 542^ 559 57^ V. Clark, 10 Lane. Bar, 106 igg Citations. 37 Com. V. Clark, 3 Pa. Super. Ct. 141 IIP, 430, 575 V. Clark, 7 Pa. Dist. R 683, 15 Lane. L. Rev. 324 501 V. Clark, 20 Phila. 395, 48 Phila. Leg. Int. 450, 10 Pa. Co. Ct. 444, 28 W. N. C. 540 436 V. Clark, 25 Pa. Co. Ct. 349, 10 Pa. Dist. R. 641, 7 Lack. Legal News, 307 277, 421, 423, 445 V. Clark, 2 W. N. C. 630 571 V. Clauss, 18 Pa. Co. Ct. 381, 5 Pa. Dist. R. 658, 5 Northampton Co. Rep. 278 552, 561, 565, 569 V. Cleary, 148 Pa. 26, 23 Atl. 1110 364, 382, 400, 407, 415 V. Clement, 8 Pa. Dist. R. 705 138, 316, 492, 499 V. Clemmer, 2 Pa. Co. Ct. 629 406 V. Clemmer, 100 Pa. 202, 42 Atl. 675 239, 318, 368, 371, 373 V. Clue, 3 Rawle, 498 337 V. Coble, 9 Pa. Super. Ct. 215, 43 W. N. C. 455 444, 447, 479 V. Cochran, 25 Pa. Co. Ct. 58 469, 487 V. Cochran Creamery Co. 4 Pa. Co. Ct. 252 552 V. Cole, 3 Kulp, 98 507 V. Collins, 15 Phila. 383, 38 Phila. Leg. Int. 252 147, 549, 558 V. Collins, 8 Phila. 609 221 V. CoUom, 1 Pa. Super. Ct. 542 355 V. Columbia & W. Tump. Co. 16 Pa. Co. Ct. 35, 12 Lane. L. Rev. 92. . 304 V. Conner, 9 Phila. 591, 29 Phila. I^g. Int. 13 332, 334 V. Connolly, 2 Legal Opinion, 70 301 V. Conrad, 25 Pa. Co. Ct. 32, 10 Pa. Dist. R. 342, 58 Phila. Leg. Int. 290, 18 Lane. L. Rev. 191 229, 294, 557 V. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465 273, 338 V. Cook (Pa.) 4 Cent. Rep. 710, S. C. 4 W. N. C. 333 476 V. Cook, 4 W. N. C. 333 476 V. Corfield, 1 W. N. C. 457 222 V. Corlies, 8 Phila. 450, 3 Brewst. (Pa. ) 575 132 V. Cornell, 4 Kulp, 81 222 V. Comman, 4 Serg. & R. 83 209 V. Corson, 2 Pars. Sel. Eq. Cas. 475 275, 276 V. Cosier, 5 Northampton Co. Rep. 74, 8 Kulp, 97 147, 406, 408 V. Costello, 1 Pa. Dist. R. 745 426 V. Costler, 5 Northampton Co. Rep. 74 277 V. County Prison Superintendent, 7 Phila. 75 506 V. Coyle, 3 York Legal Record, 171 364 V. Crader, 5 Northampton Co. Rep. 81, 4 Pa. Dist. R. 731, 17 Pa. Co. Ct. 4, 13 Lane. L. Rev. 39 564 V. Craig, 19 Pa. Super. Ct. 81 248, 315, 317, 360, 387, 396-398, 401, 403, 412, 413, 419, 420, 443, 484, 485 V. Craine, 12 Pa. Co. Ct. 286, 2 Pa. Dist. R. 615 114, 118, 541 V. Crane, 1 Legal Record Rep. 134 327 V. Craiwford, 8 Phila. 490 221, 222, 223 V. Cressinger, 193 Pa. 326, 44 Atl. 433 385, 386, 389, 405 V. Cromley, 1 Ashm. (Pa.) 179 319 V. Crommie, 8 Watts & S. 339 212 38 Citations. Com, V. Cronin, 16 Phila. 500, 41 Phila. Leg. Int. 145, 1 Lane. L. Rev. 156 252, 255, 268, 294 V. Crossmire, 156 Pa. 304, 27 Atl. 40 398, 418, 431 V. Cullen, 13 Phila. 442, 36 Phila. Leg. Int. 264 291, 420 V. Culver, 1 Clark (Pa.) 361 301, 314 V. Cummings, 2 Clark (Pa. ) 49 550, 555, 553 V. Cunningham, 1 Pa. Dist. R. 573 302 V. Curren, 2 Chester Co. Rep. 393, 9 Phila. 623, 29 Phila. Leg. Int. 53 . 492, 496, 500, 506, 516, 519 V. Curry, 4 Pa. Super. Ct. 356, 40 W. JST. C. 369 451, 479 V. Curtis, 14 Phila. 361, 37 Phila. Leg. Int. 83 219 V. Cutaiar, 5 Pa. Dist. R. 403 386, 395, 400, 404, 448 V. Dale, 3 Pa. Co. Ct. 30 lOfi V. Daly, 26 Pa. Co. Ct. 494 493 V. Danner, 5 York Legal Record, 138 239, 266, 267, 268 V. Davage, 7 Kulp, 524 448 V. Davenger, 10 Phila. 478, 30 Phila. Leg. Int. 321, 2 Luzerne Leg. Reg. 177 261, 538, 539, 547, 556, 565 v. Davenport, 4 Luzerne Legal Reg. 155 177, 178, 182 V. Davidheiser, 20 Pa. Co. Ct. 200 133, 292 V. Davidson, 8 York Legal Record, 133 156 V. Davis, 10 Pa. Co. Ct. 596, 29 W. N. C. 500 309 V. Davison, 11 Pa. Super. Ct. 130 552, 565, 575 V. Dawson, 3 Pa. Dist. R. 603 416 V. Deacon, 8 Serg. & R. 47, 49 150 V. Deacon, 10 Serg. & R. 125 159 V. Deardoff, 5 York Legal Record, 63 572, 574 V. Deekard, 7 Pa. Dist. R. 400 341 V. Dee, 14 Pa. Super. Ct. 640 476, 534 V. Deitrich, 7 Pa. Super. Ct. 515, 42 W. N. C. 459 243 V. De Lacey, 3 Law Times N. S. 225 560, 568 V. Delamater, 2 Pa. Dist. R. 118 285 V. Delamater, 13 Pa. Co. Ct. 152, 2 Pa. Dist. R. 562 172, 229, 238, 376 V. Demain, Brightly (Pa.) 441 255, 256, 270, 271, 27-5 V. Demain, 3 Clark (Pa.) 487 271, 280, 315, 339 V. Demuth, 12 Serg. & R. 389 255, 333 V. Dengler, 2 Chester Co. Rep. 499 341 V. Dennis, 1 Pa. Co. Ct. 278 287, 294 V. Denniston, 9 Watts, 142 200, 525 526 V. Derschuck, 1 Kulp, 377 369 V. De Ruyter, Del. Co. Rep. 232 X52 V. Deschainps, Brightly's Digest, p. 487, Purdon's Digest, 10th ed. p. 325 280 V. Devine, 18 Pa. Super. Ct. 431 428, 433, 482 V. Dewees, 1 Woodw. Deo. 28 198 v. Dolan, 4 Pa. Co. Ct. 287 319 ' V. Dickerson, 7 W. N. C. 433 lOO V. Dickinson, 3 Clark (Pa.) 265 100, 212, 217, 309 V. Dieffenbaugh, 3 Pa. Co. Ct. 299, 5 Lane. L. Rev. 346 247, 314, 317 V. Dietrich, 7 Pa. Super. Ct. 515, 42 W. N. C. 459 236^ 360 CiTATioisrs. 39 Com. V. Diifenbaugh, 5 Lane. L. Eev. 346 571, 572, 574 V. Diflfenbai|igh, 19 Lane. L. Rev. 19 142, 566 V. Diffenbaugh (No. 2) 19 Lane. L. Rev. 46 553 V. Dimey, 36 Pittsb. L. J. 335 407 V. Dittus, 17 Lane. L. Eev. 127 489, 500 V. Ditzler, 1 Lane. Bar. No. 13 246, 247 V. Dixson, 4 Lane. L. Rev. 398 439 V. Dobbins, 2 Pars. Sel. Eq. Gas. 380 268, 269, 298 V. Doran, 15 Pa. Co. Ct. 385 216 V. Dorwart, 17 Lane. Bar. 121 t 244 V. Dougherty, 8 Phila. 366 191, 198, 199, 201 v. Doughty, 139 Pa. 383, 21 Atl. 228 337, 431, 467, 478 V. Douglass, Contra, 32 Pittsb. L. J. 368, 2 Lane. L. Rev. 179 532 V. Doyle, 16 Pa. Super. Ct. 171 491, 501 V. Draper, 2 Chester Co. Rep. 424 423 V. Dreisbaeh, 29 Phila. Leg. Int. 333, 1 Luzerne Leg. Reg. 543 . 265, 334, 543 V. Drum, 58 Pa. 9 108, 109 V. Duane, 1 Binn. 98, note 113, 120, 320 V. Duff, 7 Pa. Super. Ct. 415 427, 443, 444, 481, 484, 485 V. Duffy, 96 Pa, 50G, 42 Am. Rep. 554 320, 346 V. Duffy, 11 Phila. 378, 32 Phila. I..eg. Int. 83 192, 193, 194 V. Dukehart, 17 Pa. Super. Ct. 71 555, 558, 566 V. Dunham, 174 Pa. 436, 34 Atl. 329 478 V. Dunleavy, 16 Pa. Super. Ct. 380 414, 453, 468 V. Dunn, 8 Phila. 505 125 V. Dupes, 14 Pa. Co. Ct. 238 359 V. Durham, 8 Del. Co. Rep. 335 117, 175 V. Eagan, 190 Pa. 10, 42 Atl. 374 .326, 374, 387, 388, 399 V. Eagles, 7 W. N. C. 324 177, 335 V. Earle, Earle's Trial, 178 408 V. Earle, 1 Whart. 525 295, 438 V. Early, 1 Lack. Jur. 323 256, 324 V. Eaton, 8 Phila. 428 389, 390 V. Eberle, 3 Serg. & R. 9 444, 448 V. Ebert, 24 Pa. Co. Ct. 648 213 V. Eckerd, 174 Pa. 137, 34 Atl. 305 426, 429, 431, 482 V. Edwards, 5 Kulp, 192 233 V. Edwards, 135 Pa. 474, 19 Atl. 1064 280, 439, 451, 492 V. Edwards, 10 Phila. 215, 31 Phila. Leg. Int. 358 156 V. Eiehelberger, 119 Pa. 254, 13 Atl. 422 439 V. Eiehenberg, 140 Pa. 158, 21 Atl. 258 572, 573, 576 V. Eiehenlaub, 1 Pa. Co. Ct. 642 518 V. Eisenhower, 181 Pa. 470, 37 Atl. 521 405, 415, 421, 485 V. Elder, 12 Phila. 589, 34 Phila. Leg. Int. 400 423 V. Eley, 25 Pa. Co. Ct. 351, 10 Kulp, 306, 10 Pa. Dist. R. 647 533 V. Elvin, 5 Pa. Dist. R. 593 408, 446 V. Emery, 2 Binn. 431 187, 188 V. English, 11 Phila. 439, 33 Phila. Leg. Int. 72 229, 238, 243, 252 V. Evans, 1 Kulp, 426, 3 Law Times, N. S. 132 500 V. Evans, 29 Phila. Leg. Int. 133 545, 548, 550, 563, 569 40 Citations. Com. V. Evans, 26 Pa. Co. Ct. 90 350, 351 V. Evans, 13 Serg. & R. 426 101, 541 V. Eyre, 1 Serg. & R. 347 .145, 152, 554 V. Fagan, 12 Pa. Co. Ct. 013, 2 Pa. Dist. R. 401 131 V. Fahnestock, 15 Pa. Co. Ct. 598, 4 Pa. Dist. R. 297, 12 Lane. L. Rev. 52 284 V. Fairchild, 9 Kulp, 211, 21 Pa. Co. Ct. 310 178, 180 V. Farrell, 2 Chester Co. Rep. 381 489, 500 V. Farrell, 187 Pa, 408, 41 Atl. 382 419 V. Fassitt, Vaux. 30 165 V. Faulkner, 3 W. N. C. 540 476 V. Fechtig, 1 Pa. Co. a. 164 419 V. Fee, 6 Serg. & R. 255 213 V. Fehr, 2 Northampton Co. Rep. 275 236, 238 V. Fenicle, 20 Pa, Co. Ct. 68, 6 Pa. Dist. R. 789, 6 Northampton Co. Rep. 94 220 V. Fenstermacher, 5 Pa. Co. Ct. 424, 1 Northampton Co. Rep. 209 544 V. Ferguson, 8 Pa. Dist. R. 120 243, 247, 256 V. Ferree, 6 Pa. Dist. R. 639, 20 Pa. Co. Ct. 87, 28 Pittsh. L. J. N. S. 118, 1 Docket, 98 560, 569, 573 V. Fiegle, 2 Phila. 215 556, 568, 570 V. Fields, 4 Pa. Co. Ct. 434, 18 Phila. 607, 44 Phila, Leg. Int. 442 553 V. Fields, 5 Del. Co. Rep. 294 192, 197 V. Fink, 16 Pa. Super. Ct. 191 474 V. Fisher, 3 Lane. L. Rev. 17 556, 565 V. Fisher, 1 Legal Opinion, 56 147 V. Fisher, 20 Pa. Co. Ct. 296, 14 Montg. Co. L. Rep. 44 270, 435 V. Fisher, 9 Phila. 594, 29 Phila. Leg. Int. 102 100, 287 V. Fiaher, 5 York Legal Record, 103 157 V. Fitzpatrick, 3 Clark (Pa.) 520 397 V. Fitzpatrick, 1 Pa. Super. Ct. 518, 38 W. N. C. 156 418, 419, 482, 483, 484 V. Fitzpatrick, 15 Pa. Co. Ct. 154, 3 Pa. Dist. R. 305, 35 W. N. C. 258. . 290 V. Fitzpatrick, 121 Pa, 109, 1 L. R. A. 451, 15 Atl. 466 337, 338, 356 V. Flanagan, 7 Watts. & S. 415 296, 396, 400, 444, 449, 450 V. Flecker, 17 Pa. Co. Ct. 671, 8 Kulp, 225 294, 307 V. Fleer, 8 Del. Co. Rep. 25 234, 316 V. Flinchbaugh, 1 York Legal Record, 1 545, 557, 561, 563 V. Flucker, 11 Phila. 405, 32 Phila. Leg. Int. 208 199 V. Foering, Brightly (Pa.) 315, 4 Clark (Pa.) 29 280 V. Fogelman, 3 Pa. Super. Ct. 566, 40 W. N. C. 17. . .193, 197, 199, 203, 204 V. Foreman, 1 Lane. Bar, No. 20 280 V. Forrest, 3 Pa, Dist. R. 797, Reversed 170 Pa. 40, 29 L. R. A. 365, 32 Atl. 652 539-541, 557, 574, 575 V. Fox, 10 Phila. 204, 31 Phila. Leg. Int. 84 260, 311 V. France, 2 Brewst. (Pa.) 568 256 288 V. Frank, 21 Pa. Co. Ct. 120, 7 Pa. Dist. R. 143, 1 Dauphin Co. Rep. 6.' 118 V. Frankford, 1 Del. Co. :Rep. 513, 2 Chester Co. Rep. G5 158 V. Frankford & B. Turnp. Road Co. 9 Pa. Co. Ct. 103 101 V. Franklin, 4 Dall. 255 108 Citations. 41 C!om. V. Frazee, 2 Phila. 191 129 V. Prazier, 2 Biewst. (Pa.) 490 395 V. JTreeman, 1 Pa. Co. Ct. 392 239, 318 V. Freeman, 166 Pa. 332, 31 Atl. 115 386 V. Frescoln, 11 Lane. L. Eev. 161 ^175, 232, 233, 239, 245, 264, 272, 282, 316, 501 V. Frey, 50 Pa. 245 263, 264, 287, 313, 314, 443 V. Frey, 11 Pa. Co. Ct. 523, 1 Pa. Dist. R. 175, 9 Lane. L. Rev. 323, 3 Northampton Co. Rep. 153 244, 315, 317 V. Frior, 2 Pa. Co. Ot. 58, 1 Lehigh Valley L. R. 205, 3 Lane. L. Rev. 126 500, 506 V. Fritch, 9 Pa. Co. Ct. 164 392, 393, 410, 448 V. Fry, 5 Lane. L. Rev. 75 268, 270, 272 V. Fry, 198 Pa. 379, 48 Atl. 257 400, 401, 404, 420 V. Fuller, 4 Pa. Co. Ct. 429, 18 Phila. 610, 44 Phila. Leg. Int. 442. .553, 564 v. Gabby, 5 Pa, Dist. R. 159 493 V. Gable, 7 Serg. & R. 423 271, 297, 436, 437 V. Galbraith, 6 Phila. 281, 24 Phila. Leg. Int. 109 281, 287, 288, 314 V. Gallagher, 2 Clark (Pa.) 297 281, 294 V. Gallagher, 5 Kulp, 532 496 V. Gallagher, 9 Pa. Super. Ct. 100, 43 W. N. C. 408 279, 434, 467 v. Gamble, 11 Serg. & E. 93 208 V. Garver, 16 Phila. 468, 42 Phila. Leg. Int. 210 322 V. Gaul, 2 Woodw. Dee. 70 189, 198, 200 V. G«ary, 9 Pa. Co. Ct. 60 137 V. Gebhart, 5 Kulp, 359 500 V. Gelbert, 170 Pa. 426, 32 Atl. 1091 546, 553, 561, 562, 564, 575 V. Gennerette, 10 Pa. Super. Ct. 598 260, 282, 326 V. Gentry, 5 Pa. Dist. R. 703 419, 448 V. George, 12 Pa. Super. Ct. 1 310, 435, 436, 440, 441 V. George, 13 Pa. Super. Ct. 542 427 V. G«rade, 145 Pa. 289, 22 Atl. 464 428, 432 V. Grerrity, 1 Lack. Legal Record, 430 330 V. Gerstley, 18 Lane. L. Rev. 222 439 V. Getler, 19 Pa. Co. Ct. 248 287 V. Gibbons, 3 Pa. Super, a. 408, 39 W. N. C. 565 418, 485 V. Gibbons, 9 Pa. Super. Ct. 527 224, 225 v. Gibson, 25 Pittsb. L. J. N. S. 347 572, 574 V. Gilgallon, 1 Lack. Legal News, 172, 12 Lane. L. Rev. 263 489, 500 V. Gillam, 8 Serg. & R. 50 145, 557 V. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475 132, 255, 259, 268, 272, 281, 302, 322, 443 V. Gillespie, 25 Pa. Co. Ct. 153, 10 Pa. Dist. R. 393, 58 Phila. Leg. Int. 321, 7 Lack. Legal News, 174 468 V. Gillespie, 146 Pa. 546, 23 Atl. 393 485, 554, 575 V. Gillingham, 1 Brewst. (Pa.) 396, 6 Phila. 321, 24 Phila. Leg. Int. 244 103, 545, 562 V. Gipner, 118 Pa. 379, 12 Atl. 306 560, 564, 566 V. Goldberg, 4 Pa. Super. Ct. 142 Ill, 426, 428, 432, 435 V. Goldsmith, 12 Phila. 632, 35 Phila. Leg. Int. 420 263, 281 42 Citations. Com. V. Goldstein, 3 Pa. Co. Ct. 121 131 V. Gower, C. P. Phila. Oct. 7, 1855, MSS 556 V. Graham, 5 Kulp, 157 364 V. Graham, 1 Pa. Co. Ct. 282, 3 Kulp, 289 255, 288 V. Graham, 1 Wilcox Rep. 209 279 V. Grau, 13 Lane. Bar, 54 533 V. Graves, 23 Pa. Co. Ct. 252 262, 263, 493 V. Greeley, 8 Phila. 606 440 V. Green, 1 Ashm. (Pa.) 289 384 V. Green, 16 W. N. C. 16, 2 Lane. L. Rev. 164 489, 491 V. Green, 58 Pa. 226 354 V. Green, 185 Pa. 641, 40 Atl. 96 137, 224 V. Green, 126 Pa. 531, 17 Atl. 878 229, 235, 237, 240, 248, 315, 316, 408, 414, 485 V. Greer, 20 Pa. Co. Ct. 535, 14 Montg. Co. L. Rep. 38, 4 Lack. L. News, 42 145, 147 V. Gressly, 1 York Legal Record, 71, 12 Lane. Bar, 52 247 V. Greybill, 17 Pa. Super. Ct. 514 427 V. Griffiths, 2 Lack. Jur. 229 193 V. Grim, 1 Pa. Co. Ct. 40, 3 Kulp, 400 489, 491 V. Grimes, 116 Pa. 450, 9 Atl. 665 439 V. Grise, 23 Pittsb. L. J. 138, 11 Phila. 655, 33 Phila. Leg. Int. 102.338, 346 T. Groff, 8 Lane. L. Rev. 267 113, 119, 229, 541 V. Gross, 1 Ashm. (Pa.) 281 360, 397, 401 V. Grove, 7 Phila. 660 272, 306 V. Grower, C. P. Phila. Oct. 7, 1855, MSS 565 V. Guernsey, 8 Lack. Legal News, 3 305 V. Guernsey, 8 Lack. Leg. News, 13 280 V. Guernsey, 8 Lack. Leg. News, 17 260, 266 V. Gurley, 45 Pa. 392 441, 443, 455, 475, 485 V. Haag, 10 Lane. L. Rev. 265 247, 317 V. Haas, 57 Pa. 443 345, 479, 480, 483 V. Hadley, 13 Pa. Co. Ct. 188 280, 281 V. Hagan, 20 Phila. 392, 48 Phila. I^eg. Int. 196, 10 Pa. Co. Ct. 22 474 V. Haggel, 7 Kulp, 10, 6 York Legal Record, 147 284 V. Haggerty, 3 Brewst. (Pa.) 285 319 V. Haggerty, 4 Brewst. (Pa.) 326 526 V. Haines, 4 Clark (Pa.) 17 301, 322 V. Haines, 15 Phila. 363, 38 Phila. Leg. Int. 94 407 V. Haines, 38 Phila, Leg. Int. 94 449, 450 V. Hale, 13 Phila. 452, 36 Phila. Leg. Int. 285, 7 W. N. C. 359 362 V. Hambright, 4 Serg. & R. 149 209 V. Hand, 3 Phila. 403, 16 Phila. Leg. Int. 157 270, 271, 313, 394 V. Hanley, 15 Pa. Super. Ct. 271 443, 447 V. Hanlon, 8 Phila. 423 42i V. Hanlon, 3 Brewst. (Pa.) 461 397, 422, 526 V. Hardy, 1 Ashm. (Pa.) 410 540, 555, 564, 569 V. Hardy, 1 Browne (Pa.) 285 394 V. Hargesheimer, 1 Ashm. ( Pa. ) 413 , 433, 508 V. Harkness, 4 Binn. 194 49j Citations. 43 Com. V. Harmon, 4 Pa. 269 171, 429, 514 V. Harper, 14 W. N. C. 10 436 V. Harris, 3 Legal Gaz. 306, Legal Gaz. Rep. 455 278, 325, 473 V. Harris, 5 Pa. Dist. R. 671 300, 301, 325 V. Harris, 7 Pa. L. J. 283 212 V. Harris, 168 Pa. 619, 32 Atl. 92 427 V. Hart, 12 Pa. Super. Ct. 605 486, 531, 532 V. Hart, 17 Pa. Co. Ct. 148, 5 Pa. Dist. R. 109 194, 195, 196, 199 V. Hartman, 10 Lane. L. Rev. 33 270 V. Hatch, 26 Pa. Co. Ct. 114, 11 Pa. Dist. R. 180, 19 Lane. L. Rev. 103, 2 Blair, 187 311 V. Hatsfield, 1 Clark (Pa.) 177 526 V. Havens, 6 Pa. Co. Ct. 545 305, 327 V. Haylow, 17 Pa. Super. Ct. 541 485 T. Hays, 195 Pa. 270, 45 Atl. 728 465, 484 V. Hayward, 4 Del. Co. Rep. 569 333, 444, 490 V. Hazlett, 14 Pa. Super. Ct. 352 325, 336,. 483 V. Hazlett, 16 Pa. Super. Ct. 534 360, 406, 420, 429 V. Heidler, 191 Pa. 375, 43 Atl. 211 400, 482, 483 V. Heiffer, 2 Woodw. Dec. 311 500 V. Heikes, 26 Pa. 513 479, 480 V. Heintzer, 13 W. N. C. 129 217 V. Heinzer, 13 W. N. C. 129 222 V. Heist, 14 Pa. Co. Ct. 239 401 V. Heller, 5 Phila. 123, 19 Phila. Leg. Int. 133 406, 441 V. Henry, 2 Brewst. (Pa.) 566 298 V. Herbert, 7 Lack. Legal News, 14 533 V. Herman, 5 York Legal Record, 43 447 V. Herr, 16 Pa. Co. Ct. 598, 12 Lane. L. Rev. 361 533 V. Hess, 18 Pa. Co. Ct. 542 501, 518 V. Hetrick, 1 Woodw. Dee. 288 337 V. Hickey, 1 Clark (Pa.) 436, 2 Pars. Sel. Eq. Cas. 317 188, 221 V. Hickey, 172 Pa. 39, 33 Atl. 188 187, 188, 196 V. Higgins, 5 Kulp, 269 116 V. Hiland, 1 Pa. Co. Ct. 532 437 V. Hilbert, 14 York Legal Record, 149 192, 197, 533 V. Hill, 2 Browne (Pa.) 212 529 V. Hill, 2 Pearso:i (Pa.) 432 260, 208, 286, 313 V. Hill, 185 Pa. 385, 39 Atl. 1055 471, 480 V. Hill, 3 Pa. Dist. R. 216, 12 Pa. Co. Ct. 559, 23 Pittsb. L. J. N. S. 357 562, 563, 566 V. Hillman, 189 Pa. 548, 42 Atl. 196 430 V. Hitchman, 46 Pa. 357 526 V. Hobbs, 3 Del. Co. Rep. 97 157 V. Hoch, 1 Woodw. Dee. 332 475 V. Hodusko, 24 Pa. Co. Ct. 388, 10 Pa. Dist. R. 230, 31 Pittsb. L. J. N. S. 235 443 V. Hoey, 8 Phila. 370 318 V. Hoey, 3 Brewst. (Pa.) 514, 8 Phila. 370 219 V. Hoffman, 4 Kulp, 428 215 44 Citations. Com. V. Hoffman, 1 Lane. Bar, No. 30 440 V. Hogentogler, 6 Del. Co. Rep. 49, 11 Lane. L. Rev. 395 239, 240, 275 V. Hollinger, 190 Pa, 155, 42 Atl. 548 428, 431, 446 V. Hollinger, 16 Pa. Super. Ct. 199, 18 Lane. L. Rev. 110 478, 485 V. Hollister, 1 C. P. Rep. 146 540 V. Holloway, 1 Serg. & R. 392 454 V. Holloway, 5 Binn. 512 185, 209, 541 V. Holop, 23 Pa. Co. Ct. 417 490 V. Holstine, 132 Pa. 357, 19 Atl. 273 332 V. Holthani, 5 Pa. Dist. R. 24, 1 Lack. Legal News, 370, 13 Lane. L. Rev. 158 423 V. Hoofnagle, 1 Browne (Pa.) 201 373, 383, 405 V. Hooper, 15 Pa. Super. Ct. 227, 8 Del. Co. Rep. 89 137, 316, 360 V. Hoopman, 1 York Legal Record, 20 490 V. Hoover, 1 Browne (Pa.) Appx. 25 302 V. Hoover, 6 Lane. L. Rev. 129 287 V. Horn, 12 Pa. Co. Ct. 284, 10 Lane. L. Rev. 23, 5 Del. Co. Rep. 171, 8 Montg. Co. L. Rep. 199 560 V. Horner, 34 Pa. 440 494, 495, 498 V. Hottenstein, 2 Woodw. Dec. 477 284, 285, 286 V. Hough, 1 Pa.. Dist. R. 51 470 V. House, 6 Pa. Super. Ct. 92, 41 W. N. C. 246, 28 Pittsb. L. J. N. S. 210 412, 419, 420, 432 v. House, 10 Pa. Super. Ct. 259 339, 525 V. House, 3 Pa. Super. Ct. 304 399, 481, 483 V. Houser, 17 Lane. L. Rev. 414 100, 101, 212, 217, 309 V. Howard, 11 W. N. C. 81 199 v. Howe, 7 Lack. Leg. News, 145 239, 500 V. Howells, 18 Pa. Super. Co. 323 263, 281, 282 V. Huber, 13 Lane. Bar, 139 259 V. Huckel, 4 Pa. Co. Ct. 576 130 V. Huddell, 10 Pa. Co. Ct. 548, 1 Pa. Dist. R. 132 489, 500 v. Huggins, 2 Pa. Dist. R. 329, 12 Pa. Co. Ct. 496, 23 Pittsb. L. J. 290, 10 Lane. L. Rev. 135 470 V. Huggins, 12 Pa. Co. Ct. 496, 2 Pa. Dist. R. 329, 23 Pittsb. L. J. N. S. 290, 10 Lane. L. Rev. 135 332, 493 V. Hughes, 11 Phila. 430, 33 Phila. Leg. Int. 44 273, 313, 357, 358, 402, 403, 448 V. Hughes, 11 Pa. Co. Ct. 470, 1 Pa. Dist. R. 596 171, 232, 234, 240 V. Hunter, 11 Pa. Co. Ct. 637, 1 Pa. Dist. R. 130, 9 Lane. L. Rev. 155. . 491 V. Hunter, 13 Pa. Co. Ct. 573, 2 Pa. Dist. R. 707.. .233, 240, 260,283, 314 V. Huntingdon County, 3 Rawle, 487 493 V. Huntzinger, 35 Pittsb. L. J. 364 260, 291 V. Hurd, 177 Pa. 481, 35 Atl. 6S2. .100, 228, 235, 236, 307, 316, 318, 400, 406 V. Hutchinson, 2 Pars. Sel. Eq. Cas. 384 106, 222, 338, 340 V. lokhoff, 33 Pa. 80 108 V. Irwin, 1 Clark (Pa.) 344 321, 322, 445, 440 V. Ivory, 10 Pa. Dist. R. 277, 7 Lack. Legal News, 148 398 V. J—, 21 Pa. Co. Ct. 625 277 V. Jackson, 1 Grant Cas. 262 243, 252, 250, 2li7. 239 Citations. 45 Com. V. Jackson, 1 Pa. Co. Ct. 38, 1 Del. Co. Eep. 80, 13 Lane. Bar, SO. .246, 491 V. Jacobus, 17 Pittsb. L. J. 154, Legal Gaz. Rep. 491 554 V. Jacobus, Legal Gaz. Rep. 491, 2 liCgal Gaz. 78 558 V. Jacques, 1 Pa. Dist. R. 287 407 V. Jaiiwin, 2 Law Times, X. S. 13, S. C. 1 C. P. Rep. 133 169, 239 V. James, 142 Pa. 32, 21 Atl. 805 485, 534 V. Jayiie, 11 Pa. Super. Ct. 459 147 V. Jeandelle, 3 Phila. 509, 16 Phlla. Leg. Int. 364 152 V. Jeimon, 20 Phila. Leg. Int. 165 303 V. Jessup, 63 Pa. 34 313 V. Johns, 5 Kulp, 238 533 V. Johnson, 5 Pa. Co. Ct. 236 405, 407, 408 V. Johnson, 4 Clark (Pa.) 398 262, 278, 322 V. Johnson, 5 Serg. & R. 195 488, 495 V. Johnson, 13 Pa. Co. Ct. 543, 3 Pa. Dist. R. 222 260, 303 V. Johnson, 133 Pa. 293, 19 Atl. 402 310, 432, 440 V. Johnston, 1 Pa. Co. Ct. 22, 16 W. N. C. 349, 33 Pittsb. L. J. 83 539, 568, 571, 573 V. Johnston, 5 Pa. Super. Ct. 585, 41 W. N. C. 92, 28 Pittsb. L. J. N. S. 141 427, 483 V. Johnston, 12 Pa. Co. Ct. 263, 2 Pa. Dist. R. G73 159, 164, 166, 430 V. Johnston, 19 Pa. Super. Ct. 241 279, 314, 326 V. JoUiflfe, 7 Watts, 585 401 V. Jones, 1 Lack. Legal Record, 415 211 V. Jones, 4 W. N. C. 13 402 T. Jones, 90 Pa. 431 192, 485, 486, 534 V. Jongrass, 181 Pa. 172, 37 Atl. 207 407, 418,451 V. Jordan, 25 Pittsb. L. J. 89 496 V. Joyce, 7 Pa. Dist. R. 400 330 V. Justice, 34 Pa. 165 202, 204 V. Kaas, 3 Brewst. (Pa.) 422 248, 253-255, 267, 268, 278, 314, 315, 319, 325, 358 V. Kaiser, 184 Pa. 493, 39 Atl. 299 432, 441 V. Kanunerdiner, 165 Pa. 222, 30 Atl. 929 292, 438, 443 V. Kane, 12 Phila. 630, 35 Phila. Leg. Int. 420 449 V. Kanenheimer, 25 Phila. Leg. Int. 124 196, 197, 203 V. Kaniper, 3 Pa. Co. Ct. 276, 1 Northampton Co. Rep. 29 134 V. Karpowski, 167 Pa. 225, 31 Atl. 572 321, 322 V. Kaufman, 9 Pa. Super. Ct. 310 239, 318, 362, 363 V. Kay, 14 Pa. Super. Ct. 376 263, 267, 392, 419, 427, 428, 429, 484 V. Keane, 21 Pa. Co. Ct. 327 571, 573 V. Keck, 148 Pa. 639, 24 Atl. 161 173, 415 V. Keenan, 67 Pa. 203 247, 253, 300, 315, 493 V. Keenan, 10 Phila. 194, 30 Phila. Leg. Int. 416 254, 260 V. Keeper of Jail, 4 Serg. & R. 505 530 V. Keeper of Prison, 1 Ashm. (Pa. ) 140 120, 221 V. Kcithan, 1 Monaghan, 368 554 V. Keller, 191 Pa. 122, 43 Atl. 198 418, 420 V. Kelly, 9 Phila. 586, 29 Phila. Leg. Int. 412 200, 525, 526 V. Kelly, 13 Phila. 422, 36 Phila. Leg. Int. 124 112 46 Citations. Com. V. Kelly, 10 Lane. Bar, 107 ^IS, 358 V. Kelly, 8 York Legal Record, 9 283 V. Keiidig, 1 Serg. & R. 366 212 V. Kenney, 1 Chester Co. Rep. 322 213 V. Kensey, 3 Clark (Pa.) 233, 2 Pars. Sel. Eq. Cas. 401 289 V. Kerbey, 8 Pa. Dist. R. 671, 30 Pittsb. L. J. N. S. 162 343, 528 V. Kern, 1 Brewst. (Pa.) 350 358 V. Keyes, 4 Pa. Dist. R. 152 HI. H* V. Kilcourse, 1 Del. Co. Rep. 189 500 V. King, 2 Kulp, 386 211, 556, 564, 565, 567 V. Kinter, 1 Wilcox Rep. 3 170, 550, 552, 558, 564, 567 V. Kohl, 17 lianc. L. Rev. 159, 14 York Legal Record, 21 350, 351 V. Kohle, 2 Kulp, 329, S. C. 1 Del. Co. Rep. 479, 12 Luzerne Legal Reg. 139, 15 Lane. Bar, 11 175, 229, 240 V. Kolb, 13 Pa. Super. Ct. 347 265, 309, 483 V. Koons, 1 Kulp, 134 286 V. Koaloff, 5 Serg. & R. 545 105 V. Krause, 8 Phila. 607 409 V. Kressler, 12 Phila. 628, 35 Phila. Leg. Int. 420 314, 321, 324 V. Krubeck, 23 Pa. Co. Ct. 35, 8 Pa. Dist. R. 521, 5 Lack. L. ISfews, 342 147 V. Kryder, 1 Pennyp. 143 223 V. Kuchel, Vaux, 174 104 V. Kulp, 17 Pa. Co. Ct. 561, 5 Pa. Dist. R. 468 236, 237, 248, 407 V. Kunzmann, 41 Pa. 429 124, 125 V. Kyler, 1 Pa. Co. Ct. 159, 17 W. N. C. 123 476 V. Laird, 14 York Legal Record, 128 402, 448, 450 V. Lambrecht, 3 Pa. Co. Ct. 323, 18 Phila. 505, 44 Phila. Leg. Int. 196 311, 325 V. Lancaster, E. &, M. Turnp. Road Co. 2 Lane. L. Rev. 59 101 V. Landis, 8 Phila. 453, Legal Gaz. Rep. 42 426 V. Landis, 12 Phila. 576, 34 Phila. Leg. Int. 204 407, 408 V. Landis, 13 Pa. Super. Ct. 134 270, 277, 467 V. Lansford, 14 Pa. Co. Ct. 376, 3 Pa. Dist. R. 365 331 V. Lansing, 2 Ashm. (Pa. ) 31 270 V. Lapshack, 8 Kulp, 267, 10 York Legal Record, 46 449, 450 V. La Seur, 6 Pa. Co. Ct. 529 540 V. Laubacher, 4 Pa. Co. Ct. 606 347, 560 V. Laudermilch, 1 Pa. Dist. R. 460 131 V. Lavelle, 3 Pa. Co. Ct. 668 127 V. Lederman, 14 Lane. L. Rev. 185 493, 500 V. Leech, 27 Pittsb. L. J. 233 305 V. Lehigh Valley R. Co. 165 Pa. 162, 27 L. R. A. 231, 30 Atl. 836. .231, 332 V. Lehr, 2 Pa. Co. Ct. 341, 18 Phila. 485, 43 Phila. Leg. Int. 425.. 292, 430 V. Lehrsch, 14 Pa. Co. Ct. 496, 3 Pa. Dist. R. 417 492 V. Leigh, 15 Phila. 376, 38 Phila. Leg. Int. 184 2S9, 254, 261, 305, 324 V. Leisenring, 2 Pearson (Pa.) 466 243, 317 V. Leisenring, 11 Phila. 389, 32 Phila. Leg. Int. 160 233,203,269, 284 V. Leisy, 25 Pa. Co. Ct. 593 245 V. Lemley, 2 Pittsb. 362 188 V, Lennom, 1 Browne (Pa.) 40 Appx Ill Citations. *7 Com. V. Lennox, 3 Brewst. (Pa.) 249 246 V. Lenox, 12 Phila. 601, 35 Phila. Leg. Int. 17 Ill V. Lenox, 3 Brewst. (Pa.) 249 317, 32S, 398 V. Leonard, 10 Pa. Dist. R. 573, 58 Phila. Leg. Int. 410, 15 York Legal Eecord, 25 449, 450, 451 V. Lesher, 17 Serg. & R. 155 401 V. Levy, 17 Lane. L. Rev. 103 314 V. Levy, 7 Phila. 303 570 V. Lewis, 4 Lane. L. Rev. 386, 1 Lack. Jur. 213, 4 C. P. Rep. 142 506 v. Lewis, 6 Pa. Super. Ct. 610 , 265 V. Lewis, 140 Pa. 561, 21 Atl. 501 265, 270, 292, 310, 436 V. Lewis, 15 W. N. C. 205 *. 233, 360 V. Liebtreu, 1 Pearson (Pa.) 107 262, 267, 268, 301 V. Light, 10 Pa. Super. Ct. 66, Affirmed in 195 Pa. 220, 45 Atl. 933 428, 483 V. Liller, 12 Lane. Bar, 188 558, 564, 569 V. Linderman, 25 Pa. Co. Ct. 94 415 V. Linderman, 1 Woodw. Dec. 370 493, 494 V. Lindsey, 2 Chester Co. Rep. 268 414, 500 V. Linn, 158 Pa. 22, 22 L. R. A. 353, 27 Atl. 843 278, 303 V. Lippard, 6 Serg. & R 395 370, 373, 374 V. Little, 12 Pa. Super. Ct. 636 484 V. Litzenberger, 15 Phila. 414, 39 Phila. Leg. Int. 198 175, 532 V. Livingston, 18 Pa. Co. Ct. 236, 5 Pa. Dist. R. 666, 27 Pittsb. L. J. N. S. 153 266, 298, 313, 314, 321, 324, 421 V. Lloyd, 141 Pa. 28, 21 Atl. 411 133, 336 V. Loesch, 153 Pa. 502, 26 Atl. 208 430 V. Long, 5 Binn. 489 506 V. Long, 17 Pa. Super. Ct. 641 145, 146 V. Lore, 21 Pa. Co. Ct. 205 491 V. Love, 3 Pa. Co. Ct. 19 503 V. Lovegrove, 10 York Legal Record, 159 299, 327 V. J^vett, 2 Pa. Co. Ct. 375 519 V. Lowry, 14 Phila. Leg. Int. 332 186 V. Lowry, 2 Luzerne Leg. Obs. 409 172, 240 V. Luberg, 94 Pa. 85 106 V. Lucas, 24 Pa. Co. Ct. 126 519 V. Luckness, 14 Phila. 363, 37 Phila. Leg. Int. 83 129 V. Ludwig, 19 Lane. L. Rev. 147 308 V. Lukaa, 10 Pa. Dist. R. 95, 58 Phila. Leg. Int. 79, 7 Lack. Legal News, i 473 V. Luther, 1 Woodw. Dec. 309 199 V. Lutz, 10 Kulp, 231, 200 Pa. 226, 49 Atl. 771 338, 409, 434 V. Lutz, 9 Lane. L. Rev. 241, 5 Del. Co. Rep. 87 265, 281 V. Lydick, 6 Pa. Dist. R. 282 Ill, 115 V. Lynch, 6 Pa. Co. Ct. 536 550, 563, 564 V. Lyon, 4 Dall. 302 108 V.Lyons, 1 Clark (Pa.) 497 128 V. Lyons, 2 Lane. Bar, No. 28 491 V. McAleese, 12 Pa. Co. Ct. 147 654 48 Citations. Com. V. MoAnany, 3 Brewst. (Pa.) 292 190, 196, 199 V. McAndrew3, 8 Kulp, 335 562 V. McAndrews, 3 Lack. Legal News, 339 550, 558, 564 V. McArdle, 3 Pa. Dist. R. 258 493, 501, 519 V. MoBride, 2 Brewst. (Pa.) 545 223 V. McBride, 41 Phila. Leg. Int. 104 408 V. MeCabe, 22 Pa. 450 138, 152 V. McCandlass, 7 Pa. Co. Ct. 51 226 V. McCarthy, 11 Pa. Dist. R. 161, 59 Phila. Leg. Int. 107 219, 318 V. McClpan, 2 Pars. Sel. Eq. Caa. 367 221 V. McClure, 1 Pa. Co. Ct. 182 326 V. McClure, 10 W. N. C. 466 138, 172, 229 V. McComb, 157 Pa. 611, 27 Atl. 794 237, 240, 248, 315, 316 V. McConirell, 2 Pittsb. 210 .' Ill V. McOormick, 5 Pa. Dist. R. 535, 13 Lane. L. Rev. 270, 9 York Legal Record, 205, 6 Del. Co. Rep. 367 304 V. McCracken, 8 Del. Co. Rep. 408 533 V. M'Crossin, 2 Clark (Pa. ) 6 438, 454 V. McCullough, 19 Pa. Super. Ct. 412 342 V. McCurdy, 2 Chester Co. Rep. 381 500 V. McDole, 2 Pa. Dist. R. 370, 10 Lane. L. Rev. 110 283 V. M'Donald, 16 Serg. & R. 390 342 V. M'Ewen, 1 Clark (Pa.) 140 419, 444, 446 V. McFadden, 10 Pa. Dist. R. 718, 10 Kulp, 319 553 V. McFadden, 9 Lane. Bar, 129 211 V. M'Gee, 1 Browne (Pa.) 285 394 V. McGinnis, 2 Whart. 113 108 V. McGowan, 2 Pars. Sel. Eq. Cas. 341 419, 446, 451 V. McGowan, 189 Pa. 641, 42 Atl. 365 426, 481 V. MoHale, 97 Pa. 397, 39 Am. Rep. 808 246, 341, 416, 479, 483 V. Machell, 8 Kulp, 206 495, 520 V. McHenry, 13 Phila. 451, 36 Phila. Leg. Int. 285 189, 196 V. Mcllvain, 17 Pa. Co. Ct. 174, 5 Pa. Dist. R. 175 335 V. Mackin, 9 Phila. 593, 29 Phila. Leg. Int. 85 251, 324 V. MoKisson, 8 Serg. & R. 420, 11 Am. Dec. 630 280, 281 V. McKnight, I Woodw. Dec. 502 201 V. McLaughlin, 5 Lack. Legal News, 32 492 V. McMahon, 14 Pa. Super. Ct. 621 103, 111, 421, 422 V. McMahon, 145 Pa. 413, 22 Atl. 971 430 V. McManiman, 15 Pa. Co. Ct. 495 298, 311, 314, 321, 443 V. MoManus, 143 Pa. 64, 14 L. R. A. 89, 21 Atl. 1018, 22 Atl. 761 426, 429, 430, 432 V. McMenamee, 9 Phila. 596, 29 Phila. Leg. Int. 125 256 V. McMillan, 144 Pa. 610, 22 Atl. 1029 398, 399, 481 V. McMm-ray, 198 Pa. 51, 47 Atl. 952 417^ 423 V. McNair, 3 York Legal Record, 216 500 V. McNall, 1 Woodw. Dec. 423 150, 187, 188 220 V. MoNaugher, 131 Pa. 55, 18 Atl. 934 !....' 479 V. McNerny, 10 Phila. 206, 31 Phila. Leg. Int. 172 34I V. Madden, 153 Pa. 627, 25 Atl. 896 '.'... 575 Citations. 49 Com. V. Madden, 11 Pa. Co. Ct. 459, 1 Pa. Dist. R. 129, 6 York Legal Rec- ord, 28, 8 Montg. Co. L. Rep. 124, 9 Lane. L. Rev. 253 490 V. Magee, 10 Phila. 201, 31 Phila. Leg. Int. 36 427 V. Maher, 16 Phila. 456, 40 Phila. Leg. Int. 120 260, 272, 283, 334 V. Maize, 4 Luzerne Leg. Reg. 171, 1 Legal Record Rep. 14, 7 Legal Gaz. 199 327 V. Major, 198 Pa. 290, 47 Atl. 741 252, 321 V. Maltzberry, 3 Lane. Bar, No. 31 400 V. Manderfield, 8 Phila. 457 232, 259, 302 V. Manfredi, 162 Pa. 144, 29 Atl. 404 370, 373, 40-5 V. Manson, 2 Ashm. (Pa.) 31 208, 270, 273, 357, 444 V. March, 1 Pa. Co. Ct. 81 233, 270, 495 V. Mai-kert, 4 Pa. Dist. R. 520, 1 Lack. Leg. News, 257, 12 Lane. L. Rev. 281 198 V. Markley, 17 Pa. Co. Ct. 254, 5 Pa. Dist. R. 134 535 V. Marra, 8 Phila. 440 440 V. Martin, 2 Pa. 244 262, 354 V. Martin, 16 Pa. Co. Ct. 140 408 V. Martin, 5 Clark (Pa.) 245 298, 321 V. Martin, 7 Pa. Dist. R. 219, 9 Kulp, 09 154 V. Martin, 7 Pa. Co. Ct. 153 120, 544, 580 V. Mathes, 1 Pittsb. 142 311 V. Matiewiez, 17 Pa. Co. Ct. 154, 1 Lack. L. News, 294 196 V. Mattern, 24 Pa. Co. Ct. 655 554 V. Mattern, 24 Pa. Co. Ct. 755 568 V. Matyiewicz, 17 Fd. Co. Ct. 154, 1 Lack. Leg. News, 294 189 V. Matz, 161 Pa. 207, 28 Atl. 1079 429 V. May, 24 Pa. Co. Ct. 546 553, 567 V. Mayloy, 57 Pa. 291 453, 468 V. Meade, 5 Law Times N. S. 123 177 V. Meads, 14 York Legal Record, 132 290 V. Meads, 11 Pa. Dist. R. 10 420 V. Meads, 14 York Legal Record, 130 233, 268, 285, 291 V. Meads (No. 2) 14 York Legal Record, 132 317, 326 V. Meany, 8 Pa. Super. Ct. 224 493 V. Meekes, 15 W. N. C. 450 493 V. Meeser, 19 Pa. Super. Ct. 1 189, 194, 195 V. Megary, 8 Phila. 607 145, 147, 187, 221, 222 V. Mellert, 2 Woodw. Dec. 288 297, 407 V. Menefee, 2 Del. Co. Rep. 55, 14 W. N. C. 170 291, 292 V. Mentzer, 162 Pa. 646, 29 Atl. 720 205, 285 V. Merrick, 2 Dauphin Co. Rep. 120 344 V. Mickel, 2 Phila. 147, 13 Phila. Leg. Int. 238 108 V. Mika, 171 Pa. 273, 33 Atl. 65 432 V. Miles, 21 Pa. Co. Ct. 553, 29 Pittsb. L. J. N. S. 247 231 V. Miller, 2 Pars. Sel. Eq. Cas. 480 256, 259, 268, 272, 283, 315 V. Miller, 2 Ashm. (Pa.) 61 333 V. Miller, 14 York Legal Record, 112 235, 238, 251, 316, 323 V. Miller, Lewis, Crim. Law, 398, 401 43S V. Miller, 6 Pa. Super. Ct. 35, 41 W. N. C. 231 186, 321, 453 Pa. Crim. Proc. — 4. 50 Citations. Com. V. Miller, 4 Luzerne Leg. Reg. 9 552 V. Miller, 3 W. N. C. 301, 34 Phila. Leg. Int. 20, 6 Luzerne Leg. Reg. 87, 8 Lane. Bar, 201 476 V. Miller, 5 York Legal Record, 171 449 V. Miller, 20 Pa. Co. Ct. 183 264 V. Miller, 4 Phila. 210, 17 Phila. Leg. Int. 285 381, 384, 435, 439 V. Miller, 25 Pa. Co. Ct. 491 157 V. Miller, 8 Pa. Co. Ct. 525 213, 536 V. Miller, 139 Pa. 77, 21 Atl. 138 342, 409, 428 V. Miller, 107 Pa. 276 288 V. Milley, 7 Pa. Dist. R. 680, 15 Lace. L. Rev. 321 501 V. Milliman, 13 Serg. & R. 403 438 V. Mills, 3 Pa. Super. Ct. 161 -- 262, 299, 310, 441 V. Miltenberger, 7 Watts, 450 342 V. Mitchell, 6 Pa. Super. Ct. 369, 41 Phila. Leg. Int. 455, 41 W. N. C. 455 448, 483 V. Mohn, 52 Pa. 243, 91 Am. Dec. 153 304 V. Moister, 3 Pa. Co. Ct. 539 234, 240 V. Monroe, 15 Phila. 379, 38 Phila. Leg. Int. 185 468 V. Montague, 25 Pittsb. L. J. 137 Ill, 112 V. Montross, 8 Pa. Super. Ct. 237 232, 234, 238, 332, 334 V. Moorby, 8 Phila. 615 298, 311, 314, 321, 443 V. Moore, 99 Pa. ,570 286, 434, 437, 443, 482, 484, 487 V. Moore, 2 Chester Co. Rep. 358 426 V. Moore, 21 Pa. Co. Ct. 321, 29 Pittsb. L. J. N. S. 195, 12 York Legal Record, 115 508 V. Moore, 20 Phila. 390, 9 Pa. Co. Ct. 501, 48 Phila. Leg. Int. 157 100, 212, 309 V. Moore, 4 Del. Co. Rep. 617, 9 Lane. L. Rev. 92 515, 510 V. Moorehead, 118 Pa. 344, 12 Atl. 424 342 V. Morey, 10 Phila. 460, 30 Phila. Leg. Int. 141, 3 Pittsb. 530. .177,180, 181 V. Morgan, 3 Pa. Co. Ct. 151, 4 Kulp, 193 406, 441 V. Morgan, 9 Kulp, 573 335 V. Morningstar, 144 Pa. 103, 22 Atl. 867 315, 325, 487, 515 V. Morningstar, 12 Pa. Co. Ct. 34, 2 Pa. Dist. R. 41 233 V. Morrison, 193 Pa. 613, 44 Atl. 913. .406, 418, 420, 431, 432, 434, 468, 480 V. Morrissey, 86 Pa. 416 285 V. Morrow, 9 Phila. 583, 29 Phila. Leg. Int. 380 398, 400, 403, 474 V. Morton, 9 Lane. Bar, 79, 6 Luzerne Leg. Reg. 207 327 V. Morton, 12 Phila. 595, 34 Phila. Leg. Int. 438 232, 233, 242, 388, 389, 390 V. Morton, 1 Kulp, 276 380, 383, 384, 388, 389, 395, 448, 455, 473 V. Moses, 15 Pa. Co. Ct. 224, 12 Lane. L. Rev. 46 550, 554 V. Mosier, 135 Pa. 221, 19 Atl. 943 245, 401, 404, 408, 419 V. Moss, 6 Kulp, 31 398, 400, 448, 449, 450 V. Moss, 24 Pa. Co. Ct. 221 234 V. Mouat, 14 Phila. 366, 37 Phila. Leg. Int. 254 251, 260, 283 V. Moyer, 11 W. N. C. 34 246 V. Mudgett, 174 Pa. 211, 34 Atl. 588 421, 422, 429, 432 V. Mulholland, 6 Phila. 280, 24 Phila. Leg. Int. 69 130, 165, 106 V. Mulholland, 11 Phila. 378, 32 Phila. Leg. Int. 83 .' 193 Citations. 51 Com. V. Mulholland, 12 Phila. 608, 35 Phila. Leg. Int. 112 290 V. Mullalley, 3 Law Times N. S. 126 246, 325 V. Mundis, 2 Chester Co. Rep. 381, 1 York Legal Record, 4 489, 500 V. Murphy, 4 Del. Co. Rep. 229, 1 Lack. Jur. 318 490, 491 V. Murphy, 12 Pa. Co. Ct. 131, 1 Lack. Jur. 127, 9 Lane. L. Rev. 294, 4 Del. Co. Rep. 71, 6 York Legal Record, 44 256, 317 V. Murphy, 8 Pa. Co. Ct. 399 426 V. Murr, 7 Pa. Dist. R. 685, 15 Lane. L. Rev. 325 501 V. Murray, 2 Ashm. (Pa.) 41 449, 450 V. Murray, 4 Binn. 487, 5 Am. Dec. 412 208 V. Myers, 137 Pa. 407, 21 Atl. 246 186 V. Myers, 146 Pa. 24, 23 Atl. 164 280, 297 V. Nagle, 19 Lane. L. Rev. 172 553 V. Nathans, 2 Pa. St. 138 529, 530 V. Naylor, 8 Lack. Legal News, 20 307 V. Neely, 2 Chester Co. Rep. 191 336 V. Neely, 6 Lane. L. Rev. 194, 4 Del. Co. Rep. 7 489, 493 V. Neill, 16 Pa. Super. Ct. 210 474 V. Nelson, 1 Lane. L. Rev. 117 ; 507, 534 V. Nesbit, 34 Pa. 398 553, 564, 565 V. New Bethlehem, 15 Pa. Super. Ct. 158 231, 240, 247, 259, 260, 304, 316, 318, 326 V. Newcomer, 49 Pa. 478 285, 313, 443 V. Neweomet, 18 Pa. Super. Ct. 508 224 V. Nicely, 130 Pa. 261, 18 Atl. 737 419, 421, 438, 440 V. Nodgic, 10 Kulp, 305 533 V. Noonan, 15 Phila. 372, 38 Phila. Leg. Int. 184, 13 Lane. Bar. 20.243, 247 V. Norris, 7 York Legal Record, 25, 9 Montg. Co. L. Rep. 143 318 V. North & West Branch R. Co. 5 Kulp, 293 331 V. Norton, 16 Pa. Super. Ct. 423 281, 326 V. Nowland, 10 Serg. & R. 355 197 V. Nutt, 1 Browne (Pa.) 143 213 V. Oakdale Mfg. Co. 6 Pa. Dist. R. 429, 28 Pittsb. L. J. 9 569 V. Oberdorfer, 1 Kulp, 102 306 V. Oblender, 135 Pa. 530, 19 Atl. 1057 191, 193, 197, 203, 204, 484 V. O'Donnell, 12 Pa. Co. Ct. 142, 2 Pa. Dist. R. 131, 23 Pittsb. L. J. N. S. 77 171, 187 V. O'Grady, 4 Pa. Dist. R. 732 490, 493, 494, 496 V. O'Neill, 10 Pa. Dist. R. 227, 58 Phila. Leg. Int. 182, 7 Lack. Leg. News, 149, 18 Lane. L. Rev. 85 104, 131, 166, 443 V. O'Neill, 5 Pa. Co. Ct. 209 308 V. Orr, 138 Pa. 276, 20 Atl. 806 427, 482 V. Orth, 2 Peai-som (Pa.) 446 533 V. Owens, 7 Montg. Co. L. Rep. 144, 5 York Legal Record, 44 114 V. Owens, 3 Kulp, 230 253, 318, 324, 345 V. Page, 6 Pa. Super. Ct. 220 430 V. Painton, 8 Lane. L. Rev. 370 414, 500 V. Painton, 5 York Legal Record, 140 356, 405, 407, 417 V. Pannell, 9 Lane. Bar, 82 412 V. Parker, 146 Pa. 343, 23 Atl. 323 270, 292, 436 62 Citations. Com. V. Parr, 5 Watts & S. 345 315, 439 V. Paschall, 8 Lane. L. Rev. 37 426 V. Patterson, 5 Kulp, 307, 1 Susquehanna Leg. Chronicle, 73 468 V. Patton, 4 Pa. Co. Ct. 135 554, 564 V. Patton, 5 Del. Co. Rep. 290 .118, 508, 515, 541 V. Pavitt, 16 Phila. 478, 40 Phila. Leg. Int. 454 31G V. Paxton, 14 Phila. 665, 36 Phila. Leg. Int. 444, 1 Chester Co. Rep. 138 206, 267, 268 V. Peach, 170 Pa. 173, 32 Atl. 582 431, 455 V. Peiffer, 80 Pa. 191 49-t V. Peiffer, 9 Phila. 593, 29 Phila. Leg. Int. 125 270 V. Pendergast, 138 Pa. 633, 21 Atl. 12 425 V. Peunock, 3 Serg. & R. 199 455, 471, 478 V. Penrod, 1 W. N. C. 65 480 V. Perry, 25 Pa. Co. Ct. 631, 10 Kulp, 360 277 V. Peterson, 4 W. N. C. 87 415 V. Pfaff, 17 Pa. Co. Ct. 302, 5 Pa. Dist. R. 59, 26 Pittsb. L. J. N. S. 254 231, 240 V. Pflueger, 10 Pa. Dist. R. 717, 58 Phila. Leg. Int. 490 .. 333, 409, 444, 501 V. Phelps, 170 Pa. 430, 32 Atl. 1092 546, 553, 561, 575 V. Philadeiphia & R. R. Co. 135 Pa. 256, 19 Atl. 1051 427 V. Philadelphia County, 4 Serg. & R. 541 491) V. Phillips, 8 Kulp, 230 199, 200 V. Phipps, 16 Phila. 469, 40 Phila. Leg. Int. 251 400, 422, 424, 448 V. Phipps, 16 Phila. 457, 40 Phila. Leg. Int. 180 290 V. Pickett, 10 Kulp, 68 535 V. Pierce, 10 Pa. Dist. R. 335, 58 Phila. Leg. Int. 289 447 V. Pine, 2 Clark (Pa.) 154 261, 321 V. Pintard, 1 Browne ( Pa. ) 59 295, 475 V. Pioso, 19 Lane. L. Rev. 145 423 V. Pipes, 158 Pa. 25, 27 Atl. 839 428 V. Pistorius, 12 Phila. 550, 35 Phila. Leg. Int. 164 330, 464 V. Place, 153 Pa. 314, 26 Atl. 620 273, 331, 357 V. Place, 7 Montg. Co. L. Rep. 164 1E8, 348 V. Piatt, 11 Phila. 421, 33 Phila. Leg. Int. 463 447, 451 V. Poots, 43 Phila. Leg. Int. 226 434 V. Porter, 1 Pittsb. 502 303 V. Powers, 17 Pa. Co. Ct. 304 231, 240 V. Preston, 188 Pa. 429, 41 Atl. 534 413, 429, 476, 487 V. Price, 4 Kulp, 289, 3 Pa. Co. Ct. 175 245, 265, 317 V. Priekett, 132 Pa. 371, 19 Atl. 218 467, 473 V. Priestly, 24 Pa. Co. Ct. 543, 10 Pa. Dist. R. 217 239 V. Prophet, 1 Browne (Pa.) 135 361 V. Pulte, 14 Phila. 398, 37 Phila. Leg. Int. 493 362 V. Pyott, 3 Del. Co. Rep. 533, 6 Lane. L. R.ev. r_9 349 ▼. Quay, 7 Pa. Dist. R. 723 281, 314 V. Raffolowitz, 8 Montg. Co. L. Rep. 210 330 V. Railing, 113 Pa. 37, 4 Atl. 459 101, 275 V. Ramsey, 1 Brewst. (Pa.) 422 200, 286, 313, 330 V. Randall, 8 Phila. 373 174, 187, 189 Citations. 53 Com. V. Read, 8 Del. Co. Rap. 52 501 V. Ream, 7 Lane. L. Rev. 187, 4 Del. Co. Rep. 225 232, 234, 23!) V. Ream, 1 Pa. Co. Ct. 33 . . : 246, 490, 500 V. Reber, 10 Pa. Dist. R. 683, 58 Phila. Leg. Int. 477 401, 402, 404, 407, 408, 450, 451 V. Eedshaw, 12 Pa. Co. Ct. 91, 10 Lane. L. Rev. 71, 23 Pittsb. L. J. N. S. 100, 2 Pa. Dist. R. 90 119, 541, 555 V. Reed, 5 Pa. Dist. R. 57 529 V. Reed, 4 Lane. L. Rev. 89 336 V. Reed, 4 Clark (Pa.) 459 303 V. Reid, 5 Kulp, 27 309, 322 V. Reid, 8 Phila. 385 395, 424, 445 V. Reidy, 10 Kulp, 370 229 V. Reiker, 4 Lane. Bar No. 14 330 V. Reilly, 21 Pa. Co. Ct. 160, 9 Kulp, 163 307 V. Reiser, 147 Pa. 342, 23 Atl. 454 570 V. Reisinger, 1 York Legal Record, 8, 1 Chester Co. Rep. 104 491 V. Reiter, 78 Pa. 181 260, 306 V. Rentz, 20 Pa. Co. Ct. 568 371 V. Ressequi, 1 Law Times N. S. 124 558 V. Reynolds, 2 Kulp, 345 234, 238, 239 V. Rhoads, 9 Pa. 488 200, 203 V. Rhoads, 11 Pa. Co. Ct. 42, 1 Pa. Dist. R. 774, 9 Lane. L. Rev. 77 506 V. Ribert, 144 Pa. 413, 22 Atl. 1031 481, 482 v. Rice, 3 Pa. Dist. R. 259. . . , , 493, 509 v. Richards, 131 Pa. 209, 18 Atl. 1007 '. 485, 535 v. Richer, 13 W. N. C. 142 548, 561, 564 V. Ridgway, 2 Pa. Dist. R. 59, 9 Lane. L. Rev. 347, 6 York Legal Record, 76 147, 426, 427 V. Ridgway, 2 Ashm. (Pa.) 247 188, 217, 223 V. Roaring Brook Tump. Co. 1 Lack. Jur. 351 101 V. Roberts, 21 Pittsb. L. J. 173 387 v. Roberts, 22 Pa. Co. Ct. 214 327 V. Robins, 7 Kulp, 108 450 V. Robins, 26 Pa. 165 202 V. Robinson, 1 Serg. & R. 353 208, 212 V. Robinson, 3 Pittsb. 546 460, 503 V. Rockafellow, 3 Pa. Super. Ct. 588 336 V. Rockafellow, 163 Pa. 139. 29 Atl. 757 285 V. Roddy, 184 Pa. 274, 39 Atl. 211 399, 483 V. Roddy, 19 Pa. Co. Ct. 321 446 V. Rogers, 1 Del. Co. Rep. 517 315 V. Rogers, 1 Serg. & R. 124 288 V. Rogers, 15 Pa. Super. Ct. 461 478, 485 V. Rogers, 10 Phila. 187, 30 Phila. Leg. Int. 201 448, 449, 450 V. Roland, 18 Lane. L. Rev. 25 136, 316 V. Ronnianek, 12 Pa. Super. Ct. 86 247 V. Roop, 15 W. N. C. 419 171 V. Rosa, 1 Lack. Legal News, 335 446, 449, 450 V. Rose, 1 fork Legal Record, 125 448, 449, 450 54 Citations. Com. V. Rosenberg, 1 Pa. Co. Ct. 273, 1 Lehigh Valley L. R. 181, 3 Lane. L. Rev. 75 260, 287, 327 V. Rosenkranz, 1 Lack. Jur. 455 182, 335 V. Rosenthal, 3 Pa. Co. Ct. 26 554, 571 V. Rosenthal, 3 Pa. Co. Ct. 669 571, 572 V. Ross, 7 Lane. L. Rev. 342, 1 Lack. Jur. 217 607 V. Ross, 6 Serg. & R. 427 170, 187, 190 V. Roth, 8 Pa. Super. Ct. 220 316, 319, 480, 482, 483 V. Ruane, 1 C. P. Rep. 41 251, 260 V. Ruch, 10 Pa. Dist. R. 648, 14 York Legal Record, 199, 8 Del. Co. Rep. 167, 7 Northampton Co. Rep. 368 490 V. Ruddle, 142 Pa. 144, 21 Atl. 814 427 V. Ruff, 3 Pa. Dist. R. 561 142, 195, 197, 533 V. RuflF (No. 2) 3 Pa. Dist. R. 562 533 V. Ruffner, 28 Pa. 259 338, 341, 344, 346 V. Rupp, 9 Watts, 114 306 V. Rupple, 1 Pa. Co. Ct. 663, 3 Lane. L. Rev. 280 308 V. Rush, 11 Lane. L. Rev. 97 342 V. Rush, 11 Lane. L. Rev. 164 369, 370 V. Rusk, 7 W. N. C. 486 188 V. Ruth, 104 Pa. 294 480 V. Ryan, 2 Del. Co. Rep. 225, 2 Lane. L. Rev. 24, 7 Law Times, N. S. 7 546,563 V. Ryder, 12 Lane. L. Rev. 97 308, 309, 316 V. Saal, 10 Phila. 496, 30 Phila. Leg. Int. 194 176 V. Saeger, 22 Pa. Co. Ct. 169 572, 573 V. Sallager, 3 Clark (Pa.) 127 386,400,406,426,446, 44S V. Saloton, 17 Pa. Co. Ct. 152, 1 Lack. Legal News, 296 198 V. Salter, 2 Pearson (Pa.) 461. . .243, 244, 245, 247, 317, 380, 382, 384, 387 V. Salyards, 158 Pa. 501, 27 Atl. 993 407, 409 V. Sarves, 17 Pa. Super. Ct. 407 422 V. Sassaman, 2 Del. Co. Rep. 333 555, 572, 574 v. Saulsbury, 152 Pa. 554, 25 Atl. 610 307 v. Sehall, 12 Pa. Co. Ct. 554 493, 494 V. Sehall, 6 York Legal Record, 25, S. C. 5 York Legal Record, 137, 9 Lane. L. Rev. 332 137, 233, 239, 245, 247, 266, 268, 284, 285, 316, 564, 569 V. Schaub, 3 Kulp, 26, 6 Law Times N. S. 123 264 V. Schaufert, 3 Lane. L. Rev. 43 440 V. Schellenberger, 15 York Legal Record, 201 446 V. Schench, 8 Kulp, 487 53.^ V. Schmidt, 13 Pa. Co. Ct. 28 553 V. Schmous, 162 Pa. 326, 29 Atl. 644 409 V. Schrounck, 26 Pa. Co. Ct. 113, 11 Pa. Dist. R. 115, 32 Pittsb. L. J. N. S. 235, 18 Montg. Co. L. Rep. 48 131 V. Schoenhutt, 3 Phila. 20, 15 Phila. Leg. Int. 4 265, 301 V. Schoeppe, Legal Gaz. Rep. 450 449 V. Sehollenberger, 153 Pa. 625, 25 Atl. 999 553, 575 V. Sehollenberger, 17 Pa. Super. Ct. 218 359, 443, 448, 454, 480 V. Schull, 1 Pa. Co. Ct. 52 3U Citations. 63 Com. V. Schweitzer, 1 Northampton Co. Hep. 375, 1 Lehigh Valley L. E. 21 548, 554 V. Scott, 25 Pa. Co. Ct. 210 118, 473, 556, 559 V. Scott, 7 Pa. Super. Ct. 590, 42 W. N. C. 407, 29 Pittsb. L. J. N. S. 77 349 V. Scott, 8 Pa. Diat. E. 367 567 V. Scott, 28 Pittsb. L. J. 446 560, 571 V. Seamans, 3 Law Timea N. S. 133 177 V. Searle, 2 Binn. 332, 4 Am. Dec. 446 267, 291, 454 V. Seeman (Pa.) 12 Cent. Eep. 571, 14 Atl. 329 333 V. Seiders, 1 Pa. Dist. E. 264 197 V. Selznick, 20 Pa. Co. Ct. 128 520 V. Senft, 6 Del. Co. Eep. 37, 8 York Legal Record, 65, 3 Lack. Jur. 378. 563 V. Sentman, 12 Lane. Bar. 191 291 V. Seybert, 4 Pa. Co. Ct. 152 380, 385, 386 V. Seybert, 4 Kulp, 4 419, 449, 450 V. Seymour, 2 Brewst. (Pa.) 567 253, 318, 324, 345, 351 V. Shaffer, 128 Pa. 575, 18 Atl. 390 295 V. Shaffer, 178 Pa. 409, 35 Atl. 924 415 V. Shaffner, 2 Pearson (Pa.) 450 251, 324 V. Shannon, 1 Pittsb. 261, 266 ,. 439 V. Sharp, 7 Lace. L. Rev. 58 489, 500 V. Sharpless, 2 Serg. & E. 91, 7 Am. Dec. 632 304, 305 V. Shaub, 5 Lane. L. Rev. 121 268, 272, 314 V. Shaub, 7 Lane. L. Eev. 189 490 V. Shaum, 17 Lane. L. Rev. 319, 8 Del. Co. Rep. 50, 14 York Legal Record, 91 , 491 V. Shaw, 1 Pittsb. 492 410 v. Shaw, 22 Pa. Co. Ct. 414, 8 Pa. Dist. R. 509 129 V. Sheets, 197 Pa. 69, 46 Atl. 753 428, 4S1, 438, 440 V. Shell, 1 Pa. Co. Ct. 41 518 V. Shelly, 2 Kulp, 300 261 V. Shepherd, 6 Binn. 283, 6 Am. Dec. 449 419, 446 V. Sheridan, 7 Lack. Legal News, 373 336 V. Sheriff, 10 Pa. Co. Ct. 341, 9 Lane. L. Eev. 6 171, 220, 221, 222 V. Sherry, Wharton, 481 400, 401 V. Shertzer, 13 Lane. L. Eev. 46 287, 288 V. Shew, 8 Pa. Dist. R. 484 374, 376, 387, 388 V. Shick, 61 Pa. 495 200, 202, 526 V. Shindell, 9 Pa. Dist. R. 298, 16 Lane. L. Eev. 407 494 V. Shindell, 16 Lane. L. Eev. 407, 9 Pa. Dist. R. 298 506 V. Shirley, 152 Pa. 170, 25 Atl. 819 650 V. Shisler, 2 Phila. 256 525, 526 V. Shissler, 7 Pa. Dist. R. 341 232, 233, 234, 247, 268, 269, 270, 271, 284, 286, 287, 298, 299 V. Shissler, 9 Phila. 587, 29 Phila. Leg. Int. 76 269, 290 V. Shivers, 15 Pa. Super. Ct. 579 480 V. Shofnoski, 5 Pa. Dist. E. 784 550, 560 V. Shopp, 1 Woodw. Dec. 123 540 V. Showalter, 15 Lane. L. Rev. 78 550, 552, 573 56 Citations. Com. V. Showers, 7 Pa. Co. Ct. 179 501 V. Shubel, 4 Pa. Co. Ct. 12 320 V. Shupp, 6 Kulp, 430 229, 238 V. Shutte, 130 Pa. 272, 18 Atl. 635 114, 269 V. Sifred, 31 Pittsb. L. J. 351, 2 Chester Co. Rep. 235 507 v. Silcox, 161 Pa. 484, 29 Atl. 105 412, 428, 429, 430 V. Silliman, 8 Lack. Legal News, 9, 15 York Legal Record, 205. . . .265, 278 V. Simons, 6 Phila. 167, 23 Phila. Leg. Int. 5 233, 234, 239 V. Simpson, 2 Grant Cas. 438 108 V. Sisco, 10 Kulp, 412 450 V. Skeels, 13 Pa. Co. Ct. 174, 2 Pa. Dist. R. 761 '. 335, 338 V. Skupinsld, 9 Phila. Leg. Int. 54 357 V. Sminkey, 12 York Legal Record, 154, 7 Del. Co. Rep. 353, 5 Lack. Legal News, 45 i 446 V. Smith, 1 Clark (Pa.) 400 130 V. Smith, 2 Serg. & R. 300 380 V. Smith, 4 Phila. 421, 17 Phila. Leg. Int. 394 198 V. Smith, 10 Phila. 189, 30 Phila. Leg. Int. 201 422 V. Smith, 11 Lane. L. Rev. 350, Affirmed in 4 Pa. Super. Ct. 1, 14 Lane. L. Rev. 159 242, 285 V. Smith, 2 Pa. Super. Ct. 474, 39 W. N. C. 181 421, 483 V. Smith, 4 Pa. Co. Ct. 321 518, 519 V. Smith, 16 Pa. Co. Ct. 577, 12 Lane. L. Rev. 337 370, 373, 378, 381 V. Smith, 16 Pa. Co. Ct. 568, 12 Lane. L. Rev. 329 346 v. Smith, 19 Pa. Co. Ct. 397 344 V. Smith, 23 Pa. Co. Ct. 491 119, 178, 316 V. Smith, 185 Pa. 553, 40 Atl. 73 113 V. Smith, 200 Pa. 363, 49 Atl. 981, Affirming 13 Pa. Super. Ct. 358 485 V. Smythe, Brightly's Digest, col. 3186 142 V. Snyder, 2 Pa. Co. Ct. 260 100 V. Snyder, 4 Pa. Co. Ct. 261 476 V. Snyder, 13 Pa. Co. Ct. 660, 4 Northampton Co. Rep. 95 113, 120 V. Snyder, 2 Luzerne, Leg. Obs. 354 113 V. Sober, 15 Pa. Super. Ct. 520 265, 288, 479, 483 V. Solby, 15 W. N. C. 392 266 V. Solby, 18 Phila. 429, 42 Phila. Leg. Int. 27, 15 W. N. C. 392. . . .C34, 436 V. SoUenberger, 11 Lane. L. Rev. 235 501 V. Somers, 1 Northampton Co. Rep. 2S9 100, 212, 222, 309 V. Somers, 14 Pa. Co. Ct. 159, 3 Lack. Jur. 185 190 V. Sorber,, 5 Kulp, 373 467, 551, 558 V. Spattenhover, 8 Luzerne Leg. Reg. 101 246, 446 V. Speidel, 10 Lane. L. Rev. 390 193 V. Spencer, 6 Pa. Super. Ct. 256 132, 481, 482, 483 V. Sperling, 5 Kulp, 497, 8 Pa. Co. Ct. 491 533 V. Spink, 137 Pa. 255, 20 Atl. 680 392, 435, 440 V. Bponsler, 16 Pa. Co. Ct. 116, 1 Lack. Legal News, 61 470 V. Spratt, 14 Phila. 365, 37 Phila. Leg. Int. 234 278 V. Sprecher, 1 Iianc. L. Rev. 187 478 V. Spring, 5 Clark (Pa. ) 238 380, 408 V. Springer, 2 Del. Co. Rep. 6, 14 W. N. C. 26 120 Citations. 57 Com. V. Springs, 2 Legal Gaz. 93 131 V. Stacey, 8 Phila. 617 ., 300, 301, 325 V. Stahl, 1 Pa. Super. Ct. 496, 38 VV. N. C. 339 435, 4fi7 V. Stanley, 12 Pa. Co. Ct. 543, 23 Pittsb. L. J. N. S. 256, 2 Pa. Dist. R. 330 46!) V. Stanley, 19 Pa. Super. Ct. 58 327, 424, 425, 427 V. Starr, 36 Pittsb. L. J. 334 264, 303, 400 V. Statzer, 5 Pa. Co. Ct. 256 103, 114, 119, 220, 541 V. Stauffer, 12 Lane. L. Rev. 361 417, 428 V. Steele, 2 Chester Co. Rep. 380 491, 500 V. Steen, 1 Pa. Super. Ct. 624 293 V. Steflfner, 2 Pa. Dist. R. 152, 10 Lane. L. Rev. 92 420 V. Stegmaier, 5 Kulp, 502 198 V. Steiger, 12 Pa. Co. Ct. 334, 2 Pa. Dist. R. 493, 10 Lane. L. Rev. 11 . . 343, 532, 533, 534 V. Steimling, 156 Pa. 400, 27 Atl. 297 333, 444, 447, 479 V. Stephenson, 9 Kulp, 561 330 V. Sterling, 10 Lane. L. Rev. 41 132 V. Stewart, 1 Serg. & R. 342 282 V. Stewart, 12 Pa, Co. Ct. 151, 2 Pa. Dist. R. 43, 23 Pittsb. L. J. N. S. 59 274, 313 V. Stififel, 7 Lane. L. Rev. 193 489 V. Stiles, 7 Pa. Co. Ct. 665 294, 556 V. Still, 9 York Legal Record, 73 319, 444, 445, 448 v. Still, 11 York Legal Record, 6 : 203 V. Stillwagon, 13 Pa. Super. Ct. 547 479 V. Stinger, 15 Phila. 375, 38 Phila. Leg. Int. 184, 13 Lane. Bar, 30.270, 271 V. Stirk, 5 Lane. L. Rev. 415 146 V. Stiver, 1 Pa. Co. Ct. 526 437 V. Stodler, 15 Phila. 418, 39 Phila. Leg. Int. 384 456, 554, 558 V. Stoever, 1 Serg. & R. 480 120, 472 V. Stokes, 4 York Legal Record, 187 402, 403, 404 V. Stokes, 3 York Legal Record, 220 408 V. Stoner, 14 Lane. L. Rev. 182 288 V. Strayer, cited in Com. v. Ahl, 43 Pa. 61 475 V. Stritzman, 6 Pa. Co. Ct. 390 494 V. Sullivan, 13 Phila. 410, 36 Phila. Leg. Int. 434, aff'd in 93 Pa. 284. 419, 446 V. Swallow, 8 Pa. Super. Ct. 539 233, 234, 238, 300, 430, 480, 482, 483 V. Swayue, 1 Pa. Super. Ct. 547 428, 432, 433, 482 V. Sweet, 16 Pa. Co. Ct. 198, 4 Pa. Dist. R. 136 410 V. Sweney, 10 Serg. & R. 173 301 V. Swift Bros. 17 Pa. Co. Ct. 95 571, 572, 573 V. Swihart, 138 Pa. 629, 21 Atl. 11 431 V. Switzer, 134 Pa. 383, 19 Atl. 681 428, 487 V. Sylvester, Brightly (Pa.) 331, 4 Clark (Pa.) 31 270, 467 V. Tack, 1 Brewst. (Pa.) 511 132 V. Tack, 3 Brewst. (Pa.) 532, 8 Phila. 463 498, 499 V. Tadrick, 1 Pa. Super. Ct. 555, 38 W. N. C. 215 333 V. Tanner, 7 Northampton Co. Rep. 74 327 68 Citations. Cam. V. Taylor, 11 Phila. 386, 32 Phila. Leg. Int. 142 140, 221 V. Taylor, 1 Chester Co. Eep. 263 195, 201 V. Taylor, 129 Pa. 534, 18 Atl. 558 399 V. Taylor, 12 Pa. Co. Ct. 326, 2 Pa. Dist. 743 .100, 238 V. Taylor, 2 Kulp, 364 320 V. Taylor, 5 Legal Opinion, 20 428 V. Teamann, 1 Phila. 460, 10 Phila. Leg. Int. 167 152 V. Teeter, 1 Lack. Jut. 28 285 V. Texter, 2 Browne (Pa.) 247 419 V. Thomr.s, 1 Pittsb. 279 421, 449, 450 V. Thompson, 18 Pa. Co. Ct. 487 413, 453, 468, 490, 492, 501, 508 V. Thompson, 4 Phila. 215, 17 Phila. Leg. Int. 309 403, 404, 405, 408, 444, 449, 450 V. Thompson, 9 Pa. Dist. E. 559, 24 Pa. Co. Ct. 179 153 V. Thompson, 110 Pa. 297, 1 Atl. 375, Affirming 3 Kulp, 458. .123, 543, 575 V. Thum, 10 Serg. & R. 418 113 V. Thurmaji, 1 Docket, 97 117 V. Tilghman, 4 Serg. & R. 127 442, 488, 493, 495 V. Titus, 3 Brewst. (Pa.) 165 414 V. Todd, 1 Pa. Co. Ct. 416 392, 444, 501 V. Toogood, 4 Pa. Co. Ct. 282 320 V. Toran, 3 Clark ( Pa. ) 346, 2 Pars. Sel. Eq. Cas. 411 289 V. Torrey, 1 Legal Record Eep. 298, 12 Lane. Bar, 72 497, 519 V. Toth, 145 Pa. 308, 22 Atl. 157 400 V. Townley, 7 Pa. Dist. E. 413, 29 Pittsb. L. J. N. S. 4 261 V. Trach, 3 Pa. Co. Ct. 65 131, 164, 165, 212, 221, 226 V Tragle, 4 Pa. Super. Ct. 159, 40 W. N. C. 350 485, 532 V. Trimmer, 84 Pa. 65 334 T. Trout, 16 Phila. 649, 40 Phila. Leg. Int. 101, 2 Kulp, 377, 2 Chester Co. Eep. 81, 1 Del. Co. Rep. 493, 14 Lane. Bar, 166 506 V. Troxell, 6 Kulp, 160 572 V. Tuck, 1 Breiwst. (Pa.) 511 221 V. Turkes, 3 Pa. Co. Ct. 419 320 V. Turner, 1 Lane. L. Rev. 118 507 V. Turnpike Co. 1 Lack. Legal Record, 487 547 V. Twitchell, 1 Brewst. (Pa.) 561 244, 248, 296, 389, 392 409, 419, 421, 428, 432, 433, 446, 443 V. Usner, 16 Lane. L. Eev. 121 287 V. Usner, 7 Lane. L. Eev. 57 247, 287 V. Valsalka, 181 Pa. 17, 37 Atl. 405 369, 376, 385, 386, 401, 418 V. Van Gorder, 10 Lane. Bar, 205, 1 Law Times, N. S. 113 506 V. Van Horn, 188 Pa. 143, 41 Atl. 469 397, 398, 401, 409, 411, 418, 421, 429, 432, 481, 482, 484 V. Van Horn, 4 Lack. Legal News, 63, Affirmed in 188 Pa. 143, 31 Atl. 469 450 V. Van Sickle, 4 Clark (Pa.) 104 322, 342 V. Van Sickle, Brightly (Pa.) 69, 4 Clark (Pa.) 104 101 V. Vickers, Brightly's Digest, col. 492 317 V. Vickers, O. & T. Phila. 1847 256 V. Vogan, 24 Pa. Co. Ct. 70, 17 Lane. L. Rev. 320 491 Citations. 69 Com. V. Volkaviteh, 5 Kulp, 75 326 V. Volz, 14 W. N. C. 289 255, 324 V. Wagner, 1 York Legal Record, 24 500 V. Waldman, 140 Pa. 89, 11 L. E. A. 563, 21 Atl. 248 539, 574 V. Walker, 2 Pa. Dist. R. 727 132, 475 * V. Walker, 15 Pa. Co. Ct. 418, 3 Pa. Dist. R. 348 336 V. Wall, 4 Pa. Dist. R. 326, 1 Lack. Legal News, 45 532 V. Wallace, 7 Pa. Super. Ct. 405, 42 W. N. C. 187 333, 444, 447, 479 V. Wallace, 114 Pa. 405, 60 Am. Rep. 353, 6 Atl. 685 287, 479, 483 V. Walsh, 7 Lack. Leg. News, 362 101, 278 V. Walton, 1 Northampton Co. Rep. 289 217 V. Ward, 5 Pa. Co. Ct. 479 533 V. Ward, 2 Legal Opinion, 22 396 V. Ware, 137 Pa. 465, 20 Atl. 806 397, 424, 481, 486 V. Wamagiris, 8 Kulp, 412 300 V. Warner, 17 Pa. Co. Ct. 556 231, 283 V. Warner, 13 Pa. Super. Ct. 461 426, 432, 482 V. Washington, 202 Pa. 148, 51 Atl. 759 429 V. Wasson, 29 Pittsb. L. J. 434, 2 York Legal Record, 211 320 V. Watrous, 1 C. P. Rep. 33 308, 324 V. Watrous, 1 Lack. Legal Record, 431, 1 Law Times N. S. 153, 1 C. P. Rep. 21 256, 305 V. Watts, 21 Pa. Co. Ct. 556 508 V. Wayland, 8 lack. Leg. News, 22 239, 279, 305 V. Weathers, 7 Kulp, 1 144 V, Weathers, 1 Pa. Dist. R. 784, 6 Kulp, 486, 6 York Legal Record, 64. 448 V. Weaver, 2 Pa. Co. Ct. 455 493 V. Weber, 7 Lane. L. Rev. 172 490 V. Weber, 167 Pa. 153, 31 Atl. 481.244, 392, 413, 418, 420, 445, 481, 482, 485 V. Weiderhold, 112 Pa. 584, 4 Atl. 345 276, 277 v. Weitzel, 1 York Legal Record, 59 304 V. Weller, 1 Northampton Co. Rep. 271 334, 435, 440 V. Wentz, 1 Ashm. (Pa.) 269 258, 261, 292 V. Werbine, 1 Chester Co. Rep. 188 436 V. Werner, 5 Pa. Super. Ct. 249, 41 W. N. C. 48 253, 318, 344, 345 V. Wemtz, 161 Pa. 591, 29 Atl. 272 428, 483 V. Westcott, 4 C. P. Rep. 58 239, 318 V. Westervelt, 11 Phila. 461, 32 Phila. Leg. Int. 346 132, 270, 297 V. Whitaker, 25 Pa. Co. Ct. 42 239 V. White, 18 Phila. 496, 44 Phila. Leg. Int. 26 137, 289 V. Wickert, 19 Pa. Co. Ct. 251, 6 Pa. Dist. R. 387, 5 Northampton Co. Rep. 387 261, 309 V. WickSi 2 Pa. Dist. R. 17 349 V. Wigoner, 1 Kulp, 66, 1 York Legal Record, 34 550 V. Wilkesbarre, 1 Kulp, 487 264 V. Williams, 2 Del. Co. Rep. 204, 6 Law Times, N. S. 187, 1 Lane. L. Rev. 366. 137, 142, 532 V. Williams, 2 Ashm. (Pa.) 69 449, 450 V. Williams, 149 Pa. 54, 24 Atl. 158 253, 254, 256, 262, 308, 313, 315, 317, 325, 4S3 60 Citations. Com. V. Williamson, 19 Phila. 566, 46 Phila. Leg. Int. 281 4,35, 440, 447 V. Wilmarth, 7 Luzerne Legal Reg. 197, 1 Susquehanna Legal Chron- icle, 45 531 V. Wilson, 9 Pa. Co. Ct. 24, 6 Kulp, 40 245, 317 V. Wilson, 1 Phila. 80 165 V. Wilson, 11 Lane. Bar, 114 * 308 V. Wilson, 1 Chester Co. Rep. 538 281, 327 V. Wilson, 2 Chester Co. Kcp. 164 136, 229, 236 V. Wilson, 36 Pittsb. L. J. 332 117, 239 V. Wilson, 2 Montg. Co. L. Rep. 119 487 V. Wilson, 186 Pa. 1, 40 Atl. 283 418, 419, 481, 482 V. Winchester, 3 Clark (Pa.) 34 118, 541, 545 V. Windish, 176 Pa. 167, 34 Atl. 1019 317, 386, 421, 422 V. Winkelman, 12 Pa. Super. Ct. 497 426, 431 V. Winnemore, 1 Brewst. (Pa.) 356 360, 449, 450 V. Winnemore, 2 Brewst. (Pa. ) 378 402 V. Winskey, 1 Pa. Co. Ct. 77 497 V. Winslow, 7 Pa. Co. Ct. 667 294, 556 V. Winters, 18 Phila. 667, 42 Phila. Leg. Int. 344, 1 Pa. Co. Ct. 537 .. . 333 V. Wintersteen, 19 Pa. Co. Ct. 443, 6 Pa. Dist. R. 641 171 V. Wire, 5 York Legal Record, 11 449 V. Wireback, 190 Pa. 138, 42 Atl. 542 397 V. Wireback, 192 Pa. 150, 44 Atl. 1102 465, 484 V. Wishart, 8 Legal Gaz. 137 341 V. Witmer, 6 Kulp, 304, 5 York Legal Record, 43 489, 501 V. W. M. W. 3 Pittsb. 462 275 V. Wohlgemuth, 9 Phila. 582, 29 Phila. Leg. Int. 364 232 V. Wolf (No. 1 ) 19 Lane. L. Rev. 90 554, 568 V. Wolf (No. 2) 19 Lane. L. Rev. 92 553 T. Wolf, 3 Csrg. & R. 48 545, 554, 558 V. Wolfinger, 7 Kulp, 537, 16 Pa. Co. Ct. 257 132, 300, 301, 423 V. Wood, 3 Birni. 414 518 V. Wood, 13 Pa. Co. Ct. 477, 7 Kulp, 141, 2 Pa. Dist. R. 823 303 V. Wood, 2 Pa. Super. Ct. 42 263, 290 V. Wood, 17 Pa. Co. Ct. 133, 5 Pa. Dist. R. 179, 26 Pittsb. L. J. N. S. 181, 1 Lack. Legal News, 404 264, 266, 346 V. Woodcroft, 17 Pa. Co. Ct. 554 137, 245 V. Woodrun, 4 Clark (Pa.) 207 293, 294 V. Woodward, 1 Chester Co. Rep. 102 344 V. Work, 3 Pittsb. 493 398, 400 V. Worrall, 1 Pa. Co. Ct. 42 518 V. Wright, 7 York Legal Record, 62 419 V. Wright, 11 Pa. Dist. R. 144 277, 296 V. Wright, 126 Pa. 464, 17 Atl. 620 211, 216, 468 V. Yeager, 3 Pa. Dist. R. 237 600 V. Y^etter, 1 York Legal Record, 135 387 V. Yot Sing, 7 Kulp, 349 446, 449, 450 V. Youlls, 5 Kulp, 231 253, 272, 283, 350 V. Young, 25 Pa. Co. Ct. 655, 10 Kulp, 361 535 V. Young, 16 Pa. Co. Ct. 540, 13 Lane. L. Rev. 152, 8 Kulp, 111 5C7 Citations. 61 Com. V. Zappe, 153 Pa. 498, 26 Atl. 16 421, 432, 482 V. Zeidler, 2 Lack. L. News, 356 192 V. Zell, 14 Lane. L. Rev. 168 492, 494 V. Zephon, 8 Watts & S. 382 354 V. Zepp, 3 Clark (Pa.) 311 335 V. Ziegler, 9 KiUp, 531, 7 Del. Co. Rep. 548, 17 Lane. L. Eev. 149, 14 York Legal Record, 71 501 V. Ziert, 4 Pa. Co. Ct. 394, 5 Lane. L. Rev. 138 272 V. Zuern, 24 Pa. Co. Ct. 264, 10 Pa. Dist. R. 26 407, 448 V. Zuern, 16 Pa. Super. Ct. 588 371, 420 Com. ex rel. Thrash v. Airey, 5 Kulp, 83 : 212 Drummond v. Ashton, 8 W. N. C. 563 213 Boles V. Bane, 21 Pa. Co. Ct. 662, 8 Pa. Dist. R. 518, 15 Montg. Co. L. Rep. 50, 29 Pittsb. L. J. N. S. 307 213 Goerlitz v. Barney, 4 Brewst. (Pa. ) 408 , 213 Becker v. Becker, 11 Pa. Dist. R. 182, 59 Phila. Leg. Int. 128 216 Biekel v. Bennett, 18 Phila. 432, 42 Phila. Leg. Int. 56, 15 W. N. C. 515 462, 463 Johnson v. Betts, 76 Pa. 465 564, 568, 575 Dougherty v. Biddle, Brightley (Pa.) 447, 4 Clark (Pa.) 35 208, 209 Markley v. Bierer, 2 Pittsb. 380 209 Hartman v. Blair County Jail Warden, 8 Pa. Dist. R. 159, 21 Pa. Co. Ct. 488, 29 Pittsb. L. J. N. S. 258, 15 Montg. Co. L. Rep. 19, 7 Del. Co. Rep. 331 152 Leake v. Blake, 8 Phila. 523 208 Parker v. Blatt, 165 Pa. 213, 30 Atl. 674 224, 480, 484 Rasmus v. Brower, 20 Pa. Co. Ct. 405, 7 Pa. Dist. R. 254, 9 Kulp, 317 117, 211 Smith V. Butler, 19 Pa. Super. Ct. 626 208, 224, 484 Menges v. Camac, 1 Serg. & R. 87 208 Chew V. Carlisle, Brightly (Pa.) 36 220 Sewickley v. Challis, 8 Pa. Super. Ct. 130 569 McCabe v. Christopher, 22 Pa. 450 209 Davis V. demons, 18 Pa. Co. Ct. 447, 5 Pa. Dist. R. 670, 2 Lack. Legal News, 327 212, 210 Brookes v. Connell, 13 Pa. Co. Ct. 103, 2 Pa. Dist. R. 319 210 Gear v. Conrow, 2 Pa. 402 212 Atty. Gen. v. Coyngham, 65 Pa. 76 543 McCoy V. County Prison Superintendent, 14 W. N. C. 171 560 Volpe V. County Prison Superintendent, 5 Pa. Dist. R. 635 144, 152 McGurk V. County Prison Superintendent, 97 Pa. 211 362, 363 Thornton v. Courtney, 174 Pa. 23, 34 Atl. 300 572, 574 Jack V. Crans, 2 Clark (Pa.) 172 221, 248 Weevil v. Curby, 3 Brewst. (Pa,) 610, 8 Phila. 372 214 Webb V. Davis, 10 Pa. Co. Ct. 596, 1 Pa. Dist. R. 173, 29 W. N. C. 500 100, 212, 222 Murphy v. Davison, 9 Kulp, 491 572, 574 Morton v. Deacon, 8 Serg. & R. 72 209 Demot v. Demot, 7 Phila. 624, 64 Pa. 305 213, 533 Norton v. Devine, 3 Lack. Legal News, 202 213 62 Citations. Com. ex rel. McCormiek v. Dugan, 13 Pa. Co. Ct. 83, 2 Pa. Dist. R. 772, 7 Kulp, 66, 10 Lane. L. Rev. 257 212 Titus V. Fenicle, 5 Northampton Co. Bep. 185 220 Reeder v. Fenicle, 20 Pa. Co. Ct. 68, 6 Pa. Dist. R. 789, 6 Northampton Co. Rep. 94 217 O'Donnell v. Fitzpatrick, 18 Pa. Co. Ct. 15, 5 Pa. Dist. R. 309 213 Wilson V. 14 Hogs, 10 Serg. & R. 393 556, 575 Webster V. Fox, 7 Pa. 336 208 Thornley v. Friends' Home for Children, 22 Pa. Co. Ct. 61, 7 Pa. Dist. R. 653 218, 219 Cozzens v. Frink, 13 Pittsb. L. J. 127, 13 Am. L. Reg. 700 225 Bressler v. Gane, 3 Grant Caa. 447 207, 208 Gilkeson v. Gilkeson, 1 Phila. 194 213 Glenn v. Gill, 10 Pa. Co. Ct. 71, 27 W. N. 0. 311, 48 Phila. Leg. Int. 34 216, 217 Beriy v. Grier, 9* Pa. Co. Ct. 444, 21 Pittsb. L. J. N. S. 312 513 Burleigh v. Grier, 152 Pa. 176, 25 Atl. 624 514, 515 Crosse v. Halloway, 44 Pa. 210, 84 Am. Dec. 431 525, 526 Johnson v. Halloway, 42 Pa. 446, 82 Am. Dec. 526 221, 469 Perry v. Heintzer, 13 W. N. C. 129 100, 212, 309 Allegheny County v. Hendley, 7 Pa. Super. Ct. 356, 28 Pittsb. L. J. N. S. 401 574, 576 Hanlon v. Hill, 3 Pa. Dist. R. 216, 12 Pa. Co. Ct. 559, 23 Pittsb. h. J. N. S. 357 567 Conrad v. House of Refuge, 8 Phila. 614 460 Davenport v. House of Refuge Superintendent, 2 W. N. C. 691 460 Steward v. Irwin, 1 Clark (Pa.) 408 211, 550, 567 Boyd V. Jailer, 1 Grant Cas. 218 187 Chauncey v. Keeper, 2 Ashm. (Pa.) 227 185-187 Barron v. Keeper of County Prison, 14 Phila. 396, 37 Phila. Leg. Int. 485 210 Gordon v. Keeper of County Prison, 15 W. N. C. 282 221 McDowell V. Keeper of County Prison, 11 W. N. C. 341 211 Newton v. Keeper of Debtors' Apartment, 1 Ashm. (Pa.) 10 210 Bullard V. Keeper of Jail, 4 W. N. C. 540, 13 Phila. 573, 35 Phila. Leg Int. 80 151, 344 Wilson V. Keeper of Jail, 26 Pa. 279 209, 216 Leetham v. Keeper of Philadelphia County Prison, 16 Phila. 487, 41 Phila. Leg. Int. 94 469 Wolfe V. Keeper of Philadelphia County Prison, 6 Phila. 78, 13 Phila. Leg. Int. 189 221 Chauncey v. Keeper of Prison, 2 Ashm. (Pa.) 227 275 Simpson v. Keeper of the Prison, 1 Ashm. (Pa.) 183 141 Nuber v. Keeper of Workhouse, 6 Pa. Super. Ct. 420, 41 W. N. C. 549 224, 408 Davis V. Kehoe, 11 Pa. Co. Ct. 516, 1 Pa. Dist. R. 630, 5 York Legal Record, 166 114, 118, 541 Keisel v. Keisel, 13 Montg. Co. L. Rep. 172 212 Colbert v. Kerr, 25 Pittsb. L. J. N. S. 367 558 Citations. 03 Com. ex rel. Torrey v. Ketner, 92 Pa. 372, 37 Am. Rep. 692 106, 108, 209, 210, 220, 221, 224 McLaughlin v. Killacky, 3 Brewst. (Pa.) 565 215 Yeager v. Kintzer, 16 Pa. Co. Ct. 453, 4 Pa. Dist. E. 605 220 Draper v. Kirkbride, 3 Brewst. (Pa.) 393 214 Maccuen v. Kirkbride, 1 Brewst. (Pa.) 541 218, 219 Phillips V. Klemsen, 23 Pa. Co. Ct. 207, 9 Pa. Dist. R. 165 210 Davis V. Lecky, 1 Watts, 66, 26 Am. Dec. 37 209, 212, 567 Healy v. Little, 33 W. N. C. 486 223 Edwards v. Lloyd, 9 Kulp, 48 497, 499 Scott V. McAleese, 10 Pa. Super. Ct. 286, 44 W. N. C. 207, 30 Pittsb. L. J. N. S. 4, 1 N. B. N. 511, S. C. 192 Pa. 410, 43 Atl. 1079. .209, 216, 225 Allegheny County v. McCann, 174 Pa. 19, 34 Atl. 299 539, 570-572, 574 O'Connor v. McCuen, 75 Pa. 215 498 Boden v. McGolrick, 5 Kulp, 529, 1 Del. Co. Rep. 446 221 Joseph V. M'Keagy, 1 Ashm. (Pa.) 248 211, 460, 541, 567 Seibert v. Managers of House of Correction, 26 Pa. Co. Ct. 378, 10 Pa. Dist. B, 371, 58 Phila. Leg. Int. 312 564, 565 Leslie v. May, 24 Pa. Co. Ct. 546 211 Wainwright v. Megee, 2 Phila. 396 222 Allegheny County v. Menjou, 174 Pa. 25, 34 Atl. 301 573 Ernst V. Metzger, 6 Kulp, 408, 2 York Legal Record, 53 545 Moore v. Moore, 1 Pittsb. 312 213 Myers v. Myers, 18 Pa. Co. Ct. 385, 6 Pa. Dist. R. 31 214 Keely v. Perkins, 124 Pa. 36, 2 L. R. A. 223, 16 Atl. 525 218, 224 Barnes v. Philadelphia County, 2 Serg. & R. 290 4C9, 501 Freytag v. Philadelphia County, 6 Binn. 397 499, 508 Norbury v. Philadelphia County, 8 Serg. & R. 151 201 Shaw V. Philadelphia County, 3 Clark (Pa.) 411 503 Thomas v. Philadelphia County, 8 Serg. & R. 64 516 Haggerty v. Philadelphia County Prison Superintendent, 4 Brewst. (Pa.) 320 362 Wrigley v. Philadelphia County Prison Superintendent, 6 Phila. 169, 23 PhUa. Leg. Int. 85 221 Applegate v. Pole, 11 Pa. Co. Ct. 226 175 Potter V. Potter, 3 Luzerne Leg. Reg. 209 213 Pennsylvania Soe. for Prevention of Cruelty to Animals v. Randall, 10 Phila. 451, 32 Phila. Leg. Int. 456, 2 W. N. C. 210 558 Lowry v. Reed, 59 Pa. 425 213, 219 Dusar v. Riddle, 1 Serg. & R. 311 190 Sage v. Sage, 160 Pa. 399, 28 Atl. 863 222 Hegler v. Schladensky, 9 W. N. C. 315 213 Gromley v. Selfridge, 7 Phila. 76 208 Vallette v. Sheriff, 15 Phila. 393, 38 Phila. Leg. Int. 412 221 Eraelich v. Sherman, 15 Lane. L. Rev. 43 192 Herring v. Smith, 11 W. N. C. 34 210 Smith V. Smith, 1 Brewst. (Pa.) 547 213 Urich V. Stine, 2 Lack. Legal News, 179, 13 Lane. L. Rev. 228 100, 212, 222, 309 Stuhlman v. Stuhlman, 11 Pa. Dist. R. 181 535 64 Citations. Com. ex rel. Boyd v. The Jailer, 1 Grant Cas. 218 137, 140 Jack V. The Sheriff, 7 Watts & S. 108 21fi Mengle v. The Sheriff, 16 Phila. 518, 41 Phila. Leg. Int. 366 222 Mintzer v. The Sheriff, 8 Phila. 645 221 Peaslee v. The Sheriff, 10 Phila. 203 222 Reed v. The Sheriff, 11 W. N. C. 134 222 Walker v. The Sheriff, 3 Brewst. (Pa.) 343 222 Whitaker v. The Sheriff, 3 Brewst. (Pa.) 394 344, 345 Tinkler v. Tinkler, 11 Pa. Dist. R. Ill, 59 Phila. Leg. Int. 76 100, 533 Stephens v. Uhl, 10 Kulp, 483 553, 565 Overfield v. Walker, 14 Pa. Co. Ct. 586, 3 Pa. Dist. R. 534 211 Bovven v. Wike, 15 Lane. L. Rev. 53 192 Ruggles V. Wilbanks, 10 Serg. & R. 416 212 Lewis V. Williams, 9 Kulp, 289 213 Hauer v. Wise, 3 Pa. Dist. R. 289 213 Winder v. Wetherhold, 2 Clark (Pa.) 476 210, 229, 237, 238 M'Lain v. Wright, 3 Grant Cas. 437 208 Com. use of Rogers v. Bennett, 16 Serg. & R. 243 570 Patterson v. Blossom, 12 Pa. Co. Ct. 580 553 Allegheny County v. Davison, 11 Pa. Super. Ct. 130, 136 547 Guardians of Poor v. Finkheimer, 9 Phila. 504, 29 Phila. Leg. Int. 92 555, 561, 564 Lawson v. Ohio & P. R. Co. 1 Grant Cas. 329 525, 526 Dauphin County v. Smohe, 2 Pearson (Pa.) 18 200, 202 Snyder v. Snyder, 1 Pa. Super. Ct. 286 195, 197 Anthony v. Steigerwalt, 18 Lane. L. Rev. 301 149 Directors of Poor v. Wells, 110 Pa. 463 540 Dauphin County v. Winpenny, 2 Peai-son (Pa.) 107 200, 202 Commutation Act of 1901, 25 Pa. Co. Ct. 301, 10 Pa. Dist. R. 361, 4 Dauphin Co. Rep. 168 469 11 Pa. Dist. R. 152, 32 Pittsb. L. J. N. S. 305 470 Conley's Petition, 3 Pa. Dist. R. 623, 5 Del. Co. Rep. 402, 11 Lane. L. Rev. 231 506, 507 Conmey v. MacFarlane, 97 Pa. 361 350 Connell v. Walton, 6 Kulp, 451 350 Conner v. Com. 3 Binn. 38 136, 143 Connolly v. Lackawanna County, 1 Pa. Co. Ct. 26 489, 500, 515 Cope V. Cora. 28 Pa. 297 526 Coroner's Inquest, 1 Pa. Co. Ct. 677, 2 Del. Co. Rep. 475 117, 512 20 Pa. Co. Ct. 660, 7 Pa. Dist. R. 566 117, 510, 511 Re, 1 Pa. Co. Ct. 14, 3 Kulp, 451, 3 Lane. L. Rev. 70, 2 Del. Co. Rep. 446 117, 510, 512-514 Courts for Trial of Infants, 14 Pa. Co. Ct. 254, 3 Pa. Dist. R. 753, 11 Lane. L. Rev. 174 115 Cover V. Com. 20 W. N. C. 386 307 Coyle V. Com. 100 Pa. 573, 45 Am. Rep. 397 428 V. Com. 104 Pa. 117 420 Craig, Ex parte, 4 Wash. C. C. 710, Fed. Cas. No. 3,321 173 Crawford County v. Barr, 92 Pa. 359 499^ 508 Creamer v. Hall, 2 Del. Co. Rep. 378 155 Citations. 63 Crosby's Inquest, 3 Pittsb. 425, 19 Pittsb. L. J. 192 510 Crosland v. Shaw (Pa.) 11 Cent. Rep. 665, 12 Atl. 849 147 Grouse, Ex parte, 4 Whart. 9 460 Gulp V. Com. 109 Pa. 363 342 Cumberland County v. Boyd, 113 Pa. 52, 4 Atl. 346 509 V. Deckman, 12 Pa. Co. Ct. 340 571 V. Holcomb. 36 Pa. 349 508 Gummings v. Gann, 52 Pa. 488 156 Cunninghan v. Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 653 207 Curley v. Com. 84 Pa, 151 376, 398 Curtis V. Allegheny County, 1 Phila. 237, 8 Phila. Leg. Int. 142 154 D. Daniels v. Com. 7 Pa. 371 455, 487 V. Lackawanna County, 5 Law Times, N. S. 59 500 Darlington v. Darlington, 5 Pa, Co. Ct. 132 536 Davidson v. Com. 5 Cent. Rep. 484, 6 Atl. 170 231 Davis V. Com. 6 Del. Co. Rep. 60, 4 Northampton Co. Rep. 309, 1 Lack. Jur. 102, 3 Lack. Jur. 373 561 V. Com. 13 Pa. Co. Ct. 545, 3 Pa. Dist. R. 668 413, 558 V. Com. 30 Pa. 421 302 V. Com. (Pa.) 4 Gent. Rep. 711, 7 Atl. 194 275, 276, 313, 324 Davis's Appeal, 90 Pa. 131 534 Dean v. Com. 3 Serg. & R. 418 289 Decker v. Directors of Poor, 120 Pa. 272, 13 Atl. 925 529 Delaware & H. Canal Co. v. Loftus, 71 Pa. 418 574 Delaware County Directors of Poor v. Mercer, 2 Clark (Pa.) 75 343, 528 Delaware County Tump. Road, re, 4 Pa. Go. Ct. 101 564, 568 Delaware Division Canal Go. v. Com. 60 Pa. 367, 100 Am. Dec. 570 . . 303, 443, 472 Demott V. Com. 64 Pa. 302 532, 533 Denzen v. Com. 3 Pa. Co. Ct. 168 554 Denzin v. Com. 3 Pa. Co. Ct. 654 550, 563, 564, 569 Diehl V. Rodgers, 169 Pa. 316, 32 Atl. 424 525, 527 Dierkes v. Philadelphia, 93 Pa. 270 536 Dinkey v. Com. 17 Pa. 126, 127, 55 Am. Dec. 542 270, 335, 436 Directors of Poor v. Gorrecht, 7 Lane. L. Rev. 410 529 v. Hickman, 4 Pa. Dist. R. 494 536 V. Shultz, 2 Lane. L. Rev. 405, 2 Chester, Co. Rep. 538, 2 Del. Co. Rep. 429 ' 536 Eistrict Attorney's Fees, R«, 7 Del. Co. Rep. 142 112 Doan's Case, 17 Pa. Co. Ct. 521, 5 Pa. Dist. R. 211 249, 408 Doebler v. Com. 3 Serg. & R. 237 410 Donaghey, Ex paxte, 2 Pittsb. 166 , 165 Donaldson v. Com. 95 Pa. 21 385, 420 Donohue v. Luzerne County, 5 Kulp, 220, S. C. 6 Lane. L. Rev. 138 499 Dosch V. Strayer, 2 York Legal Record, 113 557, 563 Dougherty v. Com. 69 Pa. 286 114, 115, 412 Douglass V. Com. 2 Rawle, 262 269, 311 V. Com. 8 Watts, 535 279 Pa. Grim. Proe. — 5. 68 Citations. Douthett V. Lawrence County, 16 Pa. Co. Ct. 406, 4 Pa. Dist. B. 608 167, 168 Dows, Re, 1 Phila. 234, 8 Phila. Leg. Int. 138, S. C. 18 Pa. 37 104 Doyle V. Com. ex rel. Davis, 107 Pa. 20 210, 224, 480, 484 Drew V. Com. 1 Whart. 279 476, 487 Dromgold v. Com. 1 W. N. C. 454, 32 Phila. Leg. Int. 320 481 Duck V. Chief Burgess, 7 Watts, 181 557, 563 DuiT V. McDonough, 2 Pa. Super. Ct. 373, 38 W. N. C. 496 224 Duffey V. Dufifey, 44 Pa. 399 536 Duncan v. Com. 2 Pearson (Pa.) 213 ,. 550, 554 V. Com. 4 Serg. & R. 449 276, 292, 475, 525, 526 Dunkle v. Warren County, 17 Pa. Co. Ct. 400, 5 Northampton Co. Rep. 184. . . 498 Dunlap V. Com. 108 Pa. 607 130 Dunn V. Com. 6 Pa. 384 412, 485 Durr V. Com. 3 Pa. Co. Ct. 525, 35 Pittsb. L. J. 270 555 Dux's Case, 7 Pa. Co. Ct. 294 465 Dyott V. Com. 5 Whart. 67 331, 386, 468 E. Eaton V. Com. 6 Binn. 647 384 Eby V. Burkholder, 17 Serg. & R. 9 476 Echard v. Fayette County, 5 Pa. Dist. R. 371, 26 Pittsb. L. J. N. S. Howser v. Com. 51 Pa. 332 414, 483, 525 Huidekoper v. Cotton, 3 Watts, 56 248 Hultz V. Com, 3 Grant Cas. 61 483 Hunlock Twp. Poor Dist. v. Hufford, C Kulp, 202 536 Hunter v. Com. 2 Serg. & R. 298 , 282, 434 V. Com. 79 Pa. 503, 21 Am. Eep. 83 269, 271, 436 Huntingdon v. Krickbaum, 8 Luzerne Legal Reg. 127 536 70 Citations. Huntington Covmty v. Com. 72 Pa. 80 414, 500 Huntsinger, Re, 3 Kulp, 142 506 Huntzinger v. Com. 97 Pa. 336 472 Hutchison v. Com. 82 Pa. 472, 478 263, 264, 315, 425, 439, 467 I. Irons V. Allen, 169 Pa. 633, 32 Atl. 655 101 Irwin V. Northampton County, 1 Serg. & R. 505 488, 495 Jack V. Twyford, 10 Pa. Super. Ct. 475 224 Jackson v. Com. 2 Binn. 79 487 Jacobs V. Com. 5 Serg. & R. 315 253, 330, 412 James, Re, 116 Pa. 152, 9 Atl. 170 536 V. Com. 12 Serg. & R. 220 470 Jenkins, Ex parte, 1 PMla. 451, 10 Phila. Leg. Int. 166, 2 Wall. Jr. 521, Fed. Cas. No. 7,259 206 Jewell V. Com. 22 Pa. 94 386, 388, 393, 396, 412, 451, 485 Jillard v. Com. 26 Pa. 169 245, 264, 317, 339 Johnson, Re, 13 Pa. Co. Ct. 170, 2 Pa. Dist. R. 700, 11 Lane. L. Rev. 303 506 V. Borough, 3 Kulp, 244 561 V. Com. 24 Pa. 386 438, 487 V. Com. (Pa.) 22 W. N. C. 68, 13 Cent. Rep. 80, 14 Atl. 425 301, 322 V. Com. 115 Pa. 369, 9 Atl. 78 426, 481 V. Pittston, 3 Kulp, 244 563 Johnson's Case, 13 Pa. Co. Ct. 170, 2 Pa. Dist. R. 700 507 Johnston v. Com. 22 Pa. 102, 2 Am. L. Reg. 285 550, 554, 562, 575 V. Com. 85 Pa. 54, 27 Am. Rep. 622 427, 430, 467 V. Pittston, 3 Kulp, 244 549 Jones V. City, 2 Kidp, 68 565 V. Com. 75 Pa. 403 438 V. Com. 75 Pa. 405 486, 487 V. Hughes, 5 Serg. & R. 299, 9 Am. Dec. 364 143 V. Wilkesbarre, 2 Kulp, 68 120, 539, 542, 543, 546, 548 Jones's Cases, 12 Pa. Co. Ct. 229, 2 Pa. Dist. R. 538 154 Inquest, 1 Pa. Co. Ct. 19 510, 511 Jordan, Re, 49 Fed. 238 206 Juniata County v. McDonald, 122 Pa. 115, 15 Atl. 696 155 K. Kane v. Com. 89 Pa. 522, 33 Am. Rep. 787 425, 427 V. Com. 109 Pa. 541 270, 297, 474 Keef haver v. Com. 2 Penr. & W. 240 190, 191 Keihl V. Com. 18 W. N. C. 505 197 Kell V. Brillinger, 84 Pa. 276 37l Keller v.. Com. 2 Monoghan, 757 187, 189, 195, 196, 203 V. Com. 71 Pa. 413 531, 532, 533, 535 Citations. 71 Keller v. Com. 11 Serg. &, R. 345 541 V. Northampton County, 1 Lehigh Valley L. R. 23 500 Kennedy's Case, 26 Pittsb. L. J. 81 220 Kensington v. Glenat, 1 Phila. 251 546, 565 V. Glenat, 1 Phila. 393 550 Kentucky v. Dennison, 24 How. 66, 16 L. ed. 717 164 Keim V. Com. 1 Pa. Co. Ct. 469, 2 Del. Co. Rep. 490 547, 548, 555 Kerschner v. Berks Covinty, 8 Pa. Co. Ct. 347 516 Ketchledge v. Wyoming County, 24 Pa. Co. Ct. 7 £04 Kilpatrick v. Com. 31 Pa. 198 354, 426, 428, 429, 432 Kilrow V. Com. 89 Pa. 480 , 264, 266, 313, 350, 420 King V. Bank of Gettysburg, 2 Rawle, 197 196 V. Lukens, 1 Dall. (Pa.) 5 246, 247 V. Rapp, 1 Dall. (Pa.) 9 360 liirkendall v. Lucerne County, 11 Phila. 575, 33 Phila. Leg. Int. 313, 1 Ches- ter Co. Rep. 242 495, 496, 508, 519 Kirkner v. Com. 6 Watts & S. 557 195 Kishbaugh's Petition, 135 Pa. 468, 19 Atl. 1063 506 Kitchen's Estate, 30 Pittsb. L. J. N. S. 100 119, 541 Kittanning Ins. Co. v. Adaoms, 110 Pa. 553, 1 Atl. 443 369, 376 Klemmer v. Mt. Penn Gravity R. Co. 163 Pa. 521, 30 Atl. 274 369, 370, 371, 374, 376 Knorr v. Com. 4 Pa. Co. Ct. 32, 3 Montg. Co. L. Rep. 184 547, 553 Koch V. Schuylkill County, 12 Pa. Super. Ct. 567 515 Koeeker v. Koecker, 7 Phila. 371 225 Kramer v. Kister, 187 Pa. 227, 44 L. R. A. 432, 40 Atl. 1008 441 V. Lott, 50 Pa. 495, 88 Am. Dec. 556 143 Krause v. Com. 93 Pa. 418, 39 Am. Rep. 762 427 Kroemer v. Com. 3 Binn. 577 Ill, 455 L. Lancaster v. Baer, 5 Lane. Bar, No. 28 120, 542, 565 V. Hirsh, 1 lane. L. Rev. 209 546, 563, 566, 569 V. Lancaster County, 12 Lane. Bar, 169 508 V. Pennsylvania R. Co. 12 Lane. Bar, 99 544, 549 Lancaster County v. Brinthall, 29 Pa. 38 604, 508 V. Dern, 2 Grant. Cas. 262 510 V. Mishler, 100 Pa. 624, 45 Am. Rep. 402 510 V. Myers, 3 Lane. L. Rev. 297 495 V. Roberts, 5 Watts & S. 505 517 Lane v. Com. 59 Pa. 371 428 Laros v. Com. 84 Pa. 200, 211 454 Laughney v. Com; 4 Lane. L. Rev. 298 180, 181 Laverty v. Com. 4 Pa. Co. Ct. 137, 35 Pittsb. L. J. 70 557, 564, 565 V. Com. 101 Pa. 560 177, 335 Lawrence, Ex parte, 5 Binn. 304 209 Lee's Case, 9 Pa. Co. Ct. 474 117, 510 Leffingwell v. Wilkesbarre, 4 Kulp, 494 560 Leffler v. Shreiver, 2 Legal Record Rep. 377 505 72 Citations. r^lilgh County V. Meyer ( 1883 ) 102 Pa. 479, 15 W. N. C. 166 518 V. Schock, 113 Pa. 373, 7 Atl. 52 495 Lehighton v. Roth, 7 Pa. Dist. R. 426, 21 Pa. Co. Ct. 63 548, 568, 571, 572 V. Smith, 9 Pa. Dist. R. 428, 7 Northampton Co. Rep. 190, 6 Lack. Legal News, 192 542, 562, 565 Lemon v. Reidel, 1 Lane. L. Rev. 3, 4 York Legal Record, 164 546, 563, 566 Lesh V. Npwton & S. Tump. Co. 3 Lack. Jur. 69 571, 572, 573 Lewis V. Com. 2 Serg. & R. 551 454 Lineberger v. Mercer County, 19 Pa. Co. Ct. 532, 28 Pittsb. L. J. N. S. 154. . 504 Linn v. Com. 96 Pa. 285 428, 493, 520 Livezey v. Gorgas, 1 Binn. 251 225 Lloyd, lie, 3 Clark (Pa.) 188 229, 235, 236, 237 V. Monroe, 2 Kulp, 25 572 Lockington's Case, Brightly (Pa.) 269 207 Lopeman v. Henderson, 4 Pa. 231 191 Lower Merion Twp. v. Springfield Water Co. 17 Montg. Co. L. Rep. 166 575 Luck V. Com. 10 Pa. Dist. R. 50^, 58 Phila. Leg. Int. 372 103 Lulten's Petition, 11 Pa. Dist. R. 146, 59 Phila. Leg. Int. 97 214 Lutz V. Cora. 29 Pa. 441 295, 313, 443 Luzerne County v. Day, 23 Pa. 141 514 Lycoming v. Lycoming County, 46 Pa. 496 495 Lycoming County, v. Hall, 7 Watts, 290 516 Lyle V. Baker, 4 Dall. (Pa.) 433 225 Lynch v. Com. 77 Pa. 205 384, 380 V. Com. 88 Pa. 189, 32 Am. Rep. 445 412, 413 Lyons v. Means, 1 Pa. Super. Ct. 608 509 M. McCabe v. Com. (Pa.) 8 Atl. 45 431 McCain's Petition, 4 Pa. Co. Ct. 9 157 MeCallister v. Armstrong County, 9 Pa. Super. Ct. 423 517 MeCann v. Barr, 6 Pa. Dist. R. 721, 16 Lane. L. Rev. 183, 19 Pa. Co. Ct. 669, 28 Pittsb. L. J. N. S. 155, 13 Montg. Co. L. Rep. 179, 1 Docket, 124 173, 559 McCarthy v. DeAi-mit, 99 Pa. 63, 36 Atl. 327 143, 140 McCauley's Appeal, 86 Pa. 187 520 McClain v. Com. 99 Pa. 86 425 V. Com. 110 Pa. 263, 1 Atl. 45 400, 419, 420, 483 V. La\vience County, 14 Pa. Super. Ct. 273 510, 520 McClure v. Cora. 80 Pa, 353 290 M'Conahy v. Courtney, 7 Watts, 491 113, 541 McConkey v. Com. 101 Pa. 416 429, 430 McCreary v. Com. 29 Pa. 323 337 McCue V. Com. 78 Pa. 185, 21 Am. Rep. 7 413, 476, 487 McCullough V. Com. 67 Pa. 30 229, 230, 231, 315, 316 McDonald, Ex parte, 2 Whart. 440 520 McElroy v. York County, 3 York Legal Record, 73, 1 Del. Co. Rep. 282, 30 Pittsb. L. J. 55, 14 Lane. Bar, 56 515 McFadden v. Com. 23 Pa. 12, 62 Am. Dee. 308 337, 351, 396, 403 Citations. 73 McFadden's Case, 2 Kulp, 259, 14 Lane. Bar, 158 211 McFadgen v. Chester County, 10 Pa. Co. Ct. 124, 7 Montg. Co. L. Rep. 149 510, 511 McGinnis, Ex parte, 14 W. N. C. 221 465 V. Com. 102 Pa. 66 483, 486 McGuire v. fTbenandoah, 109 Pa. 613 572, 574 Mack V. Com. 4 Pa. Co. Ct. 256, 3 Del. Co. Rep. 321 555 V. Miller, 9 Montg. Co. L. Rep. 96 547. 558 V. Wright, 180 Pa. 472, 36 Atl. 913 540 McLain v. Com. 99 Pa. 86 429, 430 M'Laughlin v. Com. 4 Rawle, 464 298 McManus v. Com. 91 Pa, 57 483 MeMeen v. Com. 114 Pa. 300, 9 Atl. 878 115, 428, 429, 431, 481 McNair v. Rempublicam, 4 Yeates, 326 289 McNamara v. Earley, 2 Pa. Co. Ct. 491, 4 C. P. Eep. 179 503 McSweeney v. Allegheny County, 25 Pittsb. L. J. N. S. 90 49!) Magie's Appeal, 2 Cent. Rep. 363, 4 Atl. 737 190 Mahanoy City v. Bissell, 9 Pa. Co. Ct. 469 572, 573 V. Wadlinger, 142 Pa. 308, 21 Atl. 823 575 Managers for Relief of Poor v. Philadelphia, 6 Serg. & R. 483 202 Manayunk v. Davis, 2 Pars. Sel. Eq. Cas. 289 559, 502, 563, 566 Mann's Case, 2 Legal Gaz. 329 221 Manufacturing Reformatories, 20 Pa. Co. Ct. 423, 7 Pa. Dist. R. 77 462 March v. Com. 12 Cent. Jlep. 557, 21 W. N. C. 566, 14 Atl. 375. .112, 175, 187, 229 V. Com. 21 W. N. C. 566, 14 Atl. 375 175 Mark v. Clinton County, 4 Clark (Pa.) 15 500 Marsh v. Com. 16 Serg. & R. 319 480 Martin's Case, Binn's Justice, 177 211 Marvin Shaft Inquest, 3 Pa. Co. Ct. 10 511, 512 Mason's Petition, 6 Legal Gaz. 110, 3 Luzerne Legal Reg. 54 190 Matthews v. Schmidt, 7 Pa. Dist. R. 202, 8 Kulp, 471, 14 Lane. L. Rev. 287. . 546 Mauoh Chunk v. Betzler, 19 Pa. Co. Ct. 27, 6 Pa. Dist. R. 330, 10 York Legal Record, 151, 5 Northampton Co. Rep. 354 571, 572 Maurer v. Mitchell, 9 Watts & S. 69 348 Mayne v. Fidelity & Deposit Co. 8 Pa. Dist. R. 711 192 Mayor v. Harkins, 1 Phila. 518 559 V. Mason, 4 Dall. (Pa.) 266 546, 562, 566 V. Wards, 1 Phila. 517 565 Means' Estate, 22 Pa. Co. Ct. 131 413, 490, 492, 495 Mears v. Com. 2 Grant Cas. 385 277, 310 Medegraph v. Cora. 11 Serg. & R. 394 278 Megargell v. Hazleton Coal Co. 8 Watts & S. 342 545 Memorial, Be, 8 Phila. 478 109, 228, 235, 236 Mertz's Case, 8 Watts & S. 374 209 Metzger Inquest, 8 Pa. Dist. R. 573 117, 510, 512, 514 Meyers v. Com. 83 Pa. 131 428, 431 Middleton v. Com. 2 Watts, 285 433, 477, 481 Milliken v. Mitchell, 28 Pittsb. L. J. 302 119, 541 V. Com. 24 Pa. Co. Ct. 513 553, 554, 564 V. Com. 127 Pa. 122, 17 Atl. 864 191, 534 74 Citations. Milliken v. Com. 35 Phila. Leg. Int. 308 189, 196 Mills V. Com. 13 Pa. 627 103, 270, 275, 355, 435, 440, 487 Milton V. Hoagland, 3 Pa. Co. Ct. 283 542, 546, 548 Mishler v. Com, 62 Pa. 55, 1 Am. Rep. 377 190, 191, 192, 197, 203 Moore v. Com. 99 Pa. 570 313 V. Com. 6 Watts & S. 314 186 V. Coxe, 10 W. N. C. 135 153 V. Murphy, 34 Pittab. L. J. 407 351 V. Philadelphia Bank, 5 Serg. & R. 41 449 Morch V. Raiibitschek, 159 Pa. 559, 28 Atl. 369 99 Morgan v. Pittston, 5 Kulp, 186 539 Moss V. Com. 107 Pa. 267 405 Mt. Pleasant Overseers v. Wilcox, 12 Pa. Co. Ct. 447, 2 Pa. Dist. R. 628. .530, 536 Moyer v. Com. 7 Pa. 439 302 Mulliken v. Rolph, 1 Browne (Pa.) 30 542 Munsho\rer v. Patton, 10 Serg. & E. 334, 13 Am. Dec. 678 378, 383 Murdy v. McCutcheon, 95 Pa. 435 547 Murray v. Com. 79 Pa. 311 428, 430, 432 Myers v. Com. 79 Pa. 308 109, 324, 353, 398, 399 V. Martin, 5 Lane. Bar, No. 2 504 N. Nash V. Com. 2 C. P. Rep. 239 556, 562 National Bank v. Kirk, 90 Pa. 49 350 Neagle, Re, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658 207 Neall V. Hart, 115 Pa. 347, 8 Atl. 628 143 Nehr v. Lancaster County, 19 Pa. Co. Ct. 118, 14 Lane. L. Rev. 132 501 Nevling v. Com. 98 Pa. 322 431 Newcastle v. Cutler, 15 Pa. Super. Ct. 612 575 V. Electric Illuminating Co. 16 Pa. Co. Ct. 663, 26 Pittsb. L. J. N. S. 197, Affirmed in 2 Pa. Super. Ct. 228 541 Neweomb's Case, 21 Pa. Co. Ct. 560, 9 Kulp, 270 208 Newhouse v. Com. 5 Whart. 82 ; 534, 535 Newman v. Com. (Pa.) 5 Cent. Rep. 497, 7 Atl. 132 420 V. Com. 34 Pittsb. L. J. 313 422 Nicholson v. Com. 91 Pa. 390, 96 Pa. 503 269, 426 V. Com. 96 Pa. 503, 91 Pa. 390 233 Noftsker v. Com. 22 Pa. Co. Ct. 559, 8 Pa. Dist. R. 572 553 Northampton County v. Innes, 26 Pa. 156 514 V. West, 28 Pa. 173 499, 508 Northern C. R. Co. v. Com. 9 W. N. C. 129 342 Northern Liberties v. Crocks, Purdon's Dig. 10th ed. 849 570 V. O'Neill, 1 Phila, 427 548, 563, 565 Northern Liberty Hose Co. Re, 13 Pa. 193 539, 555 Norton's Case, 15 W. N. C. 395 166, 211 Nusser v. Com. 25 Pa. 126 319, 554 O. Oath of Grand Juror, 29 Pittsb. L. J. 385 243 Citations. 75 O'Connor's Appeal, 104 Pa. 437 536 O'Donnell, Re, 126 Pa. 155, 19 Atl. 42 536 Ogden V. Greene County, 3 Pa. Dist. R. 572 498 Olmsted's Case, Brightly (Pa.) 9 207 O'Malia v. Com. 4 C. P. Rep. 172 557, 566 O'Mara v. Com. 75 Pa. 424 109, 397, 398 Omit V. Com. 21 Pa. 426 482 Onofri v. Com. 20 W. N. C. 264 420, 424, 484 Ormerod v. Deaxman, 100 Pa. 561, 45 Am. Rep. 391 349 Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420 399 Ott V. Jordan, 116 Pa. 218, 9 Atl. 321 564 V. Snyder, 3 Lane. L. Rev. 185 545, 564 Overseers of Poor v. Smith, 2 Serg. & R. 363 485, 529, 531 P. Paizer v. Com. 4 Kulp, 286, 4 Lane. L. Rev. 177 553, 559 Pannell v. Com. 86 Pa. 260 412 Patterson v. Franklin County, 5 Pa. Co. Ct. 471 500 Pavd V. Vankirk, 6 Binn. 123 141 Pauli V. Com. 89 Pa. 432 427 Pearce v. Wilson, 111 Pa. 14, 56 Am. Rep. 243, 2 Atl. 99 347, 348 Peet V. Pittsburgh, 96 Pa. 218 576 Peiffer v. Com. 15 Pa. 468, 53 Am. Dec. 605 404 Pember's Case, 1 Whart. 439 211, 456 Pennell v. Com. 86 Pa. 260 428 Pennsylvania v. Bell, Addison (Pa.) 156, 1 Am. Dec. 298 250, 251, 263, 267, 295, 323 V. Gillespie, Addison (Pa.) 267 303 V. Huffman, Addison (Pa.) 140 255, 322, 336 V. Huston, Addison (Pa.) 334 271 V. Keffer, Addison (Pa.) 290 249 V. Kirkpatrick, Addison (Pa.) 193 568 V. Lovel, Addison (Pa.) 18 273 V. McKee, Addison (Pa.) 33 252, 259, 290 V. Sullivan, Addison (Pa.) 143 359 Pennsylvania Hall, Re, 5 Pa. 204 354 Pennsylvania Mut. Aid Soc. v. Corley, 2 Pennyp. 398 382 Perdue v. Com. 96 Pa. 311 259, 261, 308, 484, 487 Pflaum V. McClintock, 130 Pa. 369, 18 Atl. 734 349 Pfouts's Case, 7 Pa. Co. Ct. 265 510, 511 Philadelphia v. Brennan, 18 Pa. Co. Ct. 59, 5 Pa. Dist. R. 116 530 V. Campbell, 11 Phila. 163, 33 Phila. Leg. Int. 12 136, 147, 548, 563, 565, 569 V. Gilbert, 14 Phila. 212, 37 Phila. Leg. Int. 376 513 V. Haslitt, 14 Phila. 138, 37 Phila. Leg. Int. 386 475 V. Hughes, 4 Phila. 148, 17 Phila. Leg. Int. 381 565 V. Kitchen, 2 Phila. 44 549 V. McCaffrey, 2 Ashm. (Pa.) 164 566 V. Minitzer, 2 Phila. 43 562 76 Citations. Philadelphia v. Nell, 3 Yeates, 475 546, 562 V. Owens, 12 W. N. C. 292 192, 534 V. Roney, 2 Phila. 43 548 Philadelphia & R. R. Co. v. Slemmer, 6 W. N. C. 451 348 Philadelphia use of Fairmount Park v. Junker, 9 Pa. Dist. R. 673 121 Philippi V. Com. 18 Pa. 116 475 Philips V. Gratz, 2 Penr. & W. 412, 23 Am. Dec. 33 389 Phillips V. Allen, 41 Pa. 481, 82 Am. Dec. 486 559 V. Com. 44 Pa. 197 260, 313 Piatt V. Luzerne County, 5 Kulp, 517, 7 Lane. L. Rev. 276 499 Pickett V. Erie County, 3 Pa. Co. Ct. 23, 19 W. N. C. 60 511, 514 Pierson v. Com. 3 Grant Cas. 314 188, 193, 197 Piper's Case, 2 Browne (Pa.) 59 393 Pistorius v. Com. 84 Pa. 158 428, 430 Pittsburg V. Madden, 3 Pa. Dist. R. 771, 14 Pa. Co. Ct. 120, 24 Pittsb. L. J. N. S. 283 563, 568 Pittsburgh v. Young, 3 Watts, 363 560 Pittsburgh, V. & C. R. Co. v. Com. 101 Pa. 192 473 Pittston V. Dimond, 4 Pa. Dist. R. 200, 15 Pa. Co. Ct. 543, 7 Kulp, 431, 12 Lane. L. Rev. 120 147, 548, 562 Playford v. Com. 4 Pa. 144 526 Plymouth, Re, 167 Pa. 612, 31 Atl. 933 396 V. Penkok, 7 Kulp, 101 123, 147, 549, 562 V. Williams, 8 Kulp, 167 549 Porter v. Dawson Bridge Co. 157 Pa. 367, 27 Atl. 730 550 Pottsville v. Marbuger, 1 Legal Chronicle, 60 548 Pottsville Water Co. v. Ball, 1 Legal Chronicle, 63 549 Powell V. Com. 114 Pa, 265, 60 Am. Rep. 350, 7 Atl. 913 427 Power of Coroner, Re, 11 Phila. 387, 32 Phila. Leg. Int. 142 116, 117 Prine v. Com. 18 Pa. 103 412, 485 Prior V. Craig, 5 Serg. & R. 44 143 Prothonotary, Re, 9 Phila. 492, 29 Phila. Leg. Int. 397 2^d Purcell V. Com. 1 Walk. (Pa.) 243 412 Pyle V. Sweigart, 18 Lane. L. Rev. 81 155 Q. Quay's Petition, 189 Pa. 517, 42 Atl. 199 225, 480 Quigley v. Com. 84 Pa. 18 380 Quinney v. Com. 1 Monaghan, 158 Ill, 450 R. Rambo v. Chester Comity, 1 Chester Co. Rep. 416 511, 513 Ramsey v. Alexander, 5 Serg. & R. 338 495 Rand v. King, 134 Pa. 641, 19 Atl. 806 478 Randolph v. Com. 6 Serg. & R. 398 258, 277 Rauch V. Com. 78 Pa. 490 474 Raush V. Ward, 44 Pa. 389 I55 Reading v. O'Reilly, 1 Woodw. Dec. 408 6C2 Citations. 77 Ream v. Com. 3 Serg. & R. 207 , - . 291 Eeardon v. Pierce, 1 Chester Co. Rep. 323 491 Reddill's Case, 1 Whart. 445 211, 456 Reed v. Bias, 8 Watts & S. 189 154 Rees V. Emerick, 6 Serg. & R. 28G 541 Reggel, Ex parte, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148 164 Reid V. Wood, 102 Pa. 312 546, 559, 565, 575, 576 Reinhart v. Vaux, 10 W. N. C. 222 469 Rfiitlinger's Inquest, 2 Kulp, 127, 30 Pittsb. L. J. 39, 11 Lane. Bar, 123, 3 York Legal Record, 101, 11 Luzerne Leg. Reg. 157 117 Reitnauer's Inquest, 14 Pa. Co. Ct. 46 117 Rentsehler v. Schuylkill County, 1 Legal Record Rep. 289 116, 117, 511 Reserve Mut. L. Ins. Co. v. Kane, 81 Pa. 154, 22 Am. Rep. 741, 3 W. N. C. 201 536 Resh V. Bahr, 15 York Legal Record, 179 140 Respublica v. 'Arnold, 3 Yeates, 263 210, 217, 304, 362 V. Arnold, 3 Yeates, 417 205 V. Askew, 2 Dall. (Pa.) 189, 1 Yeates, 186 467 V. Buifington, 1 Dall. (Pa.) 60 159, 470 V. Burns, 1 Yeates, 370 186, 228 V. Campbell, 1 Dall. (Pa.) 354 289 V. Cleaver, 4 Yeates, 69 315 V. Cobbet, 3 Yeates, 93 108 V. Davison, 4 Yeates, 125 129, 220 r. De Longchamps, 1 Dall. (Pa.) HI 454 V. Dennie, 4 Yeates, 267, 2 Am. Dec. 402 397 V. Doan, 1 Dall. (Pa.) 86 159, 470 V. Donagan, 2 Yeates, 437 113 V. Coaler of Philadelphia, 2 Yeates, 258 190, 211, 215, 222 V. Griffiths, 2 Dall. (Pa.) 112 228 V. Hannum, 1 Yeates, 71 143 V. Honeyman, 2 Dall. (Pa.) 228 252, 295 V. Jacob, 1 Smith's Laws, 57 186 V. Keeper of the Gaol, 2 Yeates, 349 20r V. Langcake, 1 Yeates, 415 303 V. Le Gaze, 1 Yeates, 55 451 V. Mesea, 1 Dall. (Pa.) 73 410 V. Holder, 1 Dall. (Pa.) 33 360 V. Montgomery, 1 Yeates, 419 ■. 120 V. Newell, 3 Yeates, 407, 2 Am. Dec. 381 267, 308 V. Oswald, 1 Dall. (Pa.) 319, 1 Am. Dec. 246 , 469 V. Prior, 1 Yeates, 206 228, 504 V. Reiker, 3 Yeates, 282 303 V. Richards, 1 Yeates, 480 401 V. Robarts, 1 Yeates, 6 436 V. Shaffer, 1 Dall. (Pa.) 236 245 V. Shryber, 1 Dall. (Pa.) 68 263 V. Steele, 2 Dall. (Pa.) 92 159, 256, 470 V. Sweers, 1 Dall. (Pa.) 41 290 V. Teischer, 1 Dall. (Pa.) 335 302 V. Tryer, 3 Yeates, 451 252, 253, 268, 294 78 Citations. Respublica v. Wright, 1 Yeates, 205 101, 309 Returns by Magistrates, Re, 26 Pa. Co. Ct. 545, 11 Pa, Dist. R. 140 174 Rhoads v. Com. 15 Pa. 272 193 Rhodes v. Com. 48 Pa. 396 419, 428 Rice V. Burns, 9 Pa. Super. Ct. 58, 29 Pittsb. L. J. N. S. 243, 43 W. N. C. 301. 143 V. Com. 100 Pa. 28 428, 429, 432 V. Com. 102 Pa. 408 420 V. Schuylkill County, 14 Pa. Co. Ct. 541 499 Richards v. Clearfield County, 16 Pa. Co. Ct. 227 49S Richardson v. Clarion County, 14 Pa. 198 516 Riddle v. Hall, 111 Pa. 14, 56 Am. Rep. 243, 2 Atl. 99 348 Ridley Park v. Chester, D. & P. R. Co. 24 Pa. Co. Ct. 3, 8 Del. Co. Rep. 27 563 Rinehart v. Lancaster, 18 W. N. C. 364 155 Riots of 1844, Re, 2 Clark (Pa.) 135, 283 154 Ritchie v. Shannon, 2 Rawle, 196 ? 558 Rizzolo V. Com. 126 Pa. 54, 17 Atl. 520 364, 372, 398, 399, 413 Robb V. Connolly, 111 U. S. 624, 28 L. ed. 542, 4 Sup. Ct. Rep. 544 209 Rogers v. Com. 5 Serg. & R. 463 266, 277, 299, 311, 454, 467, 473 Rohm V. Borland (Pa. ) 7 Atl. 171 99 Rohrbacker v. Pugh, 10 W. N. C. 275 451 Rohrheiraer v. Winters, 126 Pa. 253, 17 Atl. 606 340 Rolland v. Com. 82 Pa. 306, 22 Am. Rep. 758 376, 379, 383, 384, 385, 396, 397, 401, 403 Romig V. Hinkle, 7 Pa. Co. Ct. 145 349 Root V. Com. 98 Pa. 170 430 Rosenberger v. Com. 118 Pa. 77, 11 Atl. 782. .239, 253, 254, 268, 298, 318,324, 345 Ross V. Hudson, 6 Pa. Super. Ct. 552, 42 W. N. C. 43 143 Rothermal v. Hughes, 134 Pa. 510, 19 Atl. 677 348 V. Zeigler, 7 Pa. Co. Ct. 505 547, 556, 561, 564 Rough V. Com. 78 Pa. 495 324 Rowand v. Com. 82 Pa. 405 238, 239, 240 Royall, Ex parte, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734 206 Ruhlman v. Com. 5 Binn. 24 568, 575 Rushworth v. Dwyer, 1 Phila. 26 347 Russell V. Com. 1 Penr. & W. 82 223 V. Com. 7 Serg. & R. 489 267, 469 V. Shuster, 8 Watts & S. 308 146 Rust, Re, 177 Pn. 340, 35 Atl. 623 214 Saalfield v. Manrow, 165 Pa. 114, 30 Atl. 823 348 Sackville v. Com. 24 Pa. Co. Ct. 565 553, 563, 565 St. Clair v. Carr, 2 Legal Record Rep. 87 546, 548, 565 V. Gill, 1 Legal Record Rep. 88 562, 563, 565 Salem Twp. v. Cook, 6 Pa. Co. Ct. 624 530 Sampson v. Com. 5 Watts & S. 385 267, 269, 358, 481, 482 Sanders v. Com. 117 Pa. 293, 11 Atl. 63 320 Sayres v. Com. 88 Pa. 291 386, 404 Schaffer v. M'Namee, 13 Serg. & R. 44 .'542 Citations. 79 Schenley v. Com. use of Allegheny, 36 Pa. 29 103 Schlager v. Nanticoke, 4 Kulp, 244, 522 123, 543, 560 Schnell v. City, 1 W. N. C. 636 563 Schoeppe v. Com. 65 Pa. 51 468, 481, 486, 487 Schofield V. Root, 12 Phila. 333, 35 Phila. Leg. Int. 384 223, 224, 225 Schonawolff v. Schuylkill County, 5 Pa. Co. Ct. 329, 5 Lane. L. Rev. 216, 35 Pittsb. L. J. 398 496, 500 Schopflel V. Kleinz, Brightly (Pa.) 132 223 Sehultz, Ex parte, 6 Whart. 269 118, 211 Schuylkill County v. Reifsnyder, 46 Pa. 446 500, 526 Schwamble v. The Sheriff, 22 Pa. 18, 1 Grant Cas. 187 500 Scott V. Com. 6 Serg. & R. 224 266, 277, 467, 473 Scranton v. Frothington, 5 Pa. Dist. R. 639, 2 Lack. Legal News, 247 547, 548, 571 Scully V. Com. 35 Pa. 511 575 Seaman v. Com. 11 W. N. C. 14 553 Searight v. Com. 13 Serg. & R. 301 493 Seibert's Appeal, 19 Pa. 49 536 Seiders v. Franklin County, 6 Pa. Dist. R. 787, 1 Docket, 133 508 Seifried v. Com. 101 Pa. 200 254, 260 Seitzinger v. Steinberger, 12 Pa. 379 541 Sell V. Com. 1 Montg. Co. L. Rep. 177 546, 566 Sepp V. liChigh County, 4 Del. Co. Rep. 391, 2 Northampton Co. Rep. 337 528 Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. 649 428 Shamokin v. Flannigan, 156 Pa. 43, 26 Atl. 780 539 Sharff V. Com. 2 Binn. 514 434, 440 Sharp V. Wilkesbarre, 1 Kulp, 73 548 Shartzer v. Rutter, 1 Pearson (Pa.) 543 519 Shaw V. Com. ex rel. Stratford, 72 Pa. 68 556 Shay V. Com. 36 Pa. 305 273, 357 Sheffer v. Rempublicam, 3 Yeates, 39 475 Shelton, Re, 11 Pa. Dist. R. 155, 59 Phila. Leg. Int. 106 116 Shenk v. Mingle, 13 Serg. & R. 29 348 Sherban v. Com. 8 Watts, 212, 34 Am. Dee. 460 258, 284 Shibuya Jugiro v. Brush, 140 U. S. 291, 35 L. ed. 510, 11 Sup. Ct. Rep. 770. . 207 Shirk's Case, 5 PhUa. 333, 20 Phila. Leg. Int. 260 208 Shoemaker, Re, 175 Pa. 159, 34 Atl. 627 478 Shoop V. Com. 3 Pa. St. 126 526, 560 Shouse V. Com. 5 Pa. 83 270, 273, 436, 438 Shovlin V. Com. 106 Pa. 369 146, 426, 432 Showers v. Com. 120 Pa. 573, 14 Atl. 401 385 Shriver v. Com. 2 Rawle, 206 191, 196, 197, 203 Shrope v. County, 3 Lane. L. Rev. 123 499, 517 Shuster v. Com. 38 Pa. 206 394 Simmons v. Com. 5 Binn. 617 104, ISO, 165, 166 Simmons v. Com. 1 Rawle, 142 (1829) 252, 262, 292, 475 Simrell v. Lackawanna County, 2 Law Times, N. S. 249 515 Singer v. Center County, 6 Pa. Dist. R. 207 111,515 Sipler V. Clarion County, 8 Pa. Dist. R. 253 516 Sloan V. Delaware County, 19 Pa. Co. Ct. 320, 14 Lane. L. Rev. 341 508 80 CiTATioirs. Sluchko V. Luzerne County, 16 Pa. Ck). Ct. 221, 7 Kulp, 526, 4 Pa, Didt. R. 418 174, 519 Smith V. Com. 104 Pa. 339 : 318, 339 V. Com. 14 Serg. & R. 69 474, 480 V. Com. use of McGary, 59 Pa. 320 469 V. Overseers of Poor, 42 Phila. Leg. Int. 345 536 V. Palmyra Twp. 2 Walk. (Pa.) 342 536 V. Times Pub. Co. 178 Pa. 481, 35 L. R. A. 819, 36 Atl. 296 486 V. Whildin, 10 Pa. 39, 49 Am. Rep. 572 155 Smith's Case, 5 Del. Co. Rep. 398, 7 York Legal Record, 112 505 Smythe v. Banks, 4 Dall. (Pa.) 329 166 SoUiday v. Com. 28 Pa. 13 333 South Bethlehem v. Connolly, 3 Montg. Co. L. Rep. 142, 1 Northampton Co. Rep. 23 508, 569 Spangler v. Com. 3 Binn. 533 298 Sparks v. Com. 9 Pa. 354 247 Spaulding v. Saxton, 6 Watts, 338 525 Speakman v. Speakman, 1 Pa, Dist. R. 119 546 Speeht V. Com. 24 Pa. 103 576 Spevak Case, 13 Pa. Co. Ct. 148, 2 Pa. Dist. R. 520 163, 165 Spicer v. Rees, 5 Rawle, 119, 28 Am. Dec. 648 543, 575 Spickler Re, 10 L. R. A. 446, 43 Fed. 653 206 Spies, Ex parte, 35 Pittsb. L. J. 215 398, 404, 487 Splane v. Com. (Pa. ) 11 Cent. Rep. 168, 12 Atl. 431 554 Staeger v. Com. 103 Pa. 469 263, 269, 276, 313 Stahl's Appeal, 1 Pa. Super. Ct. 496 270 Staup V. Com. 74 Pa. 458 398, 399, 486, 487 Steckman v. Bedford County, 84 Pa. 317 167 Steel V. Com. 7 Watts, 454 186 Steimling v. Bower, 156 Pa. 408, 27 Atl. 299 447 Steinbaker v. Wilson, Legal Gaz. Rep. 76 348 Stephens v. Bradford County, 7 Watts & S. 438 517 Stevick V. Com. 78 Pa. 460 270 Stewart v. Com. 117 Pa. 378, 11 Atl. 370 416, 417, 421 V. Com. 4 Serg. & R. 194 259, 298 Stoops V. Com. 7 Serg. k R. 491, 10 Am. Dec. 482 266, 358 Stout V. Com. 11 Serg. & R. 177 253, 254, 277, 310 Strein v. Zeigler, 1 Watts & S. 259 488, 492, 519 Stroudsburg v. Brown, 1 Pa. Dist. R. 334, 11 Pa. Co. Ct. 272, 9 Lane. L. Rev. 171, 3 Northampton Co. Rep. 158 119. 542, 556, 561, 562, 563 V. Com. 1 Pa. Dist. R. 334, 11 Pa. Co. Ct. 272, 9 Lauc. L. Rev. 171, 3 Northampton Co. Rep. 158 565 Stukeley v. Butler, Hobart, 172 262 Stumpfs Appeal, 116 Pa. 33, 8 Atl. 866 349 Sturgeon v. Com. 12 Cent. Rep. 500, 22 W. N. C. 146, 14 Atl. 41 194, 195, 196 Sullivan, Re, 3 Kulp, 6 5(\r, Summoning Jurors, Re, 13 W. N. C. 94 382 Sweeney v. McCloskey, 1 Kulp, 492 558 Swisher v. Franklin County, 5 Pa. Dist. R. 209 509 Swope V. JefTerson F. Ins. Co. 93 Pa. 251 348 Citations. 81 T. Taggart v. Com. 21 Pa. 527 413, 472 Tarble's Case, 13 Wall. 397, 20 L. ed. 597 208 Taylor v. Com. 44 Pa. 131 409, 485 V. Com. 109 Pa. 262 366, 419 Teirill v. Crawford County, 22 Pa. Co. Ct. 469, 8 Pa. Dist. R. 169, 30 Pittsb. L. J. N. S. 106, 17 Lane. L. Rev. 23 509 Texas's Case, 1 Ashm. ( Pa. ) 175 534 Thackara v. Mintzer, 100 Pa. 151, 39 Phila. Leg. Int. 459 530 Thatcher Requisition, 18 Pa. Super. Co. 533 164, 224 Theel v. Com. 22 W. N. C. 58, 35 Pittsb. L. J. 399 416, 417, 421, 426, 427 Thomas v. Crossin, 5 Clark (Pa.) 328 206 V. McCready, 5 Serg. & R. 387 530 Thompson v. Preston, 5 Pa. Super. Ct. 154, 28 Pittsb. L. J. N. S. 74. .572, 573, 570 Torrence v. Com. 9 Pa. 184 289 Trach v. Northampton County, 1 Lehigh Valley L. R. 253 516 Travis v. Com. 13 W. N. C. 353, AiBrmed in 106 Pi. 597 242, 313, 397, 398, 402, 403, 428, 481 Troutman v. Chambers, 9 Pa. Dist. R. 533 512, 513 Turner v. Com. 86 Pa. 54, 27 Am. Rep. 683 247, 251, 296, 419, 428 Twitchell v. Com. 9 Pa. 211 281 U. Udderzook v. Com. 76 Pa. 340 424 Uhler V. Northampton County, 1 Lehigh Valley L. R. 213 116, 510 Ulrieh v. Lebanon County, 1 Pa. Co. Ct. 83 515 Union Trust Co. v. Real Estate Title Ins. & T. Co. 11 Pa. Dist. R. 70, 59 Phila. Leg. Int. 47 199 United States v. Bishop, 3 Yeates, 37 '. 190 v. Buck, 4 Phila. 161, 17 Phila. Leg. Int. 181 411 V. Edme, 9 Serg. & R. 147 166 V. Insurgents, 2 Call. (Pa.) 335 328 V. Tarble, 13 Wall. 397, 20 L. ed. 597 208 Updegraff v. Com. 6 Serg. & R. 5 259 V. Vagrant's Case, 4 Pa. Co. Ct. 615 118, 473, 556, 559 Vanpool v. Com. 13 Pa. 391 289, 485 Van Swartow v. Com. 24 Pa. 131 539, 555, 562, 564, 575 Von der Ahe's Case, 20 Pa. Co. Ct. 305, 7 Pa. Dist. R. 131, 28 Pittsb. L. J. N. S. 267, 85 Fed. 959 190 Von Helmold v. Von Helmold, 19 Pa. Super. Ct. 217 531 W. Wakely v. Hart, 6 Binn. 316 138, 146, 149 Walker's Case, 23 Pa. Co. Ct. 305 157 Pa. Crimx Proc. — 6. 82 Citations. Wallace v. Jameson, 179 Pa. 98, 36 Atl. 142 370 Walters v. Com. 44 Pa. 135 271, 297, 437 Walton, Ex parte, 2 Whart. 501 362, 363 V. Lerch, 2 Northampton Co. Rep. 388 503, 504 Warner v. Com. 1 Pa. 154, 44 Am. Dee. 114 267 Warren v. Com. 37 Pa. 45 394 V. Geer, 117 Pa. 207, 11 Atl. 415 542 Washington v. McGeorge, 146 Pa. 248, 23 Atl. 222 542 Watson V. Beaver County, 9 Pa. Co. Ct. 495, 27 W. N. C. 469 510, 511 V. Com. 95 Pa. 418 428 Wayne County v. Com. 26 Pa. 154 494, 498 V. Waller, 90 Pa. 99, 35 Am. Eep. 636 417, 500, 515 Weaver v. Com. 29 Pa. 445 286, 442, 443, 453, 455, 481 V. Northampton Comity, 2 Lehigh Valley L. R. 408 511, 512, 513 Webber v. Com. 119 Pa. 223, 13 Atl. 427 360, 365 Weiler v. Pennsylvania R. Co. 29 Pittsb. L. J. 347 147 Wentzel's Appeal, 160 Pa. 252, 28 Atl. 694 362 Werfel v. Com. 5 Binn. 65 380, 455, 485 Wertz V. Blair County, 66 Pa. 18 536 West V. Com. 2 Woodw. Dec. 61 554, 563 Western U. Teleg. Co. v. Philadelphia, 22 W. N. C. 39 541 Weston V. Com. Ill Pa. 251, 2 Atl. 191 399 West Pittston v. Dymond, 8 Kulp, 12 543, 548, 568 White V. Com. 6 Binn. 179, 6 Am. Dec. 443 142, 267, 295, 355, 380 V. Com. 3 Brewst. (Pa.) 30 487 V. Com. 1 Serg. & R. 139 454 White's Application, 30 Pittsb. L. J. 248 456, 468 Petition, 30 Pittsb. L. J. 251 210 Wilcox V. Knoxville, 12 Pa. Co. Ct. 641, 2 Pa. Dist. R. 721 563, 565, 568, 569 Wilkesbarre v. Kosek, 1 Kulp, 454 547, 549, 559, 560, 563, 565, 568 V. Stewart, 10 Pa. Super. Ct. 347 120, 543, 570, 572, 573, 574 Williams v. Com. 29 Pa. 102 432, 453 V. Com. 34 Pa. 178 467, 473 V. Com. 91 Pa. 493 260, 307, 326, 327, 388 v. Dreshler, 14 W. N. C. 211 348 V. Northumberland County, 110 Pa. 48, 20 Atl. 405 500 V. Luzerne County, 8 Kulp, 15 496 Williamson v. Lewis, 39 Pa. 9 207, 212, 216, 217, 225 Williamson's Case, 26 Pa. 9, 67 Am. Dec. 374 207, 209, 210, 216, 217 Williamsport v. Williamsport Water Co. 7 Pa. Dist. R. 206. . . .542, 549, 571, 574 Wilson V. Com. 96 Pa. 56 435^ 440 V. Com. 10 Serg. & R. 373 306, 330 v. County, 1 York Legal Record, 6, 11 Lane. Bar, 170 499 V. Philadelphia (1883) 14 W. N. C. 74 5I8 V. Walton, 1 Phila. 517 559 v. York County, 1 York Legal Record, 6, 11 Lane. Bar, 170 498 Wilson's Case, 2 Pa. Co. Ct. 575, 19 W. N. C. 37 464, 465 Wilt V. Philadelphia & L. Turnp. Co. 1 Brewst. (Pa.) 411 568 Winger v. McKean County, 26 Pa. Co. Ct. 120, 8 Del. Co. Rep. 431, 18 Montg. Co. L. Rep. 88 511^ 5I4 Citations. 83 Winkler v. Com. 7 Pa. Dist. R. 698, 29 Pittsb. L. J. N. S. 168 554 Winton v. Delaware & H. Canal Co. 11 Pa. Co. Ct. 167, 1 Pa. Dist. R. 701, 2 Lack. Jur. 210, 9 Lane. L. Rev. 188 562, 565 Withers v. Com. 5 Serg. & R. 59 3S9 Witmore Inquest, 14 Pa. Co. Ct. 463, 3 Pa. Dist. R. 699 510 Wood, Re, 1 Pittsb. 17 500 Worrell's Case, 61 Pa. 105 529, 530 Wright, Re, 18 Phila. 494, 44 Pliila. Leg. Int. 26 469 V. Com. 77 Pa. 470 470, 493 V. Donaldson, 158 Pa. 88, 27 Atl. 867 499 Wunch V. Berks County, 8 Pa. Co. Ct. 465 516 Y. Yordy v. Lebanon County, 4 Pa. Co. Ct. 162 517 York County v. Crafton, 100 Pa. 619 495, 509 V. Crafton (1882) 12 W. IST. C. 527 521 V. Dalhousen, 45 Pa. 372 499, 526 V. Jacobs, 3 Penr. & W. 365 498 Z. Zebley v. Storey, 117 Pa. 478, 12 Atl. 569 222, 223 Zeidler v. Luzerne County, 1 Kulp, 448 504 Zeigler v. Com. 12 Cent. Rep. 497, 14 Atl. 237, 22 W. N. C. Ill 248, 316, 317 V. Gram, 13 Serg. & R. 102 541 Zeis V. Luzerne County, 3 Kulp, 174, 2 Del. Co. Rep. 206 495, 499 Zell V. Com. 94 Pa. 258 394, 396, 397, 418, 431 Zink V. Schuj'lkill County, 1 Legal Chronicle, 191 351, 497 STATUTES AND CONSTITUTIONS CITED, CONSTRUED, ETC. Constitution of United States. Article 1, § 9, subd. 2. Habeas corpus 205, 225 Article 2, § 2. Pardon 522 Article 3, § 1. Judicial power 104 § 2. Jurisdiction of Federal courts 104, 105, 134 Article 4, § 2, subd. 2. Extradition 159, 164 Amend. 4. Searches and seizures 133 Amend. 5. Due process of law 171 Amend. 6. Rights of prisoner in trial 104, 134, 170 Amend. 8. Bail and punishment 185 84 Citations. Article Article Article Article 1, § 8. § 9. §10. §13. §14. §16. §18. §19. ! 2, § 15. i4,§ 9. !5,§ 1. § 3. § 5. § 9. §10. §11. §12. §14. §21. §23. §24. §26. 6,1 4. 7,§ 1. 8, § 5. §14. Article Article Article Constitution of Pennsylvania. Searches and seizures 136, 138, 152, 228 Rights of accused 170, 171, 411, 414, 416, 530 Twice in jeopardy; criminal information 227, 337 Bail ; punishment 185, 470 Habeas corpus 185, 187, 205, 225 Insolvent debtors 470 Attaint 470 Effect of attainder 471 Privileges of members of legislature 151 Pardoning power 522 Judicial power 117, 138 Jurisdiction of courts 107, 108, 209, 369 Judicial districts 108 Power of courts 109 Writs of certiorari .181, 568 Justices of the peace 139 Magistrate's courts . . . . , 120, 139 Summary convictions 539, 570 Nisi prills 107, 108 Style of process 141, 266 Appellate jurisdiction, 478 Uniformity of laws as to courts , 115 Removals of officers for cause 473 Official oaths 369 Privileges of electors 151 Election ofiaoers 151, 372 English statutes. 3 Edw. I. Hue and cry 155 4 Edw. I. § 2. Coroner 116, 117 13 Edw. 1. Exceptions 433, 477 34 Edw. III. chap. 1. Surety good behavior 113, 120, 537 1 Hen. V. chap. 5. Titles in indictment 256 Hen. V. chap. 8, K 2. Posse comitatus 153 23 Hen. VI. chap. 9. Bail by sheriffs 187 37 Hen. VIII. chap. 8. Use of "force and arms" in indictment 262 Pennsylvania Statutes. 1705, Jan. 12. Sunday law 151 1718, Feb. 22. Married women 531 1718, May 31. Counsel 170, 414, 416 1722, May 22. Appeals 174, 203, 477 1760, April 9 Shooting pigeons ,......,.. 460 1770, Sept. 29. Apprentices 557 1 772, March 21. Suits against officers 143 J772, March 21. Oath 170 Citations. 85 1783, Dec. 9. Kecognizances 193, 194, 193, 200 1784, March 13. Peddling 541 1785, Feb. 18. Habeas corpus. 209, 210, 212, 214, 215-218, 220, 222, 223, 226, 301 1785, March 26. Statute of limitations 343 1786, Sept. 25. Jurisdiction, on Delaware 129 1789, March 11. Aldermen in Philadelphia 139 1789, Sept. 24. Federal courts 100 1790, April 5. Sentence 454 1791, April 13. Penalty for failure to satisfy judgment 541 1791, April 13. Courts 107, 210 1791, Sept. 3. Fornication and bastardy 132 1791, Sept. 23. Costs 158, 495-497, 504 1794, April 22. Sunday law and profanity 549, 550, 553-555, 558, 563n, 566 1796, June 6. Building regulations 311 1798, April 4. Fraudulent insolvency 294 1799, March 28. Peddlers 118, 541 1799, April 8. Fish dams 259 1799, April 11. Taxes 142, 544 1802, Feb. 22. Justice's jurisdiction 117 1804, Dec. 8. Costs 489 1806, March 17. Settlement of cases 347, 496 1806, March 21. Eemedy 101, 540 1806, March 21. Philadelphia; imprisonment 456 1807, April 4. Sentence 140, 454, 473 1807, April 10. Jurisdiction; Monongahela river 130 1808, March 28. Restraint of prisoner 413 1810, March 20. Justices 118, 548, 567, 568, 570, 575 1811, March 30. Becognizance 194 1811, April 2. Jurisdiction; Erie light-house 105 1812, March 31. Local; Philadelphia 529 1814, March 28. Illegal fees 119, 511, 541 1816, March 19. Jurisdiction; Allegheny county 105 1817, March 10. Philadelphia; weights and measures 557 1818, March 24. Proceeds of recognizance 194, 198, 202 1818, May 20. Costs 490 1819, Jan. 27. Proceeds of recognizance 202 1819, March 10. Northern Liberties 542 1819, March 29. Nolle prosequi 350 1820, Feb. 17. Costs; horse racing 519 1820, Feb. 20. Justices 544 1821, March IS. Rewai-ds; horse thieves 156 1821, March 30. Eetums; Philadelphia 193,200 1821, March 30. Recognizances 200, 193 1823, March 31. Jurisdiction; Federal property in Philadelphia 105 1825, April 11. Jurisdiction; piers in Chester 105 1826, March 23. House of refuge 458, 517 1827, Feb. 29. Jurisdiction; Philadelphia navy yard 105 1828, April 12. Penalties 343 1829, April 23. Penitentiary 517 86 Citations. 1830, March 12. Cock fighting 341 ]830,Apiil 2. Hawking and peddling 118, 541,560 1834, March 11. Gambling 557, 294 . 1834, March 31. Jury; Philadelphia county 241 1834, April 10. Jurisdiction; naval asylum, Philadelphia 103 1834, April 14. Courts 109, 353, 355, 356 1834, April 14. Juries. . . .241, 242, 370-375, 377-385, 387, 392-394, 402, 403, 410 1834, April 15. Official misconduct 113, 307 1834, April 18. Fish and game 552 1835, April 10. Imprisonment; infants .....116, 458 1835, April 14. Imprisonment; Philadelphia 456 1835, April 15. Jurisdiction of justice under ordinances 119, 542, 544, 546 1836, June 13. Lunatics 462 1836, June 13. Support 529-531, 534, 535, 617 1836, June 13. Roads 557 1836, June 16. Courts 107, 109, 111, 114, 502, 504, 505 1837, April 4. Eecognizance 194, 210 1838, April 14. Allegheny county 418, 518 1839, June 21. Jurisdiction of Justice 117 1839, July 2. Elections 231, 341 1840, April 16. Jurors 403 1840, April 10. Hawking and peddling 556 1840, June 13. Jurisdiction of Federal property in Philadelphia 105 1841, April 21. Circulating of bank notes 34:5 1841, May 27. Taxes 113 1841, May 27. Coroner 117, 118, 510, 512 1842, Feb. 8. Imprisonment in Philadelphia 456 1842, Feb. 28. Imprisonment in Chester and Dauphin counties 456 1842, July 12. Fraudulent insolvency 99, 138, 152, 160, 187, 294, 543 1842, July 16. Fines 343 1842, July 30. Proceeds of forfeited recognizance 195, 198, 200, 201, 521 1843, Feb. 3. Philadelphia; trial of prisoner 109, 361 1843, Feb. 3. qpurts 353 1843, March 31. Recognizance in Philadelphia 193, 194, 380,381 1843, April 4. Jury; Philadelphia 242 1 845, Feb. 14. Jurisdiction ; Allegheny county 105 1845, Fob. 24. Fines 343 1845, March 10. Jurisdiction; Allegheny county 10i> 1845, April 14. Pennsylvania Hospital 4G2, 463 1845, April 15. Weights and measures 557 1845, April 16. Philadelphia coroner 512 1845, April 16. Removal to penitentiary 517 1845, May 18. Courts 352 1846, April 17. Schuylkill county jury 241 1846, April 22. Recognizance; Philadelphia 194, 200, 201 1847, March 16. Disturbing meetings 282, 551 1848, Feb. 8. Imprisonment in Berks 456 1848, Feb. 8. Courts and jury; Philadelphia 109, 380, 381 1848, Feb. 8. Coroner; Lancaster 512 Citations. 87 1848, March 7. Fire companies 555 1848, April 10. Schuylkill county jury 242 1848, April 11. Insolvency 505 1848, April 11. Desertion; Allegheny county 52!) 1849, Jan. 24. Insolvency 505 1849, Feb. 9. Somerset county; insanity 462 1849, April 5. Jurisdiction of justice under ordinance 119, 542, 544 1849, April 9. Exemption on execution 198 1850, Jan. 25. Jurisdiction; Erie custom house 105 1850, Feb. 19. Imprisonment in Lancaster 450 1850, Feb. 25. Jurisdiction; Federal property in Philadelphia 105 ] 850, April 11. House of refuge 458 1850, April 16. Banks 235 1850, April 22. Courts 242, 356 1850, April 23. House of refuge 459, 517 1850, April 25. House of refuge 458 1850, May 3. 'Nolle prosequi 350 1851, March 29. Power of aldermen in Philadelphia 139 1851, April 3. Boroughs 119, 121, 542-544 1851, April 4. Allegheny and Clarion; liquor in 554 1851, April 8. Imprisonment in Montgomery county 456 1851, April 12. Jurisdiction; Allegheny county 105 1851, April 12. Selling goods without license in Philadelphia 555 1851, April 14. District attorney 109, 356, 415 1852, March 10. Statute of limitations 341 1852, Maich 30. Couits 109, 242, 350 1852, April 1. Schuylkill county; imprisonment in 456 1852, April 7. Fish and game 552 1852, April 21. Hawking and peddling in Berks 556 1853, Feb. 10. Jurisdiction; League island, Philadelphia 105 1853, April 14. Poor laws; local; Philadelphia 529 1853, April 15. Coroner Blair county 512 1853, April 18. Courts 353 1853, April 20. Bottles 153, 557 1854, Jan. 26. House of refuge 458 1854, May 4. Northern Liberties; jurisdiction in 642 1854, May 8. Returns 174 1855, Feb. 26. Liquor on Sunday 554, 555 1855, April 26. District attorney 415 1855, April 26. Certiorari 508 1855, May 4. Desertion 531 1856, March 31. Returns of constables 230 1856, April 2. Coroner Berks county 512 1856, April 22. Courts 353 1856, Nov. 6. Charge of court in murder and manslaughter 433, 477, 515 1857, Jan. 30. Jurisdiction; postoffice Philadelphia 105 1857, March 13. Courts Philadelphia 109 1857, March 15. Coroner Indiana county 512 1857, April 10. House of refuge 459 1857, May 12. House of refuge 459 88 Citations. 1857, May 14. Fees district attorney 514 1858, April 20. Jury; Philadelphia 230, 369, 372-375, 377, 378, 381, 384, 388, 389, 394 1858, April 22. House of refuge 459 1859, April 12. Costs , 489 1859, April 13. Jury 373 1859, April 13. Philadelphia arsenal; jurisdiction 105 Crimes Act (P. L. 382) March 31, 1860. § 3. Escaiw 474 § 15. Public records 291 § 21. I'orcible entry 120, 472 § 22. Forcible detainer 120, 472 § 30. Blasphemy 175 § 31. Disturbing religious meeting 175 § 37. Fornication and bastardy 475 § 38. Place of trial of 132 § 40. Obscene libels 305 § 44. Opon lewdness Ill, 175 § 45. Abandoning infants Ill § 46. Cruelty to animals 175 § 60. Gambling instruments 149, 153 § 64. Cashier of banlcs 106 § 65. Embezzlement by public officers 285 § 66. Malversation by corporation officers 307 § 69. Pure food 175 I 72. Revealing telegraphic despatches 175 § 73. Public nuisances 472 § 74. Murder 438 § 79. Involuntary manslaughter 297, 437 § 80. Mayhem 303 § 87. Abortion 101, 275 § 89. Concealing death of bastard 268, 279 § 94. Enticing child from parents 297 § 97. Assault and battery 175 § 99. Verdicts in felonious assault 437 § 103. Larceny 175 § 107. Larceny by clerks 266 § 111. Cheats by false pretenses 439 § 112. Cheating lodging house keeper 175 § 114. Embezzlement by bankers 231, 284, 286 § 115. Embezzlement by attorneys in fact 269 § 116. Embezzlement by officers of corporations 231, 269 § 117. Keeping fraudulent accounts 231, 269 § 118. Destroying books of corporation 291 § 121. Punishment of certain misdemeanors 455 § 125. Embezzlement by consignees or factors 266, 285 § 133. Time of trial 362 § 135. Burglary 455 Citations. 89 § 137. Arson 276 § 138. Burning outhouses, etc .' 270 § 140. Firing woods 175 § 148. Breaking windows 175 § 152. Cutting timber trees 175, 302 § 171. Altering records 291 § 174. Possession of dies for counterfeiting 281 § 177. Capital punishment 47 1 § 178. Punishment of crimes not provided for 304, 45t § 179. Restitution 472 § 180. Accessories 126, 358, 474 § 181. Sei-vioe of sentence 469, 524, 527 § 182. Second offense 473 § 183. Construction of acts of assembly 101, 455, 540 Penal Code. Marcli 31, 1860 (P. I. 427). § 1. Arrest 139, 140, 167, 414 § 2. Escape into another county 140 § 3, 4. Backing warrants 140, 187 § 5. Stolen property 153, 173 § 6. Surety of peace 120, 537 § 7. Bail 185 § 8. Surrender by surety 189 § 9. Settlement of eases 191, 347, 437 § 10. Oath before grand jury 245 § 11. Objections to indictments 258, 260, 313-315 § 12. Amendments 323 § 13. Variance 298, 301, 323 § 14. Joint ownership 257 § 15. Frauds against joint owners 255 § 16. Property of municipality 257 § 17. Writings 258, 284, 288, 290, 293 § 18. Writings 258 § 19. Intent to defraud 288, 290 § 20. Murder 271, 296 § 21. Perjury 307 § 22. Subordination of perjury 309 § 23. Dueling 283 § 24. Larceny and receiving 268, 310, 435 § 25. Issue 329 § 26. Standing mute 331 § 27. Name of prosecutor 246 § 28. Kmbezzlement 285, 286 § 29. Nolle prosequi 350 § 30. Plea of former conviction or acquittal 332, 622 § 31. Oyer and terminer 109 § 32. Quarter sessions 110-112, 114 i 33. Appeal 107, 478 § 34. Restraint of defendant 413 00 Citations. §35. Treason 328, 415 § 30. Peremptory challenge 394 § 37. Challenge by commonwealth 394 S 38. How challenges made 394 § 39. Challenge for cause 397 g 40. Joint challenges 371, 357 § 41 . Talesmen 388 § 42. Jury de medietate linguoB 410 § 43. Trial of treason 125 § 44. Trial of accessories before the fact 125, 357 § 45. Trial of accessories after the fact 125, 130, 358 § 46. Place of death 128 § 47. Where death outside of state 123 § 48. OflFenses near boundary lines 126 § 49. Offenses on journeys 126 § 50. Attempt 277, 310, 436 § 51. Attempt 438 § .53. Cure of defects in jury process 331, 386 § 54. Time of trial 361 § 56. Imprisonment of witnesses 173, 185 § 57. Exceptions 433, 481 § 58. Filing opinions 433, 481 § 59. Allowance of writ of error 478 § 61. Judgment of appellate court 486 § 62. Costs 453, 489, 490, 492, 490 § 03. Defendant's costs 492 § 64. Payment of costs 497, 499, 508, 520 § 65. Costs where joint offenders 493 § 66. Insane prisoners 440, 462 § 67. Insanity upon arraignment 365 § 68. Insanity 466 § 69. Insanity 463 § 70. Expenses of insane prisoners 463, 517 § 71. Civil actions against felons 99 § 72. Execution where restitution ordered 472 § 73. Outlawry 158, 470 § 74. Separate or solitary confinement 455 § 75. Sentence less than one year 455 § 76. Execution in capital oases 471 § 77. Limitation of prosecutions 341, 344 § 78. Pines 467 1860, March 14. Coroner Bucks and Montgomery counties 512 1860, March 22. Courts Fulton County 353 1860, March 31. Fees district attorney Philadelphia 514 1860, April 2. Courts 353 1801, April 8. Insane 463 1861, April 8. Berks and Fulton counties; hawking and peddling 556 1861, April 17. Jurisdiction; malicious trespass 119, 541 1861, May 1. Trial before justices 175, 178-183, 507 1861, May 1. Insane; Wyoming county 463 Citations. 91 1861, May 1. Commutation of sejitence 469 1862, March 13. Vagrancy 556 1862, April 5. Trial before justices 175, 176, 178, 179, 182 1862, April 8. Jury; Philadelphia 378 1862, April 11. House of refuge 459 18G3, Jan. 19. Courts of Lancaster coimty 109, 353, 456 1863, Feb. 27. Coroner Indiajia county 512 1863, March 3. Act of Congress 107 1S63, April 1. Crawford county; trial before justices 176 1863, April 9. Costs; Luzerne 521 1863, April 14. Itecognizance ; Allegheny county 194 1863, April 22. Venango county; trial before justices 176 1863, April 22. Housebreaking 277 1863, April 26. Western Pennsylvania hospital 463 1863, April 28. Hospital 463 1864, March 30. Lehigh and Northampton counties; trial before justices... 176 1 864, May 5. Philadelphia coroner 512 1864, August 24. Jurisdiction; navy yard, Philadelphia 105 1865, Feb. 14. Snyder county; trial before justices 176 1865, Feb. 17. Jurisdiction; Mt. Moriah cemetery, Philadelphia 105 1865, Feb. 27. Eecognizance ; Erie county 194 1865, March 21. Washington county; trial before justices 176 1865,.March 22. Mercer county; trial before justices 176 1 865, March 22. Misconduct of railroad employees 303 ]865, March 27. Philadelphia interpreters 418, 518 1865, April 4. Bottles 153 1865, May 4. Courts Allegheny county 109, 353 1865, May 27. Eailroad policemen 510 1866, Feb. 1. Allegheny county; imprisonment 119, 456, 541, 555 1866, March 12. Chester county retm-ns of constables 230 1866, March 12. Local railroads 149 1866, March 12. District attorney 246, 416 1866, March 16. Imprisonment; Montgomery county 456 1866, March 21. Constable returns in certain counties 230 1866, March 22. Allegheny county courts 109 1866, March 30. Coroner Luzerne county 512 1866, April 4. Jurisdiction ; League Island 105 1866, April 4. Costs; Mercer 521 1866, April 11. Imprisonment; Delaware county 456 1866, April 11. Luzerne ; trial before justices 176 1866, April 11. Perry; trial before justices 176 1866, April 12. District attorney 246 1866, April 16. Allegheny county interpreter 418, 518 1866, April 16. Erie ; recognizance 194 1866, April 17. Costs; habeas corpus 220, 226 1866, April 19. Coroner Northampton 512 1866, May 10. Lebanon county, hawking and peddling 556 1866, May 18. Hawking and peddling 295 1867, Jan. 7. Arraignment 329 1867, Jan. 7. Banks' 106 92 Citations. 1807, Jan. 10. House of refuge 458 1867, Feb. 14. Bradford county; trial before justice 176 1867, Feb. 27. Local; desertion 531 1867, Feb. 28. Bradford; trial before justice 176 1867, Marcli 6. Warren county; trial before justice 176 1867, March 13. Returns 174 1867, Marcli 13. Jurisdiction; Philadelphia 241, 242, 355, 361, 372, 373 1867, March 14. Hawking and peddling 295 1867, March 29. Costs; Dauphin county 521 1867, April 2. Washington county coroner 512 1867, April 10. Jury 368, 369-372, 374, 375, 377, 380, 402 1867, April 12. Potter county; trial before justices 176 1867, April 13. Erie ; evidence at hearings 171 1867, April 13. Desertion 531, 532, 533, 534 1867, April 13. Local; Forest; trial before justices 176 1867, April 15. Indiana county; trial before justices 176 1867, May 22. Philadelphia coroner 512 1868, Feb. 28. Trial by jury before justices 182 1868, April 2. Costs; removal to penitentiary 517 1868, April 11. Costs 183, 50S 1868, April 11. Costs; habeas corpus 226 1868, April 11. Northumberland county; trial before justices 176 1868, April 11. Armstrong and Butler county; trial before justices 176 1868, April 13. Wyoming county; trial before justices 176 1868, April 14. Local; Fairmount park 121, 542 1869. Feb. 18. Interpreter; Philadelphia 418, 518 1869, March 12. Local; Philadelphia and Lancaster; warrants 142 1869, March 12. Local; Bradford, etc 180 1869, March 13. Coroner; Westmoreland county 512 1869, March 19. Insane 230 1869, March 20. Costs; Chester 521 1809, March 29. Arrest 151 1869, April 6. Jury 372 1869, April 15. Costs; Cambria county 521 1869, April 15. Discharge in desertion 534 1869, April 20. Discharge of prisoner acquitted because of insanity 462, 463 1869, April 21. Shooting on Sunday 554 1869, May 21. Commutation of sentence 469 1870, Feb. 12. Commutation of sentence 469 1 870, Feb. 15. Duty on appeal in capital cases 486 1870, Feb. 15. Appeal 478 1870, Feb. 18. Pike county and Wayne county; trial before justices 176 1870, Feb. 19. Tioga and Susquehanna; trial before justices 176 1870, Feb. 23. Crawford county; arrest on bail piece 189 1870, Feb. 25. Lawrence county; trial before justices 176 1870, March 14. Jurisdiction ; Erie custom house lOo 1870, March, 28. Butler county ; interpreter 418,518 1870, March 31. Costs; Schuylkill county 521 1870, April 7. Luzerne county; hawking and peddling 556 1870, May 31. Jury; Philadelphia 372 Citations. 93 1871. March 22. Delaware county; imprisonment 456 1871, April 22. Delaware county; imprisonment 456 1871, April 28. Involuntary manslaughter 297 1871, May 4. Wilkesbarre 542, 543, 572 1871, May 13. Jury 372 1871, May 24. Mercer county; trial before justice 176 1871,June2. Philadelphia; imprisonment 456, 460 1872, Feb. 21. Beaver county ; trial before justices 176, 182 1872, March 8. Lawrence county courts 109, 353 1872, March 9. Bradford and Susquehanna; constable's returns 230 1872, March 13. Constable's returns 230 1872, March 23. Jurisdiction; postoffioe; Philadelphia 105 1872, April 13. Jury; Lancaster county 373, 378 1873, Feb. 19. Costs;. Fayette county 521 1873, March 6. Jurisdiction; postoffioe, Philadelphia 105 1873, Maa-ch 10. Jurisdiction; Harrisburg postoffice 105 1873, April 2. Jurisdiction; Allegheny county 105 1873, April 9. Costs 492, 494 1873, April 10. Costs; York 521 1873, April 10. Clarion county; trial before justices 170 1873, April 10. Bradford and Susquehanna; constable's returns 230 1873, May 19. Allegheny county; nuisances 557 1874, April 29. Imprisonment 472 1874, April 29. Bribery 278 1874, March 18. Jury 369, 372-374, 377 1874, May 11. Costs 497, 499, 501, 520 1874, May 14. Insanity 214, 464, 465 1874, May 19. Detectives 516 1874, May 19. Exceptions 433, 479-481, 485 1874, May 23. Aldermen in cities; third class 123, 139, 543 1875, Feb. 6. Jurisdiction ; magistrates 120, 139, 542 1875, Feb. 27. Allegheny county courts 109, 353, 355, 356 1875, March 5. Jury 372, 377 1875, March 18. Change of venue 108, 363, 364, 365 1875, March 18. Courts 372, 377 1876, March 31. Salaries 512, 514, 515 1876, April 7. Courts 352 1876, April 13. Detectives 516 1876, April 13. Fines 561 1876, April 17. Appeal; summary conviction 508, 539, 569, 570, 572 1876, April 20. Frauds on boarding house keepers 294 1876, May 3. Arrest in Philadelphia for violations of ordinances 148, 542 1876, May 5. Shooting and fishing on Sunday 554 1876, May 8. Vagrancy 114, 118, 473, 509, 541, 556, 559, 571, 574 1876, May 18. Interpreters 518 1877, March 14. Bail 185 1877, March 14. Philadelphia courts 353 1877, March 22. Justice of peace 172 1877, March 23. Statute of limitations 342 1877, March 24. Appeal 47S 94 Citations. 1877, April 4. Juriadiction; Harrisburg postoffice 105 1877, April 18. Accident in mines; coroners 611 1878, May 3. Costs; vagrancy 509 1878, May 5. Pure food; milk 553 1878, May 19. Costs; vagrancy 509 1878, May 22. Plank and turnpike roads 231, 304 1878, May 24. Requisition 159, 163, 165, 166 1878, May 24. Railways 149 1878, May 25. Jurisdiction; receiving stolen goods Ill, 112 1878, June 3. Game 114, 294, 554 1878, June 12. Officers Corporations 291, 294, 307, 342 1878, June 12. Punishment 455, 456 1879, April 30. House of correction 460 1879, May 13. Receiving stolen goods Ill 1879, June 4. House of refuge 460 1879, June 4. Requisition 163, 164, 165, 185, 212, 221 1879, June 11. Abandonment 274 1879, June 11. Coroners' fees 513 1879, July 7. Illegal fees 119 1881, May 11. Salaries 514 1881, June 8. Malicious trespass 103, 113, 119, 541, 566, 575 1881, June 8. Jurisdiction; Allegheny comity 105 1881, June 10. Courts 242, 356 1883, Feb. 15. Jurisdiction; courthouse and postoffice, WiUiamsport 105 1883, Feb. 28. Jurisdiction; courthouse and postoffice, Scranton 105 1883, May 8. Insanity 219, 464, 465, 517 1883, June 5. Jurisdiction; Erie custom house 105 1883, June 13. Jurisdiction ; postoffice, etc 105 1883, June 13. Discharge by county commissioners 476, 500, 506, 534 1883, June 22. Salaries 514 1883, Aug. 7. Courts 355 1885, March 30. Coroners 511 1885, May 21. Pure food 231, 552 1885, May 28. Taking females for intercourse 133 1885, June 3. Embezzlement by tax collectors 342 1885, June 3. Embezzlement by partners 285 1885, June 11. Returns of justices. 174 1885, June 11. Fish 550 1885, June 23. Jury 392 1885, June 30. Regulations in cities of first class 311, 325 1 887, March 22. Larceny by bailees 319 1887, March 24. Courts 354, 355 1887, April 13. Courts-martial 123 1887, April 16. Jurisdiction; Carlisle Indian school 105 1887, April 28. Huntingdon Reformatory 456, 457 ]887,May 6. Mutilation of bills 303 1887, May 6. Obscenity 305 1887, May 6. Discharge by county commissioners 500, 506, 507, 534 1887, May 13. Liquor 231, 320, 473 1887, May 18. Jurisdiction; navigable waters 105 Citations. 95 1887, May 19. Costs 182, 487, 496, 498, 501, 509, 515, 518-520 1887, May 19. Burgess; jurisdiction 123, 139, 543 1887, May 19. Rape 310 1887, May 23. Evidence 171, 220, 238, 245, 423 1887, May 23. Detectives 516 1887, May 24. Stenographers 417, 518 1887, June 14. Cities of second class; jurisciction 121, 139 1887, June 30. Liquors 320 1889, March 9. Hawking and peddling 294 1889, April 4. Eewajds 156 1889, April 23. Bicycles 567 1889, April 23. Limitations of prosecutions for embezzlements by trustees.. 343 1889, May 2. Fish and game 562 1889, May 4. License; mercantile 556 1889, May 4. Milk cans 153 1889, May 7. Jurisdiction; Gettysburg field 105 1889, May 7. Driving on sidewalk 118, 541, 557 1889, May 8. Murder where death occurs in county other than that in which the stroke is given 128 1889, May 9. Receipt of deposits by insolvent bank 285, 325 1889, May 9. Courts 352 ] 889, May 9. Hawking and peddling 556 1889, May 9. Appeal .204, 478, 484 1889, May 9. Coroner's deputies 513 1889, May 13. House of refuge 459 1889, May 22. Fish 149 1889, May 23. Jurisdiction; cities third class 123, 139, 543, 549 1891, June 16. Salaries 514 1891, March 25. Jurisdiction ; mint in Philadelphia 105 1891, May 11. Incorrigible minors 119 1891, May 20. Appeal 486 1891, June 1. Seal to warrants 142 1891, June 2. Coroners 511 1891, June 16. Jurisdiction of police magistrate in cities of second class. . . . 123, 148, 543 1891, June 20. Arrest for cruelty to animals 151 1893, April 14. Second conviction of murder in the second degree 473 1893, May 15. Coroners 511 1893, May 23. Costs; vagrancy 509 1893, June 3. Accessories 125, 126, 359, 474, 475 1893, June 6. Deputy coroner 117, 513 1893, June 6. Habeas corpus 220 1893, June 8. Commitment of minors 119, 460, 541 1893, Jime 12. Juvenile court 115 1895, April 3. Form of oath 170 1895, May 15. Arraignment 330 1895, May 15. Handwriting 424 1 895, June 8. Physicians 567 1895, June 24. Fines 561 1895, June 24. Superior court 108, 209, 478 96 Citations. 1895 1895 1895^ 1895 1895^ 1895^ 189 1896; 1897 1897 1897 1897 1897 1897 1897 1897 1897 1897 1899; 1899; 1899; 1899; 1899; 1899; 1899; 1899; 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 1901 June 24. Trespass 149 June 25. Fines 561 June 26. Gettysburg park jurisdiction 105 June 26. Habeas corpus 214 June 26. Pure food 309, 552 June 26. Imprisonment 455, 461 June 26. Insanity 4C4 July 2. Salaries 512, 514 March 30. Costs; coroner 510, 512 April 29. Labor laws 297 May 29. Timber lands 149 May 12. House of detention 461 May 19. Appeal 186, 478, 479, 487 May 25. Costs 490^92, 494, 497 June 4. Jurisdiction of burgess 123, 139, 148, 544, 547-549, 560 June 18. Labor by convicts 461, 462 June 22. Imprisonment 151 July 14. Salaries 514 Feb. 18. Costs 509 March 22. Game and fish 14D April 3. Jurisdiction of justice 118 April 28. Labor by convicts in Huntingdon Reformatory 436, 457, 481 May 2. Service of warrants in other counties 140-142 May 5. Pure food 472, 55."? May 5. Superior court 108, 209 May 7. Driving on sidewalks 114 Feb. 15. Jurisdiction; Indian selwol farm 105 March 6. Challenges of jury 395, 404 March 7. Jurisdiction in cities, second class 123, 139, 148, 543, 549 March 31. House-breaking 278 April 11. Libel 132 April 19. Costs; appeal from justice 508 May 2. Costs forfeited recognizance 500 May 8. Certification to common pleas 115, 503 May 11. Cities of less than third class 543 May 11. Commutation of sentence 469 May 11. Distribution proceeds of; recognizance 202, 521 May 11. Incorrigible minors 113, 461 May 16. Jurisdiction; cities third class 148, 543 May 17. Salaries 514 May 21. Pure food 553 May 21. Juvenile court 174, 357, 460, 461 May 21. Fish 149, 552 May 29. Fish and game 149, 552 June 10. Jurisdiction of justices for violation of township ordinance. 148, 542, 547-549, 560, 561 July 2. House of deter.tion 461 July 9. Jurors. 396, 404 Citations. 97 1901, July 10. Pure food 553 1901, July 10. Salaries 5U 1901, July 11. Compulsory education 520 1901, July 18. Judicial district 109 Pa. Grim. Proo. — 7. CRIMINAL AND PENAL PROCEDURE IN PENNSTLVAI^IA CHAPTEE I. REDRESS FOE CRIMINAL ACTS. 1. Concurrence of civil and criminal proceedings. 2. In special cases. 3. Effect of concurrence as to trial. 4. Trial for perjury committed in pending civil actions. 5. Where a statutory remedy is provided. 1. Concurrence of civil and criminal proceedings. — The fact that criminal proceedings have been instituted by the commonwealth to punish the offender for the doing of an act made criminal does not bar the party injured from maintaining his action civilly against the defendant. Even in the case of a felony, the civil action does not merge. "In all cases of felony heretofore committed, or vsrhich may hereafter be committed, it shall and may be lawful for any person injured or aggrieved by such felony to have and maintain his action against the person or persons guilty of such felony, in like manner as if the offense committed had not been feloniously done; and in no case whatever shall the action of the party injured be deemed, taken, or adjudged to be merged in the felony, or in any manner affected thereby."^ 2. I» special cases. — An acquittal of knowingly receiving stolen goods is no bar to an action to recover possession of the goods by the owner.^ Nor is arrest on a warrant in an action of assumpsit under tie act of 1842 barred by a previous acquittal of a criminal charge based on the same transaction.^ I^ot is it a bar to the criminal ac- tion that a civil proceeding is pending at the time the indictment is » March 31, 1860, P. L. 427, § 71. » March v. RauUtaohek, 159 Pa. 559, *Rohm V. Borland (Pa.) 7 Atl. 171. 28 Atl. 369. 100 CRIMINAL AND PENAL PROCEDURE. [chap, i. found. Thus, in libel,* or in tlie case of indictment against county commissioners, based upon the finding of auditors, while an appeal from their report is pending.^ But where the injured party is the real plaintiff in the criminal proceeding, and not the commonwealth, the court will not duplicate the relief already given in the civil ac- tion. So, an order for support in a desertion case will be refused where alimony has already been awarded in a pending divorce pro- feeding.* 3. Effect of concurrence as to trial. — The bringing of the civil ac- tion need not be delayed until the termination of the criminal pro- ceedings, but the trial will be suspended until the disposition of the latter.'' The criminal trial will not be postponed imtil the ending of the civil suit Thus, where an indictment for a nuisance has been found, and a bill in equity is subsequently filed to restrain its con- tinuance, the prosecution will not await the judgment of the court in the equity proceeding.* Nor need the termination of an action based upon notes, defended on the ground that they were given by defend- ant's wife, be shown, to allow the prosecution of an indictment for false pretenses and obtaining money by reason of the same; nor is it necessary to show the failure of the civil suit.® 4. Trial for perjury committed in pending civil actions. — Some confusion has arisen as to the right to arrest for perjury committed in a civil proceeding, while the latter is still pending. It has been ruled that the defendant cannot be held to bail, or committed in lieu thereof, during the pendency of the proceeding.' •* But it has been said that such is within the control of and subject to regulations made by the court, and that it may direct a bill of indictment to be submitted to the grand jury, in the meantime, to prevent the running of the statute of limitations. ■'^ Or may arrest where there is danger of de- fendant's flight.'^ Other autliorities have held that the prisoner may be arrested and held to bail, though the criminal trial vdll be post- poned until the termination of the civil proceedings.^* ♦ Poster V. Com. 8 Watts & S. 77. Co. Ct. 596, 1 Pa. Dist. R. 173, 29 W. "Com. V. Hurd, 177 Pa. 481, 35 Atl. N. C. 500; Com. ex rel. Uriah v. Stine, 682; Com. V. Taylor, 12 Pa. Co. Ct. 326, 2 Lack. Leg. News, 179, 13 Lane. L. 2 Pa. Dist. R. 743. Rev. 228; Com. v. Houser, 17 Lane. L. 'Com. ex rel. Tinkler v. Tinkler, 11 Rev. 414; Com. v. Somers, 1 Northamp- Pa. Dist. R. Ill, 59 Phila. Leg. Int. 76. ton Co. Rep. 289. ' Com. V. Snyder, 2 Pa. Co. Ct. 260. " Com. ex rel. Petry v. Reintzer, 13 •Com. V. Snyder, 2 Pa. Co. Ct. 260. W. N. C. 129. •Com. V. Fisher, 9 Phila. 694, 29 "Com. v. Houser, 17 Lane. L. Rev. Phila. Leg. Int. 102. 414. "Com. V. Dickinson, 3 Clark (Pa.) "Com. v. Dickerson, 7 W. N. C. 433; 265; Com. ex rel. Webh v. Davis, 10 Pa. Ex parte Felts, 1 Kulp, 468; Com. v. S 5] EBDEESS FOR CRIMINAL ACTS. 101 5. Where a statutory remedy is provided. — Where a remedy is pro- vided by act of assembly, or a duty enjoined, that remedy must be ex- clusively followed in accordance with the act of March 21, 1806." Thus, where a penalty is imposed by statute an indictment will not lie, though such was proper at common law.^^ But the fact that the board of health is given power to proceed summarily against a nui- sance will not bring the case within the act of 1806, so as to prevent an indictment^* The revised Penal Code of 1860 made similar provision.^'' "In all cases where a remedy is provided, or duty en- joined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect" Wherefore, if acts constituting a specified common-law crime are made a statu- tory offense, the prosecution must be for the latter. Thus, acts which at common law would have been indictable as murder were by the Penal Code of 1860 made punishable as abortion,-'* and a prosecution for the offense, subsequent to that time, must be for the statutory crime.^* Likewise, an indictment for the common-law offense of blackmail cannot be sustained, since such acts are now made a statu- tory crime.^" Moore, 20 Phila. 390, 9 Pa. Co. Ct. 501, Serg. & R. 273. See Irons v. Allen, 169 48 Phila. Leg. Int. 157, Discussed and Pa. 633, 32 Atl. 655. Kxplained in Com. v. Eouser, 17 Lane. "Com. v. Van Sickle, Brightly (Pa.) L. Rev. 414; Bespuilica v. Wright, 1 69, 4 Clark (Pa.) 104. Yeates, 205. "Act March 31, 1860, P. L. 382, § » 4 Smith's Laws, 326, § 13. 183. "Com. V. Evans, 13 Serg. & R. 426; ^Act March 31, 1860, P. L. 382, § 87. Com. V. Lancaster, E. d M. Tump. Road " Com. v. Railing, 113 Pa. 37, 4 Atl. Co. 2 Lane. L. Rev. 59; Com. v. Frank- 459. ford & B. Tump. Road Co. 9 Pa. Co. Ct. "" Com. v. Walsh, 7 Lack. Leg. N3ws, 103; Com. v. Roaring Brook Tump. Co. 362. I Lack. Jut. 351; Brown v. Com. 3 CHAPTEK n. JURISDICTION. 6. Generally. 7. Conferring by consent. 8. Effect where no jurisdiction exists. 9. Jurisdiction of Federal courts. 10. Conflict of jurisdiction between Federal and state courta. 11. Effect of wrongly indicting in state court. 12. Jurisdiction of state courts; supreme and superior. 13. Certiorari to remove pending indictments. 14. Nisi prius. 15. EsB officio judges of lower courts. 16. Habeas corpus. 17. Peace officers. 18. Superior court. 19. Oyer and terminer. 20. The courts of quarter sessions. 21. Power of judges of oyer and terminer and quarter sessions. 22. Surety of peace. 23. Jurisdiction of particular statutory offenses. 24. Effect of indictment in wrong court. 25. Certification of indictment from quarter sessions to oyer and terminer. 26. Certification from oyer and terminer or quarter sessions to common pleas. 27. Appellate jurisdiction of the quarter sessions. 28. Juvenile courts. 29. Coroners' courts. 30. Justice as coroner. 31. Justices of the peace. 32. — ^jurisdiction of penal actions under statute. 33. of penal actions under ordinances. 34. of surety of the peace. 35. of forcible entry and detainer. 36. of two magistrates. 37. Magistrate courts — in cities of the first class. 38. Jurisdiction in cities of the second class. 39. Jurisdiction in cities of the third class. 40. Jurisdiction of burgesses in boroughs. 41. — courts-martial. 6. Generally. — By jurisdiction is meant the power conferred by law upon a court or judicial officer to hear and determine the matter in controversy between litigating parties. The elements of the ju- risdiction of the courta consist of the subject-matter adjudged and 102 § 7] JURISDICTION. 103 of the parties whose rights are affected by such judgment or decree. "The former of these the court acquires by the act of its creation, and possesses inherently by its constitution ; the latter it acquires by its own acts, through the medium of its process and its officers."^ Every power exercised by any court must be found in and derived from the law of the land, and be exercised in the manner prescribed. The Federal courts rest upon the Constitution of the United States and the acts of Congress, while those of the states depend upon the local constitution and the acts of assembly. The powers conferred become operative as provided in the various legislative enactments. Usually a date is Sxed when they shall come into effect, but if not, then as soon as the provision becomes a law.^ 7. Conferring by consent.— The lack of jurisdiction of the sub- ject-matter is fatal at any stage of the proceedings, and an objection thereto cannot be waived by the defendant. He cannot by his con- sent give to the court the lawful power to act, when it has been ex- pressly conferred otherwise, or is withheld. Thus, where the act of assembly did not authorize the transacting of business requiring the intervention of a grand or petit jury, except at regular sessions of the court, unless it were a continued court, a trial for seduction at an irregular session was without jurisdiction, even though the pris- oner consented thereto, for "it is not the consent of counsel which can constitute a tribunal by which a citizen may be tried and punished. It is the law of the land, and that alone, which can constitute and establish such a tribunal.""' Likewise, a defendant cannot give ju- risdiction to the court of quarter sessions in case of arrest under the act of June 8, 1881, which provides that a justice of the peace shall hear and determine the guilt or innocence of the defendant.* Though lack of jurisdiction may be taken advantage of at any time, the ap- pellate court will not reverse if possession by the court is doubtful, where no rights of the prisoner have been infringed, and where the case has already been fully and fairly determined by the court below without objection being raised by the defendant to the jurisdiction.* The same strictness of rule does not apply to acquiring jurisdiction of the person, and mere irregularities in the commencement of the proceeding, by reason of defective process, or even entire absence of process, can be waived.® And the mere fact that a particular mode » 12 Enc. PL & Prac. p. 121. » Com. v. McMahon, 14 Pa. Super. Ct. 'Luok V. Com. 10 Pa. Dist. R. 500, 621. 58 Phila. Leg. Int. 372. ' Bchcjilet/ v. Com. use of Allegheny, 'Mills V. Com. 13 Pa. 627. 36 Pa. 29; Com. v. Gillingham, 6 Phila. *Com. V. Stateer, 5 Pa. Co. Ct 256. 321, 24 Phila. Leg. Int. 244. 104 CRIMINAL AND PENAL PROCBDXJEE. [chap. n. of securing the arrest of the defendant is provided by law does not exclude all other ways in which the person of the prisoner can be brought before the court; and he will not be heard to object, but ju- risdiction of his person will attach.'^ 8. Effect where no jurisdiction exists. — If it appear, after trial or conviction, that no jurisdiction exists, the defendant should not be discharged, but held on detainer for trial in the proper place.* ibid if the evidence shows the crime to have been committed in another state, he should be held a reasonable time to await requisition^papers.' 9. Jurisdiction of Federal courts. — The Constitution of the United States in § 1 of art. 3, provided for the establishment of United States courts, and by the 3d section directed that all trials of crime be held in the state where the said crime was eommitted, which pro- vision is repeated in article 6 of the Amendments. By subsequent congressional enactments, commissioners' courts, district and circuit courts, and circuit courts of appeal were created, in addition to the Supreme Court, and United States comnjissioners are provided for, who are appointed by the circuit courts, and have functions similar to the state justices of the peace.^" The district courts, concurrently with the circuit courts, have ju- risdiction of crime against the United States not capital, committed within their respective districts or on the high seas.^^ Circuit courts have concurrent jurisdiction with the district court as mentioned, and exclusive power to try capital offenses against the United States.^'' The circuit courts of appeal have appellate jurisdiction of writs of error to the district or circuit courts.^* The Supreme Court has original jurisdiction in cases affecting ambassadors, public ministers, and consuls,^* and appellate jurisdiction as provided by acts of Con- gress.^® Ordinarily, the Federal government has exclusive jurisdiction over territory owned by it ; yet where that territory lies within tbe bounda- 'iSe Dows, 1 Phila. 234, 8 Phila. Leg. "U. S. Rev. Stat § 629; U. S. Comp. Int. 138, S. C. 18 Pa. 37. Here the Stat. 1901, p. 503. prisoner was brought by force into the "26 Stat, at L. 827, chap. 517; U. S. state of Pennsylvania for trial, instead Comp. Stat. 1901, p. 547. of by requisition and warrant of the ex- " IJ. S. Const, art. 3, § 2. ecutive of the asylum state. "26 Stat, at L. 827, 828, chap. 517, • Com. V. O'Neill, 10 Pa. Dist. R. 227, U. S. Comp. Stat. 1901, pp. 547-551 ; 58 Phila. Leg. Int. 182, 7 Lack. Leg. V. S. Rev. Stat. § 651, U. S. Comp. Stat. News, 149, 18 Lane. L. Rev. 85. 1901, p. 527 ; U. S. Rev. Stat. § 709, U. 'Simmons v. Com. 5 Binn. 617. S. Comp. Stat. 1901, p. 575; U. S. Rev. "U. S. Rev. Stat. §§ 627-1014; U. S. Stat. § 710, U. S. Comp. Stat. 1901, p. Comp. Stat. 1901, pp. 499-716. 576; U. S. Rev. Stat. §§ 763, 764, U. S. "U. S. Rev. Stat. § 563; U. S. Comp. Comp. Stat. 1901, pp. 594, 595. Stat. 1901, p. 455. § 10] JURISDICTION. 105 ries of tiie state, such ]'urisdiction is not given to the Federal courts unless by act of assembly expressly in such case. It is customary to reserve to the state concurrent jurisdiction in the execution of criminal and civil process. Certain general acts -are to be found by which consent to tlie acquisition of lands for certain purposes, with the reservation as to concurrent jurisdiction, is given. Thus, tlie power to acquire lands for the improvement of navigable waters is granted,^* or to take property for the erecting of postoiEces, custom houses, or other structures to be exclusively owned by the general government and used for ita purposes;^'' and by a large number of acts relating to special buildings and places the same provision is made.^* 10. Conflict of jurisdiction between Federal and state courts. — It is a constitutional provision^* that the jurisdiction of the Federal courts shall extend to "all cases affecting ambassadors, public minis- ters, and consuls." Therefore, if such an offender be indicted in the state courts, the indictment will be quashed because of lack of juris- diction.^" As has been seen, it may be that the state legislature has given to the Federal authorities exclusive jurisdiction of land purchased and used by it within the limits of the state ; but if it is merely occupied, "Act May 18, 1887, P. L. 121, § 1. 9; other property, act February 25, "Act June 13, 1883, P. L. 118, § 1. 1850, P. L. 802; act June 13, 1840, "By act April 12, 1851, P. L. 740; P. L. 680; act March 31, 1823, P. L. act April 2, 1873, P. L. 56; act June 8, 187; Gettysburg Battlefield, act May 7, 1881, P. L. 80; act March 19, 1816, 1889, P. L. 106; roads in Gettysburg amended by act February 14, 1845, P. National Park, act June 26, 1895, P. L. L. 48; act March 10, 1845, P. L. 127, 373; Carlisle Indian School, act April amending act March 19, 1816, for Alle- 16, 1887, P. L. 17; farm in Indian gheny county; act March 10, 1873; P. L. School, act February 15, 1901, P. L. 9. 42, § 4, amended by act April 4, 1877, In certain cases no jurisdiction is ceded P. Ij. 50, for Harrisburg postoffice; act to the United States, but a mere permis- January 25, 1850, P. L. 22; act March sion to occupy two lots for fort in Ve- 14, 1870, P. L. 38; act June 5, 1883, P. nango county, 3 Sm. L. ch. 1858; Erie L. 76, for custom-house, etc., for Erie; Lighthouse, act April 2, 1811, chap, act February 28, 1883, P. L. 6, for 3386. And in certain cases jurisdiction courthouse and postoffice in Scranton; is ceded without reservation (United act February 15, 1883, P. L. 3, for post- States Navy Yard, Phila., act August office and courthouse for Williamsport; 24, 1864, P. Ii. 1017; League island, act for Philadelphia Navy Yard, act March Fd)ruary 10, 1853, P. L. 24, amended 29, 1827, P. L. 153; Naval Asylum, act by act April 4, 1866, P. L. 96; certain April 10, 1834, P. L. 249; arsenal act piers and wards in Chester county, act April 13, 1859, P. L. 570; (Mount April 11, 1825, P. L. 169),_or right to Moriafa Cemetery, act February 17, 1865, serve process is alone retained. P. L. 172), postoffice, act January 30, "U. S. Const, art. 3, § 2. 1857, P. L. 5; act March 23, 1872, P. L. "Com. v. Koaloff, 5 Serg. & R. 545,— 28; act March 6, 1873, P. L. 70; United here rape. States Mint, act March 25, 1891, P. L. 106 CEIMINAIi AND PENAL PROCEDXJRE. [chap. n. the state will have jurisdiction over the property, though used exclu- sively for government purposes.^' Under the express grant of power given by the Constitution, Con- gress passed the judiciary act of September 24, 1789, organizing the Federal courts and vesting them with jurisdiction.^^ By the provi- sion thereof it is declared that the jurisdiction vested in the courts of the United States in the ease of all crimes and offenses cognizable un- der the authority of the United States shall be exclusive of the courts of the several states. So, where Congress enacts legislation making a specific offense cognizable under the authority of the United States punishable, as in the case of passing altered national currency,^* such legislation is exclusive, and an act of the legislature of a state,^* un- dertaking to confer jurisdiction on the state courts to punish the par- ticular offense, is unconstitutional and void f^ and likewise, where it has made certain acts criminal by an oiScer of a national bank, sudx legislation is exclusive; and the acts in Pennsylvania punishing em- bezzlement of funds by officers of banks will confer no jurisdiction in case this offense be committed by a cashier of such an institution,^® Nor will acts of assembly regulating llie duties of officers of banks ap- ply to national banks, since their regulation is entirely under the control of Congress.^'' But it would seem that the officer of a national bank could be prosecuted in the state courts for a common-law offense for which no provision had been made by congressional enactment.^* The state courts may punish a clerk for embezzlement where he is not placed by virtue of his employment under the exclusive con- trol of the Federal government.^® The question of the right of state courts to issue writs of habeas ^' Com. V. Butchmson, 2 Pars. Sel. Eq. 70. The question here raised related to Cas. 384, the United States Mint in the application to officers of national Philadelphia; Com. v. Gain, 1 Legal banks of § 64 of the crimes act of 1860, Opinion, 25, the Carlisle Barracks. forbidding the cashiers of banks from '"U. S. Eev. Stat. § 711, U. S. Oomp. engaging in any other business. Stat. 1901, p. 577. "« Com. v. Luherg, 94 Pa, 85, in which ""U. S. Eev. Stat. §§ 5414, 5415, U. S. the teller of a national bank was con- Comp. Stat. 1901, p. 3662, and § 5431, vioted of the common-law offense of U. S. Comp. Stat. 1901, p. 3671. forgery. "•January 7, 1867, P. L. 1369. "Com. v. EutoUnson, 2 Pars. Sel.Eq. " Com. V. Dale, 3 Pa. Co. Ct. 30. Cas. 384. Here, it was held that a " Com. em rel. Torrey v. Ketner, 92 servant at the mint, who had nothing Pa. 372, 37 Am. Eep. 692. Here, the to do with the coinage of money, and habeas corpus proceedings were institut- who feloniously took the same after it ed before the supreme court of the state had been coined and set apart for use, and the prisoner discharged. could be convicted of larceny. "Allen. V. Carter, 119 Pa. 192, 13 Atl. §§ 11-13] JUEISDICTION. 107 corpus in the case of those imprisoned by Federal authority will be considered under Habeas Corpus, chapter viii., post. 11. Effect of wrongly indicting in state court.—' The 5th section of the act of Congress of March 3, ISSS,*" enacts: "If any suit or prosecution . . . has been or shall be commenced in any state court, against any officer, civil or military . . . [he may] file a petition . . . for the removal of the cause for trial at the next circuit court of the United States to be holden in the district where the suit is pending." But a criminal case cannot be so certified tm- til an indictment has been found in the state court.*^ 12. Jurisdiction of state courts; supreme and superior. — "The juris- diction of the supreme court shall extend over the state, and the judges thereof shall, by virtue of their offices, be justices of oyer and terminer and general jail delivery in the several counties; they shall have original jurisdiction of habeas corpus; they shall have appel- late jurisdiction by appeal, certiorari, or a writ of error in all cases, «»s is now or may hereafter be provided by law."^^ 13. Certiorari to remove pending indictments. — By the act of April 13, 1Y91,^* all proceedings and indictments can be removed by cer- tiorari to the supreme court when specially allowed. The act of June 16, 1836,^* substantially re-enacted the law of 1791, omitting the provision requiring a special allocatur. The Revised Criminal Code of 1860^^ practically re-enacted the act of 1T91, providing for an allowance. The Constitution of 1874 contains no repeal of either the act of 1836 or that of 1860, nor is there anything therein from which the repeal can be implied. These provisions are, therefore, in full force. The only effect of the Constitution of 1874 was to abrogate the courts of nisi prius.*® Indictments may, therefore, be brought upon allowance before the supreme court for such disposi- tion as they see fit to make.^^ The right was reaffirmed in Com. v. Delamater,^^ the court saying: "Such power, however, is to be ex- ercised with extreme caution and only in a cleai- case. It must be exercised in aid of the administration of justice, not to defeat nor needlessly embarrass it ; and it must clearly appear that its exercise " 12 Stat, at L. 756, chap. 81. 220. A dissenting opinion was written " Com. V. Artmcm, 3 Grant Cas. 436. in this case by Justice Trunkey, con- "Pa. Const. 1874, art. 5, § 3. curred in by Gordon and Clark, JJ. " 3 Smith's Laws, p. 30. When the case was certified, the pro- " Pa. Laws, 786. ceedings were sent to the court of quar- " March 31, 1860, Pa. Laws, 439, ter sessions of Lycoming county for § 33. trial. " See Pa. Const, art. 5, § 21. »" 145 Pa. 210, 22 Atl. 1098. "Com. V. Balph, 111 Pa. 365, 3 Atl. 108 CRIMINAL AND PENAL PROCEDURE. [chap. n. is necessary in iJie particular case to secure the defendant an im- partial trial." The facts in this case were thought not to warrant the transfer, and the rule so to do was discharged. A similar deter- mination was reached in Com. v. 8mith,^^ and Quay's Petition.*'* Before the Constitution of 1874, a number of such applications had been before the court.*^ 14. Nisi prius. — Prior to the Constitution of 1874 the supreme court exercised original jurisdiction in the court of nisi prius. By the 21st section of the 5th article it was expressly declared that "the court of nisi prius is hereby abolished ; and no court of original ju- risdiction to be presided over by any one or more of the judges of the supreme court shall be established."*^ 15. Ex officio judges of lower courts. — In addition to this power to sit as a court of original jurisdiction the right existed in the judges of the said court to preside over courts of oyer and terminer and gen- eral jail delivery in the various counties of the state.*^ This power is not abrogated by the constitutional provision abolishing the nisi prius court.** 16. Habeas corpus. — The 3d section of the 5th article also gives original jurisdiction of habeas corpus proceedings, and, in a proper case, the defendant held in any county may be discharged.*® 17. Peace officers. — The chief justice and judges of the supreme court are also justices of the peace ex officio, and have power to take recognizances for good behavior.*® 18. Superior court. — The superior court has no original jurisdic- tion except of writs of habeas corpus.*^ Whenever occasion demands, tie coiirt or any judge thereof has full power to issue the writ re- turnable to the said court.*^ The appellate jurisdiction of both of these courts will be considered subsequently under Appeals, chapter xxv-^ 'post. 19. Oyer and terminer. — Provision is made by the 5th section of »» 185 Pa. 553, 40 Atl. 73. Here, the Com. v. Midkel, 2 Phila. 147, 13 Phila. effect of the act of March 18, 1875, P. Leg. Int. 238. L. 30, providing for a change of venue "Pa. Const, art. 5, § 21. under certain circumstances, was dis- " Com. v. Ickhoff, 33 Pa. 80 ; Com. v. cussed and held not to take away this Drum, 58 Pa. 9. power of the court. "Com. v. Balph, 111 Pa. 365, 3 Atl. " 189 Pa. 517, 42 Atl. 199. 220. ~ Allowed in Com. v. Simpson, 2 " Com. em rel. Torrey v. Ketner, 92 Grant Cas. 438 (in which earlier acts Pa. 372, 37 Am. Eep. C92. discussed); Com. v. Lyon, 4 Dall. 302; " BespuUica v. Cobbet, 3 Yeates, 93. Com. v. McOinnis, 2 Whart. 113; Re- "Act .June 14, 1895, P. L. 212, § 7. fused in Com. v. Franklin. 4 Dall. 255; "Act of May 5, 1899, P. L. 248, § 3. I 19] JURISDICTION. 109 article 5 of the Constitution for the distribution of the state into judicial districts. Such are designated by act of assembly.** As has already been noticed, the justices of the supreme court may sit as judges of the courts of oyer and terminer and general jail de- livery. The act of April 14, 183V*' provides who shall be clerk in such cases.®^ By the 9th section of the same article of the Constitution, "judges of the courts of common pleas, learned in the law, shall be judges of the couils of oyer and terminer, quarter sessions of the peace, and general jail delivery, and of the orphans' court, and within their re- spective districts shall be justices of the peace as to criminal matters." This section does not exclude associate judges not learned in the law, where they exist, from the courts of oyer and terminer."^ The 6th section of the same article provides for the courts in Philadelphia and Allegheny counties.^* The courts of oyer and terminer and general jail delivery shall be held four times annually in every county, at the several times ap- pointed for holding the court of quarter sessions of the respective county,^* and the judges of such court may establish rules of prac- tice.»« The jurisdiction of the court is fixed by the Penal Code.**® "The courts of oyer and terminer and general jail delivery shall kave power : 1. To inquire by the oaths and affirmations of good and lavsrful men of the county, of all crimes committed or triable in such county. 2. To hear, determine, and punish the same, and to deliver the jails of such county of all prisoners therein, according to law. 3. To try indictments found in the quarter sessions, and certified by the said court according to law; and the said courts shall have exclusive ju- risdiction and power to try and punish all pei"sons charged with any of the crimes herein enumerated, which shall be committed within -the respective county, to wit: (1) All persons charged with any "Act of July 18, 1901, P. L. 669. March 13, 1857, P. L. 420; act Febru- "P. L. 333, § 61. arj' 8, 1848, P. L. 25, § 5; act February » Com. V. Drum, 58 Pa. 9. 3, 1843, P. L. 8, §§ 4, 5, 6, 10; P. & L. " O'Mara v. Com. 75 Pa. 424. Dig. 38, 67, 75. As to Allegheny coun- » See also act of February 27, 1875, ty, act April 14, 1851, P. L. 555, §§ 1, -for detailing of judges in criminal 6; act May 4, 1865, P. L. 842, § 1; act -courts in All^heny county. For Erie March 22, 1866, P. L. 297, § 274; a«t •county, see Foust v. Com. 33 Pa. 338; February 27, 1875, P. L. 62. As to also Myers v. Com. 79 Pa. 308. Lancaster county, act March 30, 1852, "Act April 14, 1834, P. L. 333, S 58. P. L. 207, § 4; act January 19, 1863, P. "Act June 13, 1836, P. h. 784, § 21. L. 3, § 1. As to Lawrence county, act The special provisions respecting the or- May 8, 1872, P. L. 273, } 1. ganization of these courts in Philadel- "Act March 31, 1860, P. L. 427, § 31. rphia county are provided by the act of no CRIMINAL AND PENAL PEOCEDUEB. [chap. n. murder or manslaughter, or other homicide, and all persons charged with being accessory to any such crime. (2) All persons charged with treason against the commonwealth. (3) All persons charged with sodomy, buggery, rape, or robbery, their counselors, aiders, and abettors. (4) All persons charged with the crime of voluntarily and maliciously burning any building, or other thing, made punishable in the same manner as arson. (5) All persons charged with mayhem, or with the crime of cutting off the tongue, putting out the eye, slit- ting the nose, cutting off the nose, cutting off a lip, cutting off or disabling any limb or member of a person, by lying in wait, or with malice aforethought, and with intent in so doing to maim or disfig- ure such person, and their aiders and abettors and counselors. (6) All persons charged with burglary. (Y) Every woman who shall be charged with having endeavoi-ed privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female^ which, if it were born alive, would be by law a bas- tard, so that it may not be known whether such issue was bom dead or alive, or whether it was murdered or not. (8) All persons charged with the second or any siibsequent offense of receiving, har- boring, or concealing any robber, burglar, felon, or thief, or with the crime of receiving or buying any goods or chattels, which shall have been feloniously taken or stolen, knowing the same to be so taken or stolen." To this exclusive jurisdiction certain other cases have been added by act of legislature :*^ "That hereafter any person or persons charged with the crime of taking or carrying away, or decoying or enticing away, or secreting any child or person, with intent to extort money or any other valuable thing for the restoration or return of such child or person ; or with having aided, assisted, or abetted in the taking or carrying away, or in tlie decoying or enticing away, or the secreting of any child or person, with intent to extort money or any other valuable thing for the restoration or return of such child or person — shall be triable therefor exclusively in the court of oyer and terminer and general jail delivery of the county where such offense was com- mitted." * 20. The courts of ctuarter sessions.— "The courts of quarter sessions of the peace shall have jurisdiction and power within the respective counties: — 1. To inquire, by the oaths or afiirmations of good and lawful men of the county, of all crimes, misdemeanors, and offenses "July 2, 1901, P. L. 605. § 20] JURISDICTION. Ill whatsoever, against the laws of this commonwealth, which shall be triable in the respective comity. 2. To inquire of, hear, determine, and punish, in due form of law, all such crimes and misdemeanors and offenses whereof exclusive jurisdiction is not given, as aforesaid, to the courts of oyer and terminer of such county. 3. To take, in the name of the commonwealth, all manner of recognizances and ob- ligations heretofore taken and allowed to be taken by any justice of the peace; and they shall certify such as shall be taken in relation to any crime not triable therein, to the next court of oyer and terminer having power to take cognizance thereof. 4. To continue or dis- charge the recognizance and obligations of persons bound to keep the peace or to be of good behavior, taken as aforesaid, or certified into such court by any justice of the peace of such county, and to inquire of, hear, and determine, in the manner hitherto practised and al- lowed, all complaints which shall be found thereon. 5. The courts of quarter sessions shall also have jurisdiction in cases of fines, pen- alties, or punishments imposed by any act of assembly, for offenses, misdemeanors, or delinquencies, except where it shall be otherwise expressly provided and enacted. 6. The said courts shall also have and exercise such other jurisdiction and powers, not herein enume- rated, as may have been heretofore given to them by law."^* ,i Where exclusive jurisdiction is not given to the court of oyer and terminer, the case may be tried in quarter sessions. Thus, for sell- ing liquor without license and for keeping a house for such sale,** or forgery,®" or perjury,®^ or burning of a building under the 138th section of the crimes' act of 1860, which makes such an offense a mis- demeanor,®^ or of receiving stolen goods,®^ or of one charged as acces- sory to the crime of burglary and receiving stolen goods.®* It is to be noticed that the second offense of receiving stolen goods is triable ■» Act June 16, 1836, P. L. 784, | 16. Centre County, 6 Pa. Dist. E. 207; Com. Carried into the Penal Code, act March v. Montague, 25Pittsb. L.J. 137. Butsee 31, 1860, P. L. 427, § 32. contra, Com. v. Lenox, 12 Phila. 601, "Quimney v. Com. 1 Monaghan, 158. 35 Phila. Leg. Int. l7; Com. v. Keyes, "Com. v. Lennom, 1 Browne (Pa.) 4 Pa. Dist. R. 152. The confusion in 40 Appz. these cases likely arose from the act of " Kroemer v. Com. 3 Binn. 577. May 25, 1878, P. L. 147, which gave •' Com. V. MoConnell, 2 Pittsb. 210. the quarter sessions jurisdiction, and This question was discussed in Com. v. which was repealed by the act of May McMahon, 14 Pa. Super. Ct. 621, but the 13, 1879, P. L. 54. point as to jurisdiction is not clearly " Eolmes v. Com. 25 Pa. 221. The decided, though the appellate court de- trial in this case was under the act of dined to reverse. June 16, 1836. As to Tfhether the same " Fulmer v. Com. 97 Pa. 503 ; Com. v. ruling would now be made, under the Goldberg, 4 Pa. Super. Ct. 142; Com. crimes act of March 31, 1860, P. L. V. Lydick, 6 Fa. Dist. R. 282; Singer v. 427, §§ 44, 45, which provides that ac- 112 CRIMINAL AND PENAL PROCEDURE. [cbap. ii. In the oyer and terminer, and it must be so charged.**** But where tlie defendant has been tried once and acquitted, a second charge will not constitute a second offense within the meaning of this provision.®' 21. Power of judges of oyer and terminer and quarter sessions. — Power is also given to these courts by the 32d section, as follows: "The judges of the county courts of oyer and terminer and quarter sessions, and every of them, shall have power to direct their writs or precepts to all or any of the sheriffs or other officers of any of the counties, cities, boroiighs, or towns corporate of this commonwealth, to arrest and bring before them persons indicted for felonies and other offenses, and amenable to the respective court ; each of said courts shall have power to award process to levy and recover such fines, forfeitures, and amercements as shall be imposed, taxed, or ad- judged by them respectively; each of the said courts shall have full power and authority to establish such rules for regulating the prac- tice thereof respectively, and for expediting the determination of suits, causes, and proceedings therein as in their discretion they shall judge necessary or proper; provided, that such rules shall not be in- consistent with the Constitution and laws of this conmionwealth ; each of the said courts is empowered to issue writs of subpoena, un- der their official seal, into any county of this commonwealth, to sum- mon and bring before the respective court any person to give testi- mony in any cause or matter depending before them, under the pen- alties hitherto appointed and allowed, in any such case, by the laws of this commonwealth."®" The judges of the courts of quarter sessions and oyer and terminer in Pennsylvania may also sit as committing magistrates, but the propriety of the exercise of this function in any given case is a ques- tion which the judge must determine in view of all circumstances, and the propriety of the exercise of this right is not reviewable. If he does so sit, he must make a suitable record of his actions.*^ But when sitting as a committing magistrate he has no jurisdiction to conduct a general investigation, such as a general charge of bribery in connection with the city coimcil, when there is no definite charge oeasories as to crimes shall be treated as subsequently repealed. That would be principals, is doubted. See also Com. immaterial, however, since by the V. Montague, 25 Pittsb. L. J. 137. weight of authority the first oiTense is "a Re District Attorney's Fees, 7 Del. there triable, even without the act of Co. Rep. 142. 1878. "Oom. V. Kelly, 13 Phila. 422, 36 "Act March 31, 1860, P. L. 427, § 32. Phila. Leg. Int. 124. It is to be noticed »' Mwreh v. Com. 12 Cent. Rep. 557, 21 that this decision is based on the act of W. N. C. 566, 14 Atl. 375, 36 Pittsb. L. May 25, 1878, giving quarter sessions J. 103. jurisdiction of first offense, which was §§ 22, 33] JURISDICTION. 113 against any specified person. "The legal tribunal for inquiry and investigation based on rumor, or common report, or general charges, is the grand jury."®* 22. Surety of peace. — The court of quarter sessions sitting as jus- tice of the peace e.r of[icio may hold defendant in bonds to keep the peace, but only on cause shown, and not mere complaint, as in the case of a justice of the peace. When such eases are returned by magistrates it may continue or discharge recognizances given, and hold hearings on the complaint.** It may, even after acquittal, bind the defendant to keep the peace and to be of good behavior, by virtue of the act of 34 Edw. III. chap. l.""^ As an incident of conviction, but not as an indictable offense, it may also bind to keep the peaee^^ for such period as it sees fit.''^ 23. Jurisdiction of particular statutory offenses. — By the act of May 11, 1901,'^' power is given to commit vicious or incorrigible minors of the male sex to certain institutions upon complaint and due proof that such minor, by reason of incorrigible behavior or vicious conduct, is beyond the control of his parents, guardians, or custodians. Under the act of May 2Y, 1841, maliing collection of taxes by a tax collector from a person exonerated from the payment of the same punishable by a fine, upon conviction, before any court having compe- tent jurisdiction, the court of quarter sessions has jurisdiction.^* And a proceeding against county commissioners under the act of April 15, 1834, for being interested in the construction of a public building, must be by indictment, and a conviction before a mayor would be set aside. '^° But in a prosecution under the act of June 8, 1881,'^' relating to wilful trespass, a hearing, conviction, and sentence before a justice of the peace, and the entry into a recognizance by the defendant after a refusal to comply with the sentence imposed, all of which must ap- pear by the magistrate's record, are essential before the court of quar- ter sessions obtains jurisdiction,'^'' and the defendant in such a pro- " Com. V. Smith, 185 Pa. 553, 40 Atl. " Com. v. Duane, 1 Binn. 98, note. 73. ''' Aldermen & Justices of the Peace, " See ante, § 20, subd. 4. 2 Pars. Sel. Eq. Cas. 458. ^Bmiher v. Com. 10 Pa. 339 (here in "P. L. 279. $5,000 ; in such sum and for such length ''* Com. v. Snyder, 2 Luzerne, Leg. of time as the public safety requires) ; Obs. 354. Respublica v. Donagan, 2 Yeates, 437 " Com. v. Thum, 10 Serg. & R. 418. (here recognizance for fourteen years ™ P. L. 82. in $10,000; on default put in jail) ; ''''Hoffman v. Com. 123 Pa. 75, 16 Atl. Com. V. Snyder, 13 Pa. Co. Ct. 660, 4 609 ; Com. v. Groff, 8 Lane. L. Rev. 267 ; Northampton Co. Rep. 95. ' Com. v. Burns, 17 Lane. L. Rev. 17). Pa. Crim. Proc. — 8. 114 CRIMINAL AND PENAL PROCEDURE. [chap. il ceeding cannot waive these requirements or by consent confer juris- diction.^® Similarly, under § 34 of the act of June 3, 1878,''® relating to the taking of fish, a complaint must be made before a justice of the peace, and a refusal to pay the fine imposed, and the entry into a recogni- zance for appearance at the quarter sessions, must appear in order to give jurisdiction.*** So, under the act of May 1, 1899,*^ for wilfully driving upon the sidewaUc,*^ and for vagrancy under the act of May 8, 1876,** the jurisdiction is appellate only. 24. Effect of indictment in wrong court. — The actual trial of an oyer and terminer offense in the court of quarter sessions is a mere nullity, and a judgment will be set aside and the prisoner held to answer in the proper court.** Or, if the indictment be in the proper court, but tlie record show a trial in the quarter sessions, the supreme court will reverse and remand tlie prisoner that the court may amend the record, if the error is merely clerical, or that trial may be had in the oyer and terminer, if the first proceeding was actually in the quarter sessions.*'' 25. Certification of indictment from quarter sessions to oyer and terminer.— Section 32 of the Penal Code*® directs: "When- ever any indictment shall be found in any court of quarter sessions, for any crime or offense not triable therein, it shall be the duty of said court to certify the same into the court of oyer and terminer next to be holden in such county, there to be heard and determined in due course of law." This supplants the act of June 16, 1836 f so, where the indictment is in the quarter sessions improperly, it wiU. not be quashed, but certified to the oyer and terminer.** Where it con- tains one count charging an oyer and terminer crime, and one a quar- ter sessions offense, it may be certified to the oyer and terminer, and though the defendant be acquitted on the oyer and terminer charge, yet his conviction for the quarter sessions offense will be sustained.*® Under the act of June 16, 1836,®" which was supplanted by § 32 of the Penal Code, which gave the power to the court of oyer and " Com. V. Stateer, 5 Pa. Co. Ct. Co. Ct. 516, 1 Pa. Dist. E. 636, 5 York 256. Legal Record, 166. '°P. L. 160. "Dougherty v. Com. 69 Pa. 286. ™ Com. V. Owens, 7 Montg. Co. L. Rep. " Hazlett v. Com. 1 Pittsb. 169. 144, 6 York Legal Record, 44; Com. v. "March 31, 1860, P. L. 427. Baylor, 5 Law Times, N. S. 93. " P. L. 784. "P. L. 110, § 3. "'Com. V. Keyes, 4 Pa. Dist. R. 152 '" Com. V. Craine, 2 Pa. Dist. R. " Com. v. Shutte, 130 Pa. 272, 18 Atl 615. C35 " Com. ex ret Davis v. Kehoe, 11 Pa. '"' P. L. 784- §§ 26-28J JXmiSDICTION. 115 terminer to try indictments foi.ind in tlie quarter sessions and certi- fied by the said court, it was held that though a misdemeanor be cer- tified to oyer and terminer, it oould be there tried and a conviction would be sustained.^^ It is doubtful whether the same ruling would not be made, where the 32d section provides only for the certification of indictments found in the court of quarter sessions, which are not triable therein. The certification may take place after the trial in the quarter ses- sion has begun,®^ or has been concluded,®* or even after trial and sen- tence and a writ of error has been served, the court having the power to make an order nunc pro tunc.^* But though such an order may be made, yet that, in itself, is not sufficient; a certificate of this fact, duly authenticated, should be furnished to the oyer and terminer and the order noted in its docket, so that the jurisdiction of the court may appear upon its own records."' 26. Certification from oyer and terminer or quarter sessions to com- mon pleas. — Whenever any judgment or decree for the paying of money shall be entered, or which has in the past been entered, in the court of quarter sessions or oyer and terminer, the copy of said or- der, sentence, decree, or judgment may be certified to any court of common pleas of the same county, and be entered and indexed there as a judgment and collected with like force and effect as if the same had been recovered as a judgment in the latter court.** When an execution has issued upon the same, the defendant shall not be enti- tled to the benefit of any exemption laws.*^ 27. Appellate jurisdiction of the quarter sessions. — This will be dis- cussed under the head of Penal Actions, chapter xxx.^ post. 28. Juvenile courts. — The first act establishing juvenile courts'® was declared to be special legislation, and not uniform in its opera- tion, and violative of art. 5, § 26, of the Constitution of the state, as well as impossible of enforcement. ®® An effort has been made to cor- rect the errors pointed out, in the subsequent act^"" providing for the establishment of juvenile courts and regulating the procedings there- in. By this enactment the courts of oyer and terminer and quarter sessions and justices of the peace are given original jurisdiction of delinquent children as defined in the 1st section thereof. The pro- •^Hackett v. Com. 15 Pa. 95. "Act May 8, 1901, P. L. 143, § 2. « Com. V. Lydick, 6 Pa. Dist. E. 282. « Julie 12, 1893, P. L. 459. "MoMeen v. Com. 114 Pa. 300, 9 Atl. "Courts for Trial of Infants, 14 Pa. 878. Co. Ct. 254, 3 Pa. Disti E. 753, U Lane. "Brown v. Com. 78 Pa. 122. L. Rev. 174, Yerkes, J. '^Dougherty v. Com. 69 Pa. 286. ""May 21, 1901, P. L. 279. This act " Act May 8, 1901, P. L. 143. was, on February 12, 1903, declared un- 116 CRIMINAL AND PENAL PROCEDURE. [chap. ii. ceeding is begun by a petition filed with the clerk of the courts, un- less initiated before a justice of the peace or police magistrate, in which case it shall be transferred to the court After petition filed, summons issues to the custodian of the children, demanding appear- ance within twenty-four hours, and upon default a wan-ant is sent forth. The trial, which is to take place in a separate courtroom, and be recorded in a separate docket called the juvenile docket, takes place before the judge without jury, unless the same be demanded by an interested party. Upon conviction the child is disposed of as provided in §§ 7, 8, and 9. If the defendant be under the age of fourteen, he shall not be confined in any jail or police station. The act of 1901 does not take from magistrates their jurisdiction under the act of April 10, 1835,^"^ to commit children under twelve years of age to the House of Eefuge for incorrigible and vicious con- duct The former act merely refers to delinquent children.^"^ 29. Coroners' courts. — The office of coroner is one of great an- tiquity, and was formerly of importance. His duties have not been imposed by statute in Pennsylvania, though certain acts of Parlia- ment do so fix his powers, and are of force in the state. •'"^ In case of sudden death where there is reason to believe that unlavi^ul means were used, it is his duty to summon a jury and hold an inquest super visum corporis to determine the cause of death. In so acting he is a judicial officer,^"* and may compel the attendance of witnesses by attachment,^"® or hold for contempt the witness who refuges to an- swer. ■'''® But he could not order lihe witness to give bail before a magistrate to appear at the next court.^**** He is a county officer, and his jurisdiction would seem to be coin- cident with the boundaries of the county, and it has therefore been held that the coroner of the county in which the burial takes place does not have jurisdiction to hold an inquest on the body. This should be done where the crime was committed,^ "^ though there is a dictum to the contrary in PicTcett v. Erie Coiudy;^"^ and he may hold his inquest on United States territory within the county, where exclusive jurisdiction has not been ceded.*"* constitutional by the superior court, in ™ Re Power of Corover, 11 Phila. 387, an opinion by W. W. Porter, J. Case 32 Phila. Leg. Int. 142. unreported. ^'^ Com. v. Biggins, 5 Kulp, 269. ""P. L. 133, § 1. "»a Com. V. Biggins, 5 Kulp, 269. ""Re Sholton, 11 Pa. Dist. R. 155, 59 ^'" Rentschler v. Schuylkill County, 1 Phila. Leg. Int. 106. Legal Rec. Rep. 289. "'Roberts' Digest of British Statutes, "»3 Pa. Co. Ct. 23; S. C. 19 W. N. C p. 102. 60. ^Thler v. County, 1 Lehigh Valley, ^'"Allegheny County v. MoClung, 53 L. R. 213. Pa. 482. S§ 30, 31] JURISDICTION. 117 Having held the inquest, and the jury having determined that a certain individual is responsible for the death, "it is still his duty to use prompt measures for apprehending persons so charged ; for which purpose he may direct his warrant to the sheriff for arresting and securing them ; and by the express provision of the statute of 4 Edw. I., § 2, he may not only issue process, but make hue and cry after them."^^° This right is recognized in Pemisylvania. "He is also a committing magistrate, and it is his duty, if the jury find any per- son guilty of homicide, to commit that person to prison, without bail, to await his trial."^^^ And upon this inquisition returned, an in- dictment may be found against the person charged ;^^^ but not against an individual whom the jury of inquest has failed to charge formally wilii the offense.^^* 30. Justice as coroner.— In case there is no coroner by reason of vacancy, or he is absent from the coimty, or unable to attend, or his office is more than 10 miles distant from the place where the death occurred or the body was found, a justice of the peace of the county may hold the inquest.^-'* Jurisdiction in such cases is confined to the cases stated, and his return must state the facts which show that he had junsdiction.^^^ Where the coroner lives more than 10 miles away, a justice of the peace may act, even though there be a coroner's deputy within 8 miles, appointed under the act of June 6, 1893.^^® 31. Justices of the peace. — For the powers of justices of the peace generally in criminal matters, we must look to the common law.^^'^ Their judicial power is recognized in the Constitution of the state.^^* By the weight of authority, the jurisdiction of the justice of the peace is limited to the tovsmship to which he was elected; and where he holds his hearing outside, it is invalid and the prisoner will be dis- charged on habeas corpus.^^® These decisions rest on the act of Feb- ruary 22, 1802,i2'> and the act of June 21, 1839,^21 -^^iiich regulate ""Roberts' DigestBritish Statutes, 106. Pittsb. L. J. 39, 11 Lane. Bar, 123, 3 "^Re Power of Coroner, 11 Phila. York Legal Record, 101, 11 Luzerne 387, 32 Phila. Leg. Int. 142; BentscKler Leg. Reg. 157; Lee's Inquest, 9 Pa. Co. V. Schuylkill County, 1 Legal Rec. Rep. Ct. 474. 289. "° P. L. 330, § 1 ; Reitnauer's Inquest, ^"Com. V. Lafferty, 11 Pa. Co. Ct. 14 Pa. Co. Ct. 46. 513, 1 Pa. Dist. R. 594. "' See Roberta' Digest of British Stat- "" Com. V. Wilson, 36 Pittsb. L. J. 332. utes, 349. '"Act May 27, 1841, P. L. 400, § 15. ""Pa. Const, art. 5, § 1. "'iJe Coroners' Inquests, 3 Kulp, ^^' Com. ex rel. Rasmus v. Brower, 9 451, 1 Pa. Co. Ct. 14, 2 Del. Co. Rep. Kulp, 317, 20 Pa. Co. Ct. 405, 7 Pa. 446; Coroner's Inquest, 20 Pa. Co. Ct. Dist. R. 254; Com. v. Durham, 8 Del. 660, 7 Pa. Dist. R. 566; Meteger's Case, Co. Rep. 335; Com. v. Thurman, 1 8 Pa. Dist. R. 573; Coroner's Inquest, Docket, 97. 1 Pa. Co. Ct. 677, 2 Del. Co. Rep. 475; ^^"3 Smith's Laws, 490, S 1 Reitlinger's Inquest, 2 Kulp, 127, 30 ^"- P. L. 380, § 13. 118 CRIMINAL AND PENAL PROCEDURE. [chap. n. the residence and office of justice of the peace, but it has been ques- tioned whether this is applicable to criminal cases, and a conviction for perjury was sustained where the false oath was taken before an alderman while acting in another ward than that for which he was chosen.^^^ It is to be noticed that statutory authority has been given to the justice of the peace to locate his office on the grounds of agricultural associations within the state during the days of their annual exhibi- tion, and there issue warrants for disorderly conduct and breach of the peace, and such violation of rules as are protected by law, and to hear and determine such cases as fully and effectually as if con- ducted in his regular office.^^* Their jurisdiction in case of in- quest super visum corporis, as given in the act of 1841, has already been noticed. Before this enactment no such power existed.^^* 32. — jurisdiction of penal actions under statute. — Provision is made in a large number of penal acts for proceedings before justices. "No good purpose would be subserved by referring in detail to any of these acts, except such as have been the subject of judicial discussion. The acts relating to landmarks, etc., of 1700, which do not state defi- nitely therein the method of recovering the forfeitures and penalties prescribed, have been corrected in this respect by the act of March 20, 1810,^^^ which gives the justice jurisdiction to bind over the al- leged offenders to the next court of quarter sessions for trial. He has power to collect penalties from peddlers selling foreign goods un- der the act of March 28, 1799 j^^s gi^j^ ^.j^g ^ct of April 2, 1830,^" to try and convict persons charged with vagrancy under the act of May, 1876,^^* but he has no power to commit the defendant for trial in the quarter sessions.^^^ It would seem that he could commit in no case, but sentence merely to compulsory labor.^^®* The same is true in case of incorrigible children, though he may commit to the House of Eefuge.^^" So, he has jurisdiction of the offense of wil- fully driving on the sidewalk, under the act of May 7, 1889,^'* and a hea-ring cannot be waived and the party bound for court,^^^ and the ™ Com. V. Frank, 21 Pa. Co. Ct. 120, "" Com. ex rel. Davis v. Kehoe, 11 Pa. 7 Pa. Dist. R. 143, 1 Dauphin Co. Co. Ct. 516, 1 Pa. Dlst R. 636, 5 York Rep. 6. Legal Record, 166. "»Act April 3, 1899, P. L. 27. "»aC7om. v. Scott, 25 Pa. Co. Ct. 210; "*Ex parte Sohultn, 6 Whart. 269. Vagrant's Case, 4 Pa. Co. Ct. 615. «'6 Smith's Laws, 161, § 27. ^'° Com. v. Po«on, 5 Del. Co. Rep. "' 3 Smith's Laws, 358, § 3. 290. "'P. L. 147, § 2; Com. v. Winchester, '"P. L. 110. 3 Clark (Pa.) 34. ^'^Com. v. Craine, 12 Pa. Co. Ct. 286, •» P. L. 154, 8 2. 2 Pa. Dist. R. 615. § 33] JURISDICTION. 119 same is true of the proceeding for wilful ti-espass under tiie act of April 17, 1861/33 as amended by the act of June 8, 1881.^^* And where the justice has power to impose a sentence after conviction on complaint for assault and battery, by authority of local acts, an in- dictment based on a return will be quashed.^*® So, he has power to impose penalties for the talcing of illegal fees under the act of March 20, 1810, as modified by the act of March 28, 1814,i3e and under the enlarging act of July 7, 1879.'^'^ Such officer has no jurisdiction under the act of May 4, 1889,^^® for failure to take out a transient mercantile license, since the prosecution must be by indictment in the quarter sessions.^*® ]!v"or can he, under the act of June 8, 1893, which authorizes the commitment of minors to the custody of chari- table societies, convict the parents of cruelty to their children.^*" Under the act of February 1, 1866,^*^ applying to Allegheny county, he has jurisdiction to try and summarily convict disorderly per- sons/*^ and he is authorized to commit vicious and incorrigible male minors by the act of May 11, 1891,^*^ and to hold delinquent chil- dren by the juvenile court act of May 21, 1901.-'** 33. of penal actions under ordinances. — The act of April 15, 1835,^*^ gives to aldermen and justices of the peace of every city, in- corporated township, or borough in this commonwealth power to hear and determine actions of debt for penalty for the breach of any ordi- nance, by-laws, or regulations of such city, township, or borough in the same manner and subject to the same right of appeal as debts un- der $100 ; and such actions are to be instituted in the corporate name of such city, township, or borough. The act of April 5, 1849,^*® gives the same power to all justices and aldermen. In so far as pro- ceedings under borough ordinances are concerned, the jurisdiction of justices is limited to the justices of the borough passing the ordi- nance, by the borough act of 1851.^*'' Cases discussing jurisdiction under special charter or acts of as- ^==P. L. 62. ™ Stroudsburg v. Brown, 11 Pa. Co. "*P. L. 82; Com. v. Btatzer, 5 Pa. Ct. 272, 1 Pa. Dist. R. 334, 9 Lane. L. Co. Ct. 256; Hoffman v. Com. 123 Pa. Rev. 171, 3 Northampton Co. Rep. 158. 75, 16 Atl. 609; Com. v. Burns, 17 ^'^ Kitchen's Estate, 30 Pittsb. L. J. Lane. L. Rev. 171; Com. v. Oroff, 8 N. S. 100. Lane. L. Rev. 267; Com. v. Clarh, 3 Pa. '^'P. L. § 516. Super. Ct. 141. '" Com. v. Bedshaw, 12 Pa. Co. Ct. 91, '»= Com. V. Smith, 23 Pa. Co. Ct. 491. 2 Pa. Dist. R. 96, 23 Pittsb. L. J. N. S. "»6 Smith's Laws, 228, § 26; M'Gon- 100, 10 Lane. L. Rev. 171. ahy V. Courtney, 7 Watts, 491 ; Barto- "" P. L. 187. Utt V. Aohey, 38 Pa. 273. '"P. L. 279, § 11. '='P. L. 194, § 1; Miliken v. Mitchell, '"P. L. 291. 28 Pittsb. L. J. 302. '"P. L. 409, § 7. ™P. L. 86, §1 1, 2. »'Aet April 3, 1851, P. L. 320, § 32. 120 CMMINAL AND PENAL PROCEDURB. [chap. ii. sembly are found as to Northern Liberties/** as to Lancaster,^*® aa to Williesbarre.'^" The question of appeals from judgments imposed will be consid- ered under the head of Appeals, chapter xxv., post. 34. of surety of the peace. — Jurisdiction is also given to the justice to take STirety for good behavior of all those v/ho are not of good fame, by the statute of 34 Edw. III., which is in force in this state. ■'^^ Surety for good behavior is more extensive in its nature than surety of the peace, and should not be required except under circumstances of urgent necessity. ■'^^ Surety of the peace is demandable of right on oath or affirmation that a person believes he is in danger of being hurt in body or es- tate.*®^ It should not be demanded where the offense is past, unless there be fear of future danger ;^^* but where there is this danger of bodily injury, it is demandable even by a wife against her hus- band.is5 35. of forcible entry and detainer. — In cases of forcible entry and detainer, by the English acts in force in Pennsylvania justices were given jurisdiction, and means were provided for the return of the possession of the premises taken. ■'^* But by the crimes' act of March 31, 1860,^°^ indictment for the offense is now made the ex- clusive remedy. 36. of two magistrates. — If two informations be lodged the same day before two justices, the one before whom the information was first made will have exclusive jurisdiction.^^* 37. Magistrate courts — ^in cities of the first class. — The Constitu- tion of the state provided for the establishment of magistrates' courts in the city of Philadelphia, which should exercise the criminal juris- diction which is now exercised by aldennen.^"® "The jurisdic- tion of each of said magistrates shall extend throughout the city and county of Philadelphia, and they shall be, by virtue of their office, ex officio justices of the peace ; they shall have all the powers and ^"Ellmore v. Hoffman, 2 Ashin.(Pa.) "'Act March 31, 1860, P. L. 427, § 159. C; Com. v. Snyder, 13 Pa. Co. Ct. 660, "'Barter v. Com. 3 Penr. & W. 253, 4 Northampton Co. Rep. 95. and see Lancaster v. Baer, 5 Lane. Bar, "* Com. v. Keeper of Prison, 1 Ashm. No. 28. (Pa.) 140. "" Jones V. Wilkesharre, 2 Kulp, 68 ; "° Com. v. Springer, 2 Del. Co. Rep Wilkesharre v. Stewart, 16 Pa. Super. 6, 14 W. N. C. 26. Ct. 347. "^Blythe v. Wright, 2 Ashm. (Pa.) '" Roberts' Digest of British Statutes, 428 ; Com. v. Stoever, 1 Serg. & R. 349; Com. v. Duane, 1 Binn. 98, note. 480. "''Com. V. Duane, 1 Binn. 98, note. ""P. L. 382, §§ 21, 22. Respuhlica v. Montgomery, 1 Yeates, "" Com. v. Martin, 7 Pa. Co. Ct. 153. 419. "" Pa. Const. 1874, art. 5, § 12. § 38] JURISDICTION. 121 shall exercise the same jurisdiction, civil and criminal (except as herein otherwise provided) as is now, by law, exercised by aldermen of said city, and shall be liable to the same limitations and restric- tions, pains and penalties that are now imposed upon aldermen by the laws of this commonwealth. Where by law two aldermen are now required to hear and determine any matter brought before tliem, the same jurisdiction shall be exercised by one magistrate."^®" "The said magistrates shall, from time to time, select from among tlinir number such magistrates as shall be necessary to act as committiisg magistrat&s at the several police stations in the city of Philadelphia, and in doing so they shall in all cases assign magistrates to duty at the station or stations which shall be most convenient to the place where their courts are held. JSTo magistrate shall receive any addi- tional compensation for acting as committing magistrate at any po- lice station. Said magistrates' courts shall be open fi-om 9 o'clock in the morning until 4 o'clodt in the afternoon of each and every judicial day; provided, however, that said magistrates may issue process and hear causes at any time."^®^ Such magistrates have jurisdiction to punish violations of the act of April 14, 1868,^®^ re- lating to Fairmount park and which provided that such cases should be tried before an aldermaji, since magistrates were provided by the act of 1875 to take the place of aldermen.^®^ 38. Jurisdiction in cities of the second class. — By the act of June 14, 1887,^®* police power is vested in the mayor and five police mag- istrates. Their jurisdiction and power were fully set forth in 1891. "Section 1. All police magistrates in all cities of the second class in this commonwealth shall have full and complete jurisdiction, power, and authority to receive and take criminal informations, on oath or affirmation of, and subscribed to by, the affiant, accusing any person or persons of the commission of any felony or misdemeanor, where such felony or misdemeanor has been committed within the corporate limits of the city in which such police magistrate resides and is ap- pointed, and to issue warrants for the arrest of such persons so ac- cused, administer oaths and hold preliminary hearings in all such cases, and commit to jail, or bind over for trial at the next term of the proper court of the proper coimty, or discharge such accused per- son or persons as the evidence produced at such hearing or bearings may warrant. Section 2. In £l11 cases the person or persons so ac- »°Act Februaiy 5, 1875, P. L. 56, § "=P. L. 1083, § 22. 12. ^"Philadelphia use of Fairmount '"'Act February 5, 1875, P. L. 56, §§ Park v. Junker, 9 Pa. Dist. R. 673. 16, 17. '"P. L. 395. 123 CRIMINAL AKD PENAL PROCEDURE. [chap. n. cused of any felony or misdemeanor shall be admitted to bail by one or more sufficient sureties to be taken before the police magistrate before whom such information may be made as aforesaid, or before any judge, justice, mayor, recorder, or alderman, where the offense charged has been committed, except such persons as are precluded from being bailed by the Constitution of this commonwealth ; provid- ed, also, that persons accused as aforesaid of murder or manslaughter shall only be admitted to bail by the supreme court or one of the judges thereof, or a president or the judges of the court of oyer and terminer and quarter sessions of the peace; persons so accused as aforesaid of arson, rape, mayhem, sodomy, buggery, robbery, or burg- lary shall only be bailable by the supreme court, or any of the judges of the court of oyer and terminer and quarter sessions of the peace, or the mayor or recorder of such city. Section 3. The said police magistrates shall likewise have full and complete power, jurisdiction, and authority to administer oaths and examine witnesses, and hear, determine, and punish, according to the laws and ordinances of such city, all cases of arrests upon view, or upon information made and warrant issued, by the police of the city in which such police magis- trate may reside or be appointed, of all persons who may be found engaged in or be charged with drunkenness, disorderly conduct, sell- ing liquor contrary to law, maintaining a disorderly house, or bawdy house, lewd, indecent, or lascivious behavior on the streets or else- where, gambling, creating riots or disturbances, vagrants, beggars, prostitutes, disturbers of the public peace, known or reputed pick- pockets, burglars, thieves, watch stuffers, cheating, swindling, per- sons who abuse their families, and suspicious persons who can give no reasonable account of themselves, or violating any of the laws or ordinances of such city. Section 4. The said police magistrates shall likewise have full and complete jurisdiction of suits for the recovery of fines and penalties imposed by any and all ordinances of the city in which they reside and are appointed, and of all cases of summary convictions arising under the laws and ordinances of such city, with full power to hear the said cases, administer oaths or affirmations therein, decide the same, enforce the penalty, collect the fine or com- mit to prison as the case may be, according to the provisions of the law and ordinances applicable thereto. Section 5. It shall and may be lawful for any such police magistrate, where vagrants shall be found vnthin the city in which such police magistrate resides or is appointed, to commit such vagrants (being thereof legally convicted before him on his own view, or by the confession of such offenders, §§ 39-41] JURISDICTION. 123 or by the oath or affirmation of one or more credible witnesses) to the workhouse of the county within which such city is situate, if such there be, otherwise to the common jail of such county, there to be kept at hard labor by the keeper of such workhouse or jail, for any time not less than thirty days nor more than six months."^®* This power is now seated in the city recorder and five police magistrates by the act of 1901.i«« 39. Jurisdiction in cities of the third class. — Here the criminal jurisdiction is seated in a mayor, who is given the power of an alder- man,^ ®^ and in one alderman for each ward, who is to have the same power as the justice of the peace.^^® 40. Jurisdiction of burgesses in boroughs. — No jurisdiction was conferred by the borough act of 1851 upon burgesses to entertain suits to recover penalties for violation of borough ordinances. ■^®® Ju- risdiction was given to them by the act of May 19, 1887,^^° to exer- cise the criminal power, jurisdiction, and authority of the justices of the peace for the enforcement of the ordinance of the borough for the collection of fines and penalties imposed under the same. This provision was held to give no power to enforce the collection of the fine by summary conviction, but merely by proceedings of civil na- ture ;^''^ but under this act he can issue a warrant to arrest a disturber of the peace. ^^^ The jurisdiction to proceed summarily has been since given by the act of June 4, 1897,^''^ which provides : "All ac- tions, prosecutions, complaints, and proceedings for the violation of borough ordinances, and for the collection of fines and penalties im- posed thereby, may be commenced by warrant or by summons at the discretion of the chief burgess or justice of the peace before whom the complaint is made or the proceeding begnin, but no warrant shall be issued, except upon complaint on oath or afiirmation specifying the ordinance for the violation of which the same is issued."^''* 41. — courts-martial. — Courts of inquiry are authorized by statute to try certain offenses of militiamen in the service of the state of Pennsylvania. Such power and the penalties that may be imposed are provided for by the act of April 13, 1887.^'^^ «» Act June 16, 1891, P. L. 303. '" Agnew v. Washington, 7 Pa. Co. Ot. "•Act March 7, 1901, P. L. 20, art. 180; Plymouth v. Penkoh, 7 Kulp, 101; 16. ■ GalUtzen v. Gains, 15 Pa. Co. Ct. 337, "'Act May 23, 1889, P. L. 133, art. 7 Kulp, 479, 12 Lane. L. Rev. 61. 7, § 3. '" Com. V. Black, 12 Pa. Co. Ct. 31, "» Act May 23, 1874, P. L. 230, § 32. 2 Pa. Dist. R. 46. "»Act April 3, 1851, P. L. 320; Com. ™ P. L. 121. V. Thompson, 110 Pa. 297, 1 Atl. 375; "'Bolivar v. Coulter, 10 Pa. Dist. R. Bchlager v. Nanticoke, 4 Kulp, 244. 171, 58 Phila. Leg. Int. 133. "°P. L. 133, § 1. '"P. L. 23, §§ 78, 86-88, 92, 95, 96. CHAPTEE III. JURISDICTION AS DETERMINED BY LOCALITY OF CKIMB. 42. Generally. 43. Treason against the state. 44. Crimes committed by accessories to felonies. 44a. Crimes committed by accessories to misdemeanors. 45. Crimes committed near boundary lines. 46. Crimes committed on journeys. 47. Offense begun in one county and completed in another. 48. Homicide where death occurs without the state. 49. Offenses committed on boundary waters. a. On the Delaware. 6. On foreign vessels on the Delaware. c. On the Monongahela. d. On Lake Erie. 50. Bigamy. 51. Larceny. 62. Receiving stolen goods. 53. False pretenses. 54. Forgery. 55. Conspiracy. 56. Libel. 57. Fornication and bastardy. 58. Taking females for intercourse. 69. Desertion. 60. Locality of crime against the United States. 42. Generally. — Crimes aaid penalties are in their nature local, and jurisdiction thereof is restricted to the state within which the crime is committed, or the penalty is provided. Therefore, one state court cannot punish for any offense committed in another state, or enforce the penal laws thereof. It is a general common-law rule that crimes are cognizable and punishable only within the jurisdiction where they are committed.-^ So, where an unnaturalized foreigner was in- dicted in Philadelphia for fraudulently voting for officers in tliat city, while serving with the militia in the District of Columbia, tlie ^ Com. V. Kunsmatm, 41 Pa. 420. 124 §g 43, 44] JURISDICTION FIXED BY LOCALITY OF CRIME. ISS act of 1839 providing for voting by such persons, it was held that a demurrer must be sustained for lack of jurisdiction.^ Like- wise, the offense was held not to be consummated in Pennsylvania, where goods were sent by an express company to an agent in Balti- more, and were there appropriated, since the express company was not the agent of the defendant so as to make a delivery to the carrier in Philadelphia a delivery to him.^ 43. Treason against the state. — There are a few exceptions to the rule just stated. Thus, by the iSd section of the Penal Code* pro- vision is made for the trial of treason against the commonwealth, committed out of the jurisdiction of the state, the offender to be tried in the iirst county in which he shall be apprehended or into which he shall be first brought. But "whatever extraterritorial effect such laws may have is the result, not of any original power to extend them abroad, but of that respect which, from motives of public policy, other nations are disposed to yield to them, giving them effect with a wise and liberal regard to common convenience and mutual benefits and necessities."^ Of course, under such circumstances extradition could not be ob- tained through the executive department of the asylum state, since the defendant would not be a fugitive from justice. 44. Crimes committed by accessories to felonies. — Accessories be- fore the fact to any felony may be indicted, tried, convicted, and punished in all respects as may be the principal felon.* This section was subsequently extended to any felony under any act of assembly.'' "If any person shall become an accessory after the fact, to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force, or that may be hereafter in force, he may be indicted and convicted as an accessory after the fact to the principal felony ; . . . and the offense of such person, how- soever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act by reason of which such person shall have become accessory had been committed at the same place as the principal felony.'"® This section provides for the case of a party becoming an accessory after the fact in one county to a felony committed in another giving 'Com. V. Kunzmann, 41 Pa. 429. Campbell v. Com. 84 Pa. 187; Brandt 'Com. V. Dunn, 8 Phila. 505. v. Com. 94 Pa. 290. 'March 23, 1860, P. L. 427. 'Act June 3, 1893. P. L. 286, § 1. 'Com. V. Kunzmann, 41 Pa. 429. 'Act March 31, 1860, P. L. 427, S •Act March 31, 1860, P. L. 427, § 44; 45. 126 CRIMINAL AND PENAL PROCEDUKE. [chap. iir. jurisdiction over tJie crime of sucii accessory to the courts of the county having jurisdiction over the crime of the principal offender.® 44a. Crimes committed by accessories to misdemeanors. — "Every per- son who shall counsel, aid, or abet the commission of any misde- meanor punishable under this act, for whom no punishment has been hereinbefore provided, shall be liable to be proceeded against and punished as the principal offender."^" It will be noticed that this provision applied only to misdemeanors recognized by the crimes' acts of 1860. Since then a similar enactment provides for any mis- demeanor punishable under any act of assembly of the common- wealth for which no other punishment is provided.^-^ 45. Crimes committed near boundary lines, — To prevent confusion Avhich occurs in laying the venue, where a crime has been committed so near county lines as to render it doubtful in which of two counties it has been actually perpetrated, the 4:8th section of the Penal Code was enacted. It provides: "In order to obviate the difficulty of proof as to all offenses committed near the boundaries of counties, in any indictment for felony or misdemeanor committed on the boun- dary or boundaries of two or more counties, or within the distance of 500 yards of any such boundary or boundaries, it shall be sufficient to allege that such felony or misdemeanor was committed in any of the said counties; and every such felony or misdemeanor shall and may be inquired of, tried, determined, and punished in the county within which the same shall be so alleged to have been committed, in the same manner as if it had been actually committed therein."^^ 46. Crimes committed on journeys. — For similar reasons the 49th section finds its place in the Penal Code. "In order to obviate the difficulty of proof as to offenses committed during journeys from place to place, in any indictment for felony or misdemeanor commit- ted on any person or on any property, upon any stage coach, stage, wagon, railway car, or other such carriage whatever employed in any journey, it shall be sufficient to allege that such felony or misdemean- or was committed within any county or place through any part where- of such coach, wagon, cart, car, or other carriage shall have passed in the course of the journey during which such felony or misde- meanor shall have been committed ; and in all cases where the center or other part of any highway shall constitute the boundaries of any two counties, it shall be sufficient to allege that the felony or misde- » Report in the Penal Code, 48. "Act of June 3, 189.S, P. L. 286, § 1. "Act March 31, 1860, P. L. 382, § "Act March 31, 1860, P. L. 427, § 180. 48. § 47] JURISDICTION FIXED BY LOCALITY OF CRIME. 127 meanor was committed in either of tke said counties through, or ad- joining to, or by the boundaries of, any part whereof such coach, wagon, cart, car, or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed ; and in any indictment for any felony or misdemean- or committed on any person or on any property on board any vessel whatsoever employed in any voyage or journey on any navigable river, canal, or inland navigation, it shall be sufficient to allege that such felony or misdemeanor was committed in any county or place through any part whereof such vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed ; and in all cases where the side or bank of any navigable river or creek, canal, or inland navigation, or the center or other part thereof, shall constitute the boundary of any two counties, it shall be sufficient to allege that such felony or misde- meanor was committed in either of the said counties through, or ad- joining to, or by the boundary of any part thereof, such vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed ; and every felony or misdemeanor committed in any of the cases aforesaid shall and may be inquired of, tried, determined, and punished in the county or place within which the same shall be so alleged to have been com- mitted, in the same manner as if it had been actually committed therein."^* Application of this section to an indictment for a crime committed upon a journey from a point within the state to one with- out has been made by a lower court, where an indictment for larceny and receiving stolen goods was found in Pittsburg for goods taken from a train running between that city and Denniston, Ohio. The court instructed the jury that if they found that the larceny was committed by the defendant on the journey, and that he had posses- sion of the goods within the jurisdiction on the evening of the day after the larceny was committed, the burden was on the defendant to show that the larceny was committed outside of the jurisdiction. Similar instructions were given as to the charge of receiving stolen goods.^* 47. Offense begun in one county and completed in another. — The court of the county in which liie oflFense is actually committed is the one that will have jurisdiction to try the offender. Thus, where cer- tain works were erected in Centre county, which polluted a stream flo"wing through the adjoining county of Huntington, the indictment "Act March 31, 1860, P. L. 427, § 49. "Com. v. Lavelle, 3 Pa. Co. Ct. 668. 128 CRIMINAL AND PENAL PROCEDURE. Lchap. hi. ■was held to be properly laid in the first.^^ Statutory provision is made for the case of murder, where death occurs in a county different from that in which the blow was struck. The 46th section of the Penal Code of 1860 provided that where poison is administered or a blow struck in one county from which the victim dies in another, "an indictment found therefor by jurors of the county where the death shall happen shall be as good and effectual in law as if the stroke, poisoning, or other cause of death had been given, done, or committed in the same county where such indictment shall be found, etc."^^ Some confusion arose in determining whether this section gave exclusive jurisdiction to the court of oyer and terminer of the county in which the death occurred, but as the 31st section gave to the court of oyer and terminer power to inquire of all offenses com- mitted in the county, it was held that the two counties had concurrent jurisdiction. '^ This question is now set at rest by the act of May 8, 1889 :^® "If any person hereafter shall be feloniously stricken, poisoned, or re- ceive other cause of death in one county, and die of the same stroke, poisoning, or other cause of death in another county, then an indict- ment found therefor by jurors of the county where the person was feloniously striclcen, poisoned, or received other cause of death shall be as good and effectual in law, as well against the principal in sueli murder as against the accessory thereto, as if the death had occurred in the same county where such indictment shall be found; and the proper courts having jurisdiction of the offense shall proceed upon the same as they might or could do in case such felonious stroke, poisoning, or other cause of death, and the death itself thereby en- suing, had been committed and happened all in one and the same county." 48, Homicide where death occurs without the state. — The 47th sec- tion of the Penal Code, March 31, 1860,^^ provides for the jurisdic- tion where death occurs out of the state for the cause of the death within. "If any person shall be feloniously stricken, poisoned, or receive other cause of deatli within the jurisdiction of this state, and shall die of such stroke, poisoning, or other cause of death at any place out of the jurisdiction of this state, an indictment therefor, found by the jurors of the county in which such stroke, poisoning, or other cause of death shall happen as aforesaid, shall be as good and ■"Com. V. Lyons, 1 Clark (Pa.) " Com. v. Cio/p, 5 Montg. Co. L. Rep. 497. J»8. '"Act March 31, 1860, P. L. 427, § "P. L. 135, § 1. 48. "P. L. 427. I 49] JURISDICTION FIXED BY LOCALITY OF CRIME. 139 effectual, as well against the principal in any such murder, as against the accessory thereto, as if such felonious stroke, poisoning, or other cause of death, and the death thereby ensuing, and the offense of such accessory, had happened in the same county where such indictment shall be found ; and the courts having jurisdiction of the offense shall proceed upon the same, as well against principal as accessory, as they could in case such felonious stroke, poisoning, or other cause of death, and the death thereby ensuing, and tlie offense of such accessory, had both happened in the same countv where such indictment shall be found." 49. Offenses committed on boundary waters. — a. On tlie Delaware. — ^By a compact entered into September 20, 1783, between the states of ISfew Jersey and Pennsylvania, it was provided " 'that each state shall enjoy and exercise a concurrent jurisdiction within and upon the water, and not upon the dry land, between the shores of said river, . . . but that in all capital and other offenses, trespasses, or damages committed on said river, the judicial investigation and determination thereof shall be exclusively vested in the state wherein the offender or person charged with such offense shall be first appre- hended, arrested, or procured.' This was followed by the act of the legislature of September 25, 1T8C, providing for the exercise of such jurisdiction by extending the limits of the counties bordering upon the Delaware river to the shore of JSTew Jersey." The wording of this compact is sufficient to include all criminal offenses committed on a bridge erected over said river, although the framers of the agree- ment did not contemplate the case which arose ;^" and the state in which the prisoner is first arrested has exclusive jurisdiction to try the offender. If already apprehended in one state, and subsequently brought for trial in the second state, the case will be discharged.^^ h. On foreign vessels on the Delaware. — The state courts have ju- risdiction of offenses committed on the Delaware river, subject to liie compact witti New Jersey already noticed.^^ So, the courts of Phila- delphia have jurisdiction of an indictment for assault and battery committed on board a ]!^orwegian ship in the port of that city.^^ " Com. V. Shaw, 22 Pa. Co. Ct. 414, consuls should sit as judges in disputes 8 Pa. Dist. R. 509. between captains and crews without in- -^ Com. V. Frazee, 2 Phila. 191. terference by the local authorities, un- ^ Respubliea v. Davison, 4 Yeates, less the conduct of the crews should dis- 125. turb the order and tranquillity of the ^' Com. V. Luchness, 14 Phila. 363, 37 country. It was held that this treaty Phila. Leg. Int. 83. In this case the contemplated civil differences, and not vice consul intervened, declaring that the criminal offense of assault and bat- a treaty between Norway and Sweden tery by a sailor upon hi* captain, and the United States required that Pa. Crim. Proe. — 9. 130 CKIMINAL AND PENAL PEOCBDUKE. [ohap. hi, c. On the Monongahela. — Crimes committed on the Monongaliela river passing between two counties are provided for by the act of April 10, 1807,^* in which the middle of the river is declared the boundary between the counties adjoining the same; and when it is doubtful on which side of the middle the offense has been committed the defendant may be prosecuted in the county in which he is found. d. On Lake Erie. — The commonwealth of Pennsylvania has the same jurisdiction over the waters of Lake Erie adjacent to the terri- tory ceded to the commonwealth by the United States as though that territory had been embraced in the original charter to William Penn, and the legislative powers of the commonwealth over those waters are absolute, except so far as they may be restrained by Congress for the purpose of carrying into effect the admiralty and maritime laws of the United States-^^ The locality of crime in particular offenses. 50. Bigamy. — Bigamy occurs and is complete at the time the sec- ond marriage takes place f^ and where it appears that the ceremony took place without the statei, the court would not have jurisdiction to try the indictment, even though both the defendant and the woman lived within the county in whose court the bill was found.^^ 51. larceny. — The offense of larceny occurs where the property js appropriated with the felonious intent to steal. So, where spoons were stolen in Delaware and brought into Pennsylvania, the court of this state would have no jurisdiction to try the prisoner for that crime, though h© would be held to give the authorities of Delaware the opportunity to ask for his requisition f^ and the court would have jurisdiction to try the offense of larceny by bailee, where the prop- erty was hired vdthin the county with the felonious intent to defraud, though the actual appropriation occurred in another county.^® 62. Receiving stolen goods. — In case of receiving stolen goods, which is made by act of assembly an offense, it would seem that the court of the county in which the receiving took place would have ju- risdiction to try the offender. If the indictment were not for receiv- ing stolen goods, but as accessory after the fact of the thief, then, un- der the 45th section of the Penal Code, he could be tried in the county in which the principal offense took place. To give such court ju- "Chap. 2851. "Simmons v. Com. 5 Biim. 617; Gom,. "Dunlap V. Com. 108 Pa. 607. v. Mulholland, 6 Phila. 280, 24 Phila. " Oise V. Com. 81 Pa. 428, 2 W. N. C. Leg. Int. 69. 689, 33 Phila. Leg. Int. 257. "Com. v. Bmith, 1 Clark (Pa.) 400. "Com. V. Huckel, 4 Pa. Co. Ct 576. §§ 53-55] JURISDICTION FIXED BY LOCALITY OF CRIME. 131 risdiction it would be necessary to indict the defendant as accessory, and not as receiver.^" 53. False pretenses. — In cases of false pretenses and frauds, where the statements are mailed to the vendor in another county or state, and goods delivered to a carrier for shipment as a result thereof, the court of the county or state in which the vendor lives has jurisdiction of the offense. Thus, in Com. v. KarpowsTei/^^ the conviction in the county in which the vendor resided was sustained when the purchaser, living in a different county, made false representations therein to the vendor's agent, upon the strength of which the goods were sold, and the vendor delivered the goods in the country where he resided to a common carrier, addressed to the purchaser. The court of quarter sessions of the county in which the delivery of goods was made ha^ ex- clusive jurisdiction to try the offense.*^ Though the property be se- cured in another state by means of false statements sent from this state, and the crime be punishable in the former, yet extradition will not be granted on application of the governor of the demanding state, since the defendant cannot be called a fugitive from justice.** A conviction for an attempt to commit this crime, which was un- successful, was sustained in the county in which the letter containing the false representations was addressed and posted.** 54. Forgery. — On indictment for forgery it was held that there was no jurisdiction in the court of the county in which the forged ordfer purported to be dated, when there was no proof that it was given or published therein, and the goods obtained on the order were actually furnished in another county. The intent to defraud, and the fraud committed, must be shown to be in the county where the offense is tried.*^ 55. Conspiracy. — The venue of the crime of conspiracy is the coun- ty in which the unlawful combination is made; but if there be any overt act committed in another county whose court is trying the of- fense, this will be evidence that the conspiracy was there renewed, »» Com. V. O'Tfeill, 10 Pa. Dist. R. 227, News, 149. (Courts of quarter sessions, 18 Lane. L. Rev. 85, 7 Lack. L. News, § 20, a/nte. 149. But see oontra, Com. v. Lauder- "167 Pa. 225, 31 Atl. 572. milch, 1 Pa. Dist. R. 460, where the "Com. v. Goldstein, 3 Pa. Co. Ct. court held, on indictment for receiving, 121 ; Com. v. Balph, 18 Pa. Co. Ct. 242 ; that defendant could be treated as an Com. v. Bchmunck, 26 Pa. Co. Ct. 113, accessory after the fact, and convicted 11 Pa. Dist. R. 115, 32 Pittsb. L. J. N. in the county in which the goods were S. 235, 18 Montg. Co. L. Rep. 48. stolen, although received in another. " Com. v. Traoh, 3 Pa. Co. Ct. 65. This case is discussed and dissented '* Com. v. Springs, 2 Legal Gaz. 93. from in Com. v. O'Neill, 10 Pa. Dist. "Com. v. Fagcm, 12 Pa. Co. Ct. 613, K. 227, 18 Lane. L. Rev. 85, 7 Lack. L. 2 Pa. Dist. R. 401. 188 CRIMINAL AND PENAL PROCEDURE. [ouap. hi. and will be sufficient to give jurisdiction. The overt act may be committed by any of the conspirators or their agents.^® The. conspiracy must be proved to exist within the jurisdiction of the court. "The overt act is evidence of the conspiracy in this coun- ty, and within this jurisdiction, and therefore if you find a conspir- acy did exist elsewhere between the parties named in this indictment, they may be punished here without any evidence of an express re- newal of their agreement or combination, for the law considers that wherever they act, there they renew, or, perhaps, to speak more prop- erly, they continue, their agreement, and this agreement is renewed or continued as to all wherever any one of them does an act in fur- therance of their common design."^'^ 56. Libel. — Prosecutions for libel must be in the county of publi- cation, and there is such a publication as will give jurisdiction where it is shown that a manuscript was posted and received by the printer at a postoffice within the county trying the offense.^^ It has been held that if a person composes a libel in one county, with intent to publish it in another, and afterwards does so publish it, he may be indicted in the first.** So, in Com. v. Dorrance*° the jurisdiction of the Pennsylvania court was sustaiueti, where the libelous letter was prepared in the county, delivered to a messenger to be carried out of the state, and actually published beyond the state limits. No defendant can bo criminally tried in more than one county of the state for the same libel against the same person, though ther^ be a publication in several.*^ 57. Fornication and bastardy. — In cases of fornication and bas- tardy, where the fornication tabes place within the state, and the child is born without the state, the court of quarter sessions can sentence upon conviction for the fornication alone. *^ Under the act of September 3, 1Y91,** which has been supplanted by section 38 of the crimes' act, the court of the county where the bastard was bom has jurisdiction of the indictment for fornication and bastardy, although it appears that the fornication took place in another county.*'' "Com. V. Spencer, 6 Pa. Supei-. Ct. "Clark, Criiti. Proc. 13. 256; Com. v. Gillespie, 7 Serg. & E. "10 Lane. Bar, 197, 36 Phila. Leg. 469, 10 Am. Dec. 475; Com. v. Corlies, Int. 158. 8 Phila. 450, 3 Brewst. (Pa.) 575; Com. "Act April 11, 1901, P. L. 74. V. Tack, 1 Brewst. (Pa.) 511; Com. " Com. v. 17o7fcer, 2 Pa. Dist. R. 727 ; V. Bterlmg, 10 Lane. L. Rev. 4i. Com. v. Bostwick, 17 Pa. Co. Ct. 9, 5 "Com. V. Westervolt, 11 Phila. 461, Pa. Dist. R. 120. 32 Phila. Leg. Int. 346. " 3 Smith's Laws, 37. " Com. V. Wolfinger, 16 Pa. Co. Ct. " Ueikes v. Com. 26 Pa. 513. 257, 7 Kulp, 537. § 58] JURISDICTION FIXED BY LOCAUTY OP CUIMB. 133 The 38th section of the act of March 31, 1860,*° now provides: "If a bastard child is begotten out of the state, and born within the state, or begotten within one of the counties of this state, and born in another, in the latter case the prosecution of the reputed father shall be in the county where the bastard child shall be born, and the like sentence shall be passed as if the bastard child had been, or shall have been, begotten within the same county, and in the former case — viz. : of a bastard begotten without the state and bom within it— the like sentence shall be passed, except in the imposition of a fine, which part of the sentence shall be omitted." Under this act a conviction of fornication in one county would bar a subsequent prosecution for bastardy in the county in which tJie child was born.*® And a con- viction for fornication and bastardy in the second county, where the child was born, is good, even tliough the facts show the commission of statutory rape at the time of the fornication in the first county.*'' Since the fornication and bastardy may both be punished in the county in which tlie child is born, except as to a fornication when it takes place outside of the state, it is proper to begin a prosecution and secure the arrest of defendant, even before the birth of the child, in the county where the mother has her legal settlement, since it is pre- sumed that the child will be bom there, and an application to dis- charge upon bail in such a case will be refused, but the time of trial is delayed until the prima facie forum is conclusively ascertained.** Of course, if the child should not be bom within that county, the court would have no jurisdiction, and the prisoner would be dis- charged. 58. Taking females for intercourse. — The question has arisen as to the jurisdiction of the court in case of indictment under the act of May 28, 1885,*^ charging the taking and enticing of a female for the purpose of sexual intercourse. Where she was enticed from the first county into the second, where the trial took place, the court stated this rule in his charge to the jury: "If the taking was within one county, and the child there consented to the sexual intercourse, the courts of another county would have no jurisdiction, although the sexual intercourse may have taken place in the latter county ; if, how- ever, the intention to have sexual intercourse was formed by the de- fendant in the former county, but was not communicated to the girl "P. L. 382. *(7oTO. V. Boeshore, 2 Del. Co. Rep. "Com. V. Lloyd, 141 Pa. 28, 21 Atl. 23, 2 Chest. Co. Rep. 115. 411. "P. L. 27. "Com. V. Davidheiser, 20 Pa. Co. Ct. 200. 134 CRIMINAL AND PENAL PROCEDUEE. i[chap. ni. until she was in the latter county, then the taking was a continuous act, and the court of the latter county would have jurisdiction."®" 59. Desertion. — Tor jurisdiction of this offense, see § 688, post. 60. Locality of crime against the United States, — The place of pros^ ecution for offenses against the United States is determined by provisions in the Constitution, and by acts of Congress. All trials shall be "in the state where the said crimes shall have been commit- ted ; but, when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed."'^ And persons accused of crime shall have the right to trial by jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.®^ Crimes committed on the high seas or elsewhere out of the jurisdic- tion of any particular state or jurisdiction are to be tried in the dis- trict in which the offender is first found or into which he is first brought.®* '°Com. V. Kaniper, 3 Pa. Co. Ct. 276, also U. S. Rev. Stat. §§ 661, 662, 729, 1 Northampton Co. Rep. 29. U. S. Comp. Stat. 1901, pp. 542, 585. "U. S. Const, art. 3, § 2. "V. S. Rev. Stat. § 730, U. S. Comp. °'U. S. Const. Amend, art 6. See Stat 1901, p. 685. CHAPTER IV. AKREST. 61. Process. 62. The information. 63. By whom made. 64. Swearing to. 65. Charging oifense. 66. The warrant. 67. By whom issued. 68. Bench warrants. 69. Where prisoner charged with felony is in another county. 70. Where prisoner charged with misdemeanor in aiiother counl^^ 71. To whom directed. 72. Eequisites of warrant. a. In whose name. 6. Description of offense. c. Description of person. d. Seal. 73. Alias warrant. 74. Issuing and executing the warrant. 75. Arrest with warrant. 76. Bight to break in doors. a. By officer. 6. By citizen. 77. Kight to kill in arresting. o. By officer. B. By citizen. 78. Arrest without warrant by officer. a. For felonies. 6. Tor misdemeanors. c. For violation of ordinances. d. Under special statutes. 79. Arrest without warrant by individual. a. For felony. 6. For misdemeanor. 80. Disposition of prisoner when arrested without warrant; 81. Exemption from arrest. a. Members of legislature, 5. Electors. c. Election officers. d. Sunday. e. Pendency of civil proceedings. 82. Waiver of irr^ularities. 83. Search warrants. 133 136 CRIMINAL AND PENAL PROCEDURE. [chap. it. 84. Posse comitaUis. 85. Hue and cry. 86. Rewards for arrests. 87. Rewards for apprehending horse thieves. 88. Proceedings to recover. 61. Process. — When a crime has been, committed, it is necessary that the offender be brought by some process before a tribunal made competent by law, where his guilt or innocence may be determined. The usual method of instituting proceedings is by warrant of ar- rest, after complaint on oatli or information, and a binding over for trial after hearing. Yet it is not always necessary to pursue this mode, as will be noticed hereaftear.-^ "The word 'process' has in law a well-established legal meaning in its application to the commencement of the proceeding ; it is used to designate the writ or other judicial means by which a defendant is brought into court to answer a charge, though there may afterwards be issued in the progress of tlie case interlocutory and final process. In criminal cases, where a person is to be brought into a court for trial, the term 'process' is used to designate the warrant which is issued for his arrest, whether before or after indictment found. It is properly called in this, and in all like instances, 'process,' because it is the means or proceeding which in practice issues to secure the appearanoe and the control of a defendant in court."* 62. The information. — The complaint shall be made upon "prob- able cause, supported by oath or affirmation, subscribed to by the af- fiant."* This provision is not satisfied by swearing that "it appeared to him from common rumor and report that tliere was strong reason to suspect," etc. ;* or, "deponent is informed and expects to prove," without stating the informant or expressing affiant's belief in the existence of probable cause; and the indictment based thereon after hearing cannot sustain the verdict of guilty, but judgment will be arrested f or, "on information received, saiiJi," etc., where the name of the informant, facts communicated, and affiant's belief therein are not shown.® A -yrarrant should, not, therefore, be issued on an affida- vit or charge made merely on information and belief, unless there are some facts or grounds stated in the information as the founda- tion of such belief, and it is averred that the affiant believes such in- " Com. V. Wilson, 2 Chest. Co. Rep. * Conner v. Com. 3 Binn. 38. 164. ^Com. y. .Clement, 8 Pa. Dist. R. 'Philadelphia v. Oamplell, 11 Phila. 705. 163, 32 Phila. Leg. Int. 12. " Com. v. Roland, 18 Lane. L. Rev. 25. ' Pa. Const. 1874, art. 1, § 8. Indictment quashed. §§ 63-65] AREEST. 187 formation to be trueJ But a statement under oath charging the facts •'to the best of his knowledge, information, and belief," is sufficient.* 63. By whom made. — The complaint must be' made by one per- mitted so to do by law, and it would seem that one incompetent to testify cannot Thus, a married woman is not validly held upon a warrant based on information of the husband charging larceny* or adultery.^" But it would be proper for husband or wife to so in- form in the case-s where they are allowed to testify generally, which are in proceedings for desertion and maintenance, and in any crimi- nal proceedings against either for bodily injury attempted, done, or threatened upon the other. ^^ In prosecutions for injury to the sepa- rate real property of the wife, where the parties are living apart, the right to make complaint for forcible entry and detainer has been sus- tained.^^ A constable may institute the proceeding,*^ or a sheriff,** or asso- ciate judge.*' 64. Swearing to. — The information should be sworn and subscribed to, but a transcript alleging defendant to have been charged on oath is enough to raise a presumption that it was duly sworn to.*® Though the failure to swear and subscribe is ground to ask for a discharge be- cause of an illegal commitment, yet-, where the case has been re- turned and a bill found by the grand jur^' after a hearing of wit- nesses, it is too late to object.*'' 65. Charging offense. — A criminal offense must be charged to have been committed, and where, on hearing, a mere trespass appears, the action cannot be changed into one for damages.*® iTo new informa- tion can be made for the same offense, where one is outstanding. If the warrant issued by reason of the first was returned non est inven- tus, the justice may issue a second or alias wan-ant*^ ''Charge to Grand Jury, 3 Pittsb. 174. " Oirts v. Com. 22 Pa. 351. The su- ' Com.v. Green, 1S5 Pa. 641,40 Atl. 96. preme court declined to decide whether ' Gom.v.Woodcroft, 17 Pa. Co. Ct. 554. it was ground for new trial, when, un- " Com. ex rel. Boyd v. The Jailer, 1 der such circumstances, he sat on the Grant Cas. 218. But see Com. v. Geary, bench, though taking no part in the 9 Pa. Co. Ct. 60, in which the court trial, on the ground that the facts did says that though the husband cannot be not appear on the record. a witness, he can make the information. " Com. v. Hooper, 15 Pa. Super. Ct. "Act May 23, 1887, P. L. 158, § 2. 227, 8 Del. Co. Rep. 89. ^''Com. V. White, 18 Phila. 496, 44 "Com. v. Brennan, 193 Pa. 567, 44 Phila. Leg. Int. 26. Atl. 498. The contrary was held in "Com. V. Bennett, 1 Pittsb. 261. Com. v. Schall, 5 York Legal Record, ^■^ Clark V. Com. 123 Pa. 555, 16 Atl. 137. 795. It is no ground to quash array of " Clader v. Hhepowich, 13 Pa. Co. Ct. jurors in such case that shefiff has key 469, 2 Pa. Dist. R. 824. to wheel, and aids in drawing, in the " Com. v. Williams, 2 Del. Co. Rep. absence of proof of misconduct. 204, 1 Lane. L. Rev. 366. 138 CEIMINAL AND PENAL PROCEDUKE, [chap. it. If the cause of action set forth for arrest under the act of July 12, 1842, is defective, the holding of the defendant by the court will be sustained, since the only purpose of the warrant under this act is to have the court determine whether cause exists, and a failure to object before this hearing will be considered a waiver.^" 66. The warrant. — The warrant is a formal precept issued by some competent authority, in the name of the commonwealth, to some au- thorized officer, or individual, directing the apprehension of some al- leged offender, and the bringing of him before some proper person to be dealt with according to law. Article 4 of the Amendments to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no war- rant shall issue but upon probable cause, supported by oath or af- firmation, and particularly describing the places to be searched and the persons or things to be seized." A similar provision is found in the Constitution of the state of Pennsylvania : "The people shall be secure in their persons, houses, papers, and possessions from unrea- sonable searches and seizures ; and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation, subscribed to by the affiant."*^ Such portions of this section as concern warrants only guard against their abuse by issuing them without good cause or in such general or vague form as may put it in the power of the officers who execute them to harass innocent persons under pretense of suspicion ; for if general waarants are allowed, it must be left to the discretion of the officer on what persons or things they are to be executed. But it is nowhere said that there shall be no arrest without warrant.^^ !N^or would the provision have any application to the case of a person held for trial by a magistrate for interference with the duties of his office.^* 67. By whom issued. — The right to issue warrants was given by the common law to justices of the peace or aldermen. This criminal jurisdiction has always been recognized in Peomsylvania. By the first Constitution every ward, township, and district was authorized to elect such a magistrate for the period of seven years, and prior to the Constitution of 1790, besides the ordinary duties each held a reg- ular court of sessions. By the 1st section of the 5th article of the "Com. V. McCahe, 22 Pa. 450. "Wahely v. Bart, 6 Binn. 316. "Pa. Const, art. 1, § 8. "Com. v. MoClure, 10 W. N. C. 466. §§ 68, 69] ARREST. 139 Constitution of 1874, we find that "the judicial power of this com- monwealth shall be vested in a supreme court, in courts of common pleas, courts of oyer and terminer, and general jail delivery, courts of quarter sessions of the peace, orphans' courts, magistrates' courts, and in such other courts as the general assembly may from time to time establish." The election, number, and terms are fixed by arti- cle 5, § 11. In Philadelphia, provision was made by the act of March 11, 1789,^* for the issuing of warrants by aldermen. The same pow- ers possessed by other justices were then given.^^ Magistrates' courts were subsequently established.^® In cities of the second class, power is vested in the mayor and the aldermen by the act of June 14, 1887,^'' and subsequently, by the act of March 7, 1901,^® in a city recorder and five police magistrates. In cities of the third class, aldermen are provided for by the act of May 23, 1874,^^ and under certain circumstances power is vested in the mayor by the act of May 23, 1889.30 Similarly, the burgesses in boroughs of the commonwealth exercise the same criminal powers as justices of the peace in the enforcement of ordinances and collection of fines and penalties.*^ 68. Bench warrants. — The judges of the supreme court, of the oyer and terminer and general jail delivery, and of the quarter sessions of the peace are authorized to issue warrants to sheriffs and coroners of the respective counties, when need may be.^^ 69. Where prisoner charged with felony is in another county. — By the 1st section of the Penal Code of 1860, "The judges of the supreme court, of the court of oyer and terminer and jail delivery, of the courts of quarter sessions, or any of them, shall and may di- rect their writs and precepts to the sheriffs and coroners of the sev- eral counties within this commonwealth, when need shall be, to take persons indicted for felonies or other offenses before them, who may dwell, remove, or be received into another county." The 2d section provides that "where any person charged Avith having committed any felony, in any city or county of this commonwealth, shall go or es- cape into another county thereof, it shall and' may be lawful for the president or any judge of the court of common pleas in the county where the said person may be found to issue his warrant authorizing «2 Smith's Laws, 469. «P. L. 20, art. 17, § 110. » Act March 29, 1851, P. L. 272, § 12. " P. h. 230, § 32. ""Pa. Const, art. 5, § 12; Act Feb. 5, "P. L. 277, art. 7, § 3. 1875, P. L. 56. "Act May 19, 1887, P. L. 133, § 1; "P. L. 395, I 7; Act June 16, 1891, Act June 4, 1897, P. L. 121. P. L. 303. " Act March 31, 1860, P. L. 427, § 1. 140 CRIMINAL AND PENAL PROCEDURE. [chap. iv. and requiring the sheriff of the said county to take the said person and conduct him to the proper county."^^ One arrested under the provisions of this section can, of course, sue out a writ of habeas corpus to test the regularity of the process and his identity with the person charged, though in such proceeding the merits of the ease can- not be inquired into.^* 70. Where prisoner charged with misdemeanor in another county. — It will be noticed that provision was made by the 2d section mentioned for the case of a fugitive charged with commission of a felony. This did not apply to the case of misdemeanors.^^ Prior to the act of May 2, 1899, for such case, the 3d section of the Penal Code pro- vided a means of arrest by the issuance of a warrant in any county, which would entitle the officer to whom directed to aj^prehend the fugitive in any other county in which he might be, in case said war- rant was first backed or indorsed by an alderman or justice of the peace of the city or county in which said fugitive then was. The 4th section protected the magistrate who thus backed the warrant from liability for so doing. The act of May 2, 1899, makes the original warrant sufficient for the arrest without backing it by enacting "that in case any person against whom a warrant may be issued by any judge or alderman of any city, or justice of the peace of any county in this commonwealth, for any offense there committed, shall escape, go into, reside, or be in any other city or county out of the jurisdiction of the judge, alderman, or jiistice of the city or county granting such warrant as aforesaid, it shall and may be lawful for the person to whom such warrant was originally directed, or the per- son having such warrant for execution, to execute the same, and ar- rest such offender in such city or county, out of the jurisdiction of the alderman, justice, or justices granting such warrant aforesaid, and to carry the defendant before any alderman, justice, or justices in the city or county in which siich offender may be appi'^hended ; and in case the offense for which such offender shall be so appre- hended shall be bailable in law by any alderman or justice of the peace, and such offender shall be willing and ready to give bail for his appearance at the next court of general jail delivery or quarter sessions, to be held in and for the city and county where the offense , was committed, such alderman, justice, or justices, in the city or coimty where such offender was apprehended, shall and may take "Act March 31, 1860,P. L. 427.§§ 1,2. Grant Cas. 218. This case was based "Com. V. Taylor, 11 Phila. 386, 32 on the act of April 4, 18Q7, 4 Smith's Phila. Leg. Int. 142. Laws, 293, of which the section men- "Oom. ex rel. Boyd v. The Jailer, 1 tioned is a transcript. § 711 ARREST. 141 such bail for his appearance, in the same manner as the alderman or justices of the peace of the proper city or county might have done; and the said alderman, justice, or justices of the peace of such other city or county so taking bail shall deliver or transmit such recogni- zance and other proceedings to the clerk of the court of general jail delivery or quarter sessions, where such offender is required to ap- pear by virtue of such recognizance, and such recognizance and other proceedings shall be as good and effectual in law as if the same had been entered into, taken, or acknowledged in the proper county where the offense was committed, and the same proceedings shall be had therein ; and in case the offense for which such offender shall be ap- prehended in any other city or county shall not be bailable in law by an alderman or justice of the peace, or such offender shall not give bail for his appearance at the proper court having cognizance of his crime, to the satisfaction of the alderman or justice before whom he shall be brought, then the constable or other person so apprehending such offender shall carry and convey him before one of the aldermen or justices of the peace of the proper city or county where such of- fense was committed, there to be dealt with according to law; pro- vided, that the warrants so as aforesaid issued shall be stamped with the official seal of the officer issuing the same, which seal shall contain the name and official title of said officer and the state and county in which he resides."^® 71. To whom directed. — The warrant shall be directed to any au- thorized officer, or to any indifferent person by name, if he be no of- ficer. It is proper to direct it to a constable authorized to execute it, by name, or to the constable of the district generally, but even if it be directed to a constable, if it be executed by the proper officer of the district it will be good.*'' And it will be sustained even if directed to an individual. "The authorities, from the Year Books down to the most recent and ap- proved text vsrriters, ... all agree that a justice of the peace in a criminal case may authorize any person whom he pleases to be his officer. All, however, consider that it is better to direct his process to the constable of the place where it is to be executed ; and this be- cause no other constable, or, a fortiori, a private person, can be com- pelled to execute it"'* The same conclusion is reached by the court in Com. ex rel. Hartman v. Blair County Jail Warden.^^ " May 2, A. D. 1899, P. L. 173. " 8 Pa. Dist. R. 159. 21 Pa. Co. Ct. " Paul V. Vankirk, 6 Binn. 123. 488, 29 Pittsb. L. J. N. S. 258, 15 " Com. ex rel. Simpson v. Keeper of Montg. Co. L. Rep. 19, 7 Del. Co. Rep. the Prison, 1 Ashm. (Pa.) 183. 331. 143 CRrMINAL AND PENAL PROCEDTJRB. [chap. iv. 72. Requisites of warrant. — a. In whose name. — It is necessary that the process be issued in the name of the commonwealth, since the 23d section of the 5th article of the Constitution of 1874 provides that the style of a process shall be "The Commonwealth of Pennsylva- nia." "All prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude 'against the peace and dignity of the same.' " So long, however, as the command is in the name of the commonwealth, it is immaterial where it is introduced.*" A warrant issued by a county treasurer for the arrest of a delinquent tax collector under the provision of the act of April 11, 1799, may be in his name, and not in that of the com- monwealth.*-' h. Description of offense. — The warrant of arrest is sufficient if it contains the name of the offense for the committing of which it was issued. Jlo further particulars are necessary.*^ In case of warrants issued by coimty commissioners, the proceeding by virtue of which it was issued must be shown.*^ c. Description of person. — It must direct the apprehension of a definite person. Th\:s, a "person to be shown" is invalid.** d. Seal. — ^Warrants must be stamped with a seal as provided in the 2d section of the act of June 1, 1891,*^ which act applies except to aldermen in the cities of Lancaster and Philadelphia, which are pro- vided for by section 1 of the act of March 12, 1869.*® By the act of May 2, 1899, providing for the apprehension of fugitives in an- other county by virtue of a warrant issued in the county where the offense was committed, the warrants must be "stamped with the offi- cial seal of the officer issuing the same, which seal shall contain the name and official title of said officer and the state and county in which he resides."*^ 73. Alias warrant. — Where one warrant has been issued, based upon a valid complaint, and the officer to whom it is directed returns it non est inventus, a second or alias warrant may be subsequently issued without tlie necessity of a new complaint.*® 74. Issuing and executing the warrant. — The officer who issues the warrant must have jurisdiction so to do, and an offense must have been charged in the complaint on which it is based; otherwise, it is "White V. Com. 6 Binn. 179, 6 Am. "Com. v. Smythe, Brightly's Digest, Dec. 443. col. 3186. " Com. V. Ruft, 3 Rawle, 95. « P. L. 143. " Com. V. Diffenhaugh, 19 Lane. L. « P. L. 322. Rev. 19. "P. L. 176, § 3. " Com. V. Alexander, 6 Binn. 176. " Com. v. Williams, 2 Del. Co. Ilep. 204, 1 Lane. L. Rev. 366. § 74] AKKEST. 143 a nullity, and all acting under it are trespassers.*® The justice is amply protected in that he may refuse to issue the warrant. "A jus- tice of the peace is not bound to issue his warrant whenever it is ap- plied for. He must use a legal discretion, and determine, after a mature consideration of all the circumstances, whether a warrant should issue."^" If he acts without jurisdiction, he is responsible.^^ But whenever a magistrate has acted honestly, although mistakenly, where he supposed he was in the execution of his duty, although he had no authority to act, he is entitled to the protection of the act of March 21, 1772,^^ requiring notice of the intention to sue, so that amends may be made.^* When a legal warrant is directed and delivered or tendered to a proper ministerial officer, he is bound to receive it, and it must be immediately executed by him, and if he refuses and neglects or de- lays to serve it, either alone or by calling for assistance, he is pun- ishable by indictment. But the officer is not bound to serve a warrant which he knows is illegal.^* If the warrant is void, all acting under it are trespassers,^® though the rule is otherwise if it be merely ir- regular. The rule has thus been stated by the superior court: "In the case of public officers, an inferior acting within the scope of his warrant when apparently regular is always protected, unless the au- thority issuing it was without jurisdiction. It has been a question how far this protection extends, when the superior authority acts ir- regularly and illegally. But now the doctrine appears to be settled, as it should be, that even in such case the inferior has only to look to his warrant, and cannot be required to rejudge the judgment of his superior. . . . The distinction is between the usurpation of a power not conferred, and the irregular or illegal exercise of a juris- diction possessed."^® Where an arrest is made without warrant, the burden is on the de- fendant in an action for false imprisonment to show that the arrest and imprisonment were by authority of law. But if it appear that there was reasonable ground for the suspicion, he is excused.®'^ '"Baird r. Householder, 32 Pa. 168. "Conner v. Com. 3 Binn. 38. Hera <" Respuilica v. Eamnum, 1 Yeates, 71. the information on which the warrant "' Qrohmann v. Kirschman, 168 Pa. was based was not sworn to or affirmed. 189, 32 Atl. 32; McCarthy v. De Armit, ^ Baird v. Householder, 32 Pa. 168; 99 Pa. 63, 36 Atl. 327; Tfleall v. Hmrt, Kramer v. Lott, 50 Pa. 495, 88 Am. 115 Pa. 347, 8 Atl. 628. Deo. 556. "' 1 Smith's Laws, 364. '° Bice v. Burns, 9 Pa. Super. Ct. 58, ^Ross V. Hudson, 6 Pa. Super. Ct. 29 Pittsb. L. J. N. S.243, 43 W.N.C.301. 552, 42 W. N. C. 43; Jones v. Hughes, "McCarthy v. De Armit, 99 Pa. 63, 6 Serg. & E. 299, 9 Am. Dec. 364; Prior 36 Atl. 327; Burk v. Howley, 179 Pa. V. Craig, 5 Serg. & R. 44. C39. 144 CRIMINAL AND PENAL PROCEDUKE. [chap, iv. 75. Arrest with warrant. — The warrant having been given to the constable; it becomes his duty to take the person named therein into custody and to return and produce his body as directed. In so doing,, he may call to his assistance citizens, who will be protected by the authority resting in him.** Where the arrest is empowered by law, even though without war- rant, the officer is not in every case bound before making it to give the party notice of his purpose ; he should, however, announce his official position and demand a surrender. As was said by the Massachusetts court in a case cited with approval in Shovlin v. Com.:^^ "The ex- planation must follow the arrest; and the exhibition and perusal of the warrant must be after the authority of the officer has been ac- knowledged and his power over his prisoner has been acquiesced in." Brewster in his charge to the jury in Com. v, Hewes, *" laid down these principles: (1) An officea-, if resisted, is not bound to exhibit his warrant; (2) if not resisted and there is no well-grounded reason to expect resistance or escape, he should, on request, exhibit his wai^ rant; (3) his refusal to produce his warrant when boiind to exhibit does not justify a defendant in committing an assault and battery on the officer.®^ 76. Right to break in doors. — a. By o-fficer. — An officer, in the ex- ecution of his warrant, may break open doors, if the offender cannot be otherwise taken, in case of a charge for treason, felony, suspicion of felony, actual breach of the peace, or to search for stolen goods, but there seems no well-founded authority for extending this right to misdemeanors unaccompanied by violence.^^ This may be done, even though the officer be acting without a warrant, though such a proceeding is so violent, obnoxious, and dangerous that it should be adopted only in extreme cases where an immediate arrest is requis- ite.^^ l^fot only may the house of the criminal himself be entered, but that of a third person, if the offender fly to it for refuge, though it has been said in such case that the officer acts at his peril, and is a trespasser if the fugitive be not found there. ^* In either case, if an entry has been made, inner doors which obstruct his progress may be opened, or if he be locked in, or otherwise pi'evented from retiring, he may lawfully break out by any means in his power.*" A jus- "Gom V. Black, 12 Pa. Co. Ct. 31, 2 "\ Chitty, Crim. Law, 65; Com. ea Pa. Dist. R. 46. rel. Volpe v. County Prison Superin- " 106 Pa. 369. tcndent, 5 Pa. Dist. R. eS.I. •°1 Brewst. (Pa.) 348. ""1 Chitty, Crim. Law, ."55, 56. "See also Com. v. Weathers, 7 "1 Chitty, Crim. Law, 57. Kulp, 1. "" 1 Chitty, Crim. Law, 58. § 77] ARREST. 145 tice of the peace lias no right to enter the premises of another to secure evidence on view to convict. The rule was thus stated by Yeates, J. : "I gave it in charge to the jury, that a justice of the peace had no right to force himself into the possessions of another, in quest of tes- timony, against the will of the owner ; that in certain specified cases, as treason, felony, pending an affray, where a dangerous wound had been given, for breaches of the peace, or for surety of the peace, a house might be broken open with, or even without, a warrant, but I knew of no principle of the common law, or of any injunction by act of assembly, extending this power."®^ 6. By citizen. — Any private person present when a felony is com- mitted is bound by the law to arrest the felon, on pain of fine and im- prisonment if he escapes through the negligence of the bystanders; and he is justified in breaking open doors upon following such felon. Though the private person may arrest upon probable suspicion, yet, in such case, he cannot break open a house to do so."^ 77. Right to kill in arresting. — a. By officer. — An officer attempt- ing to arrest a felon may use all the force necessary to apprehend him, even to the extent of taking life.*® Where a party may be lawfully arrested for a felony, and he, knowing the cause, flees, so that he can- not be taken otherwise than by killing him, the constable pursuing him will be justified in so doing.®* It has been said that the killing is justified by the officer arresting on suspicion of the commission of a felony, only on proof that such act was done.'^" An officer in arrest- ing one charged with larceny Avas held to be justified in shooting, when an attempt to rescue was made, though the court refused to discharge on habeas corpus, saying that such cases should be passed on by a jury.'^^ Where an attempted arrest is for an ordinary misdemeanor, life can only be taken by the officer where the person to be arrested resists with force, and so endangers the life or person of the official as to make such killing necessary in self-defense.'^^ h. By citizen. — The citizen present when a felony is committed may arrest, though he have no warrant, and may kill in so doing.'^* "Com. V. Eyre, 1 Serg. & R. 347; '"Com. v. Qreer, 20 Pa. Co. Ct. 535, Com. V. Oillam, 8 Serg. & R. 50. 14 Montg. Co. L. Rep. 38, 4 Lack. L. "Brooks V. Com. 61 Pa. 352, 100 Am. News, 42; Com. v. Megary, 8 Phila. 616. Dec. 645. " Com. v. Megary, 8 Phila. 607. The " Com. V. Oreer, 20 Pa. Co. Ct. 535, defendant was admitted to bail. 14 Montg. Co. L. Rep. 38, 4 Lack. L. " (7om. v. Greer, 20 Pa. Co. Ct. 535, News, 42. 14 Montg. Co. L. Rep. 38, 4 Lack. L. "Com. V. Long, 17 Pa. Super. Ct. News, 42. 641; Brooks v. Com. 61 Pa. 352, 100 ■" Brooks v. Com. 61 Pa. 352, 100 Am. Dec. 645. Am. Dec. 645. Pa. Crim. Proc— 10. 146 CRIMINAL AND PENAL PROCEDUEE. [chap. iv. He may likewise kill while pursuing the felon, and will be justified if he can prove that the defendant was actually guilty of a felonyJ* 78. Arrest without warrant by officer. — a. For felonies. — As has been noticed before, the Constitution of the state would seem to re- quire all arrests to be made with a warrant issued on probable cause, and supported by oath or affirmation, but there are exceptions arising from neeeasity. "The felon who is seen to commit murder or robbery must be arrested on the spot or suffered to escape. So, although not seen, yet, if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person."^** The law of the commonwealth of Pennsylvania authorizes an officer to arrest with- out a warrant for an offense which he sees committed, or that has been recently committed, and the offender is escaping ; as, where a burglary has been committed and tlie man is running away. He may also ar- rest without warrant where a felony has been committed, or where he has reasonable grounds of belief that it has been recently committed and that the person whom he arrests is the offender. But even then, if he has time, he should go to a magistrate and get a warrant. ''* "A constable may justify an arrest for reasonable cause of suspicion alone ; and in this respect he stands on more favorable ground than a private person, who must show, in addition to such cause, that a fel- ony was actually committed."^'' When the arrest is made under such circumstances, the officer is not in every case bound to give the party to be arrested clear and dis- tinct notice of his purpose to make the arrest, and also of the fact that he is legally qualified to make it, but it is sufficient to announce his official position and demand the surrender.'^* Though, as we have seen, he may arrest on suspicion of felony where that suspicion is based upon reasonable ground, yet he would not be justified in using deadly weapons to effect the capture, unless the actual commission of the felony be shown. Thus, where the de- fendant, a police officer, was charged vsrith assault and battery with intent to kill, having shot at two boys whom he believed to be guilty of burglary, the court instructed the jury "that a police officer using deadly weapons in the pursuance of his duty did so at his own risk ; where the real circumstances called for the use of weapons by him, " OoTO. V. Z/oni7, 17 Pa. Super. Ct. C41. Atl. 327; McCarthy v. De Armit, 99 " Wakely v. Hart, 6 Binn. 318. Pa. 63. " Com. V. Sti/rk, 5 Lane. L. Rev. 415 ; " Russell v. Shuster, 8 Watts & S. Resh V. Bahr, 15 York Legal Record, 308. 179; Burk v. Howley, 179 Pa. 539, 36 " Shovlin v. Com. 106 Pa. 369. § 78] ARREST. 147 he would be acquitted of all blame; but where he resorted to them upon a mere suspicion of felony, nothing but the actual commission of a felony would excuse him; in other words, the suspicion under which he acted must prove to have been correct"^* h. For misdemeanors. — In misdemeanors, the officer is also justi- fied in arresting without warrant, when the offense is committed with- in his view, either at the time of its commission or immediately there- after, or in fresh pursuit of the offender.®" Eut where the officer neither sees nor hears, he should not arrest without warrant, and one who resists such capture will not be guilty of assault and battery.*^ The act complained of must amount to a breach of the peace.** If it does not, even though committed in the view of the officer, he cannot apprehend without warrant.** "The police force is main- tained for the preservation of order and the protection of citizens, and if an officer finds a man disturbing the public peace, he has the right to arrest him. If, however, an officer finds a citizen sober or partially intoxicated, but not disturbing the peace, he has no right to interfere with him."** Even liough the officer arrests by order of his superior, he will not be protected unless he acts within the rule stated.*® c. For violation of ordinances. — The officer of the peace is not jus- tified in arresting without warrant one violating a borough or a city ordinance, unless such violation in itself constituted a breach of the peace.** Provision is made for arrests in cities of the first class as follows : "Any police officer or constable, upon view of the breach of any ordinance of any city of the first class, is authorized to forth- with arrest the person or persons so offending, without any process, and to take said person or persons forthwith before any police magis- trate or alderman of said city, who shall thereupon require bail for the appearance of said person at a time to be fixed for the hearing of said charge, and in default of bail to commit for a hearing; and at " Com. V. Megary, 8 Phila. 616 ; Com. " Com. v. Collins, 15 Phila. 383, 38 V. Oreer, 20 Pa. Co. Ct. 535, 14 Montg. Phila. Leg. Int. 252; Com. v. Jayne, 11 Co. L. Rep. 38, 4 Lack. Legal News, 42. Pa. Super. Ct. 459. '° Com. V. Cosier, 5 Northampton Co. " Com. v. Ridgeway, 2 Pa. Dist. R. Rep. 74, 8 Kulp, 97; Crosland v. Shane, 59, 9 Lane. L. Rev. 347; Com. v. Kru- (Pa. 11 Cent. Rep. 665, 12 Atl. heck, 23 Pa. Co. Ct. 35, 8 Pa. Dist. R. 849; "Weiler v. Pennsylvania R. Co. 29 521, 5 Lack. L. News, 342. Pittsb. L. J. 347 (here the arrest was '*Com. v. Fisher, 1 Legal Opinion, made without warrant for assault and 56. battery, the officer having entered the " Flinn v. Graham, 3 Pittsb. 195. room after its termination, but while all " Philadelphia v. Campbell, 1 1 Phila. the evidence of the conflict remained). 163, 33 Phila. Leg. Int. 12; Pittston v. "^Com. V. Bryant, 9 Phila. 595, 29 Dimond, 7 Kulp, 431; Plymouth v, Phila. L^. Int. 125. Penkok, 7 Kulp, 101. 148 CRIMINAL AND PENAL PROCEDURE. [chap. iv. said hearing the case shall be proceeded with as if the parties were appearing before said magistrate or alderman upon a summons duly issued and returned served, or, if both parties desire it, the case may be entered and determined by the magistrate or alderman in like man- ner, without requiring bail or further continuance."*'^ Likewise, arrest may be made without wai-rant by police officers in cities of the second class f^ and persons arrested may be detained in lockups and watchhouses for a period not to exceed twenty-four hours, except upon the order of a magistrate legally authorized.*® Similar provision is made for cities of the third class by the act of May 16, 1901 :®** "Policemen shall be ex officio constables of the city, and shall and may, without warrant, and upon view, arrest and commit for hearing any and all persons guilty of breach of the peace, vagrancy, riotous or disorderly conduct, or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or vio- lating any of the ordinances of said city, for the violation of which a fine or penalty is imposed." By the act of June 4, 1897, provision is made for arrest without warrant for violation of ordinance in boroughs: "The policemen and constables of the several boroiighs of this commonwealth, in addition to the powers already conferred upon them, shall and may, without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace, vagrancy, riotous or disorder- ly conduct, or drunkenness, or who may be engaged in the commis- sion of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating any ordinances of said borough, for the violation of which a fine or penalty is imposed. Any person or persons arrested, with or without warrant, shall be en- titled to a trial, and to give bail for his or her or their appearance ac- cording to the practice in summary convictions in criminal cases."*^ "When any person is arrested on view, a complaint, on oath or affirma- tion, shall be immediately made, whereupon the like proceedings shall be had as upon a warrant issued. All fines or penalties for the violation of borough ordinances shall be paid over to the borough treasurer."*^ For townships of the first class see the act of June 10, 1901.** d. Under special statutes. — The right of the police officer or consta- "May 3, 1876, P. L. 99, § 1. "Section 5, page 239. "Act June 16, 1881, P. L. 303; Act "P. L. 121, § 1. March 7, 1901, P. L. 20. '"Act June 4, 1897, P. L. 121, § 2. "' Act March 7, 1901, P. L. 20, art. 19, •» P. L. 551. 8 17. § 79] AEEEST. 149 ble to arrest without warrant has been extended by acts of assembly to certain special cases. By act of March 31, I860,®* it is made law- ful for any sheriff, constable, or other officer of justice, with or with- out warrant, to seize, secure, and remove any gambling machines, and to arrest, with or without warrant, any person setting up the same. By the act of May 22, 1889,®' it is made lawful for any fish commission- er, fish warden, deputy fish warden, sheriff, deputy sheriff, constable, policeman, or special officer of the commonwealth to arrest immediate- ly and take before a justice of the peace any person guilty of violation of the offenses mentioned in said act. Similar provisions are found in the acts for protection of fishing, of March 22, 1899,®* of May 21, 1901,"' and of May 29, 1901.®'* Like power to arrest trespassers on trains without warrant by constables and authorized detectives, for the counties of Erie, Luzerne, Susquehanna, Pike, and Crawford, is given by the act of March 12, 1866,*® and, by section 3 of the same act, to conductors on the several railroads in the said coimties. By the act of May 24, 1878,^®® constables or police officers are given the power to arrest forthwith trespassers upon trains, intending to steal a ride, or to commit larceny, do violence, or destroy property upon a train, or to threaten, intimidate, or assault travelers or other persons. The act of April 29,1897,^®* authorizes constables and other peace officers, without first securing a warrant, to arrest persons reasonably sus- pected by them of offending against the laws protecting timber lands. The act of 1895 ^®^ gives like power to apprehend trespassers on en- closed lands of water companies. 79. Arrest without warrant by individual. — a. For felony. — "So, although not seen, yet if known to have committed a felony, and pur- sued with or without warrant, he may be arrested by any person. And even when there is only probable cause of suspicion, a private person may without warrant, at his peril, make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest."^®* The controlling principle is well stated by a JSTew York court in a case cited in Brooks v. Com,}"* with approval: "If a felony has in fact been committed by the person arrested, the arrest may be justified by any person without warrant, whether there is time to obtain one or " P. L. 382, § 60. '" June 24, P. L. 231. » P. L. 261, § 10. "» Wahely v. Hart, 6 Binn. 316. A "P. Ii. 17. detective appointed under the act of " P. L. 266. 1887 stands on the same footing as a " P. L. 302. private person when he arrests without "P. L. 182, § 2. a warrant. Com. use of Anthony v. ™P. L. 125. Bteigerwalt, 18 Lane. L. Eev. 301. '" P. L. 29. '" 61 Pa. 352, 100 Am. Dec. 645. 180 CRIMINAL AND PENAL PROCEDURE. [chap. iv. not. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact com- mitted, and there was reasonable ground to suspect the person ar- rested. But if no felony was committed by anyone, and a private in- dividual [did] arrest without warrant, such arrest is illegal, though an oflacer would be justified if he acted upon information from an- other which he had reason to rely upon." This distinction between the arrest on suspicion by an officer and an individual is also draAvn in Russell v. Shvster.^"^ To this it should be added that a private person in making an arrest must give notice of his purpose to arrest for the felony.^"® h. For misdemeanor. — The individual, as in the case of the peace officer, may arrest one committing a breach of the peace, but while he is bound to assist an officer who is acting upon legal authority, and may arrest an escaping felon, yet, "no matter what may be the case of misdemeanor, there is no power for a private person to apprehend after the offense has been committed."^"''' 80. Disposition of prisoner when arrested without warrant. — While an arrest on an exigency where reasonable grounds of suspi- cion exist may be made without a warrant, it is the duty of the per- son or officer making the arrest to take the accused before a magistrate for formal accusation and hearing before he shall have been locked up.*"* This case is distinguished from McCarthy v. De Armit,^°^ where the arrest was directed by the mayor, in time of riot, at mid- night of Saturday, and the defendant was brought before the judge on the first juridical day thereafter, Monday. "Although the authorities are not decisive on this subject, they go to a considerable length to establish tlie right of a constable to de- posit a prisoner arrested without warrant, in the common jail for safe keeping, till he can be carried before a magistrate. Even a pri- vate person who may have apprehended another for treason or fel- ony may convey him to the jail of the county, although it is said the safer course is to cause him, as soon as convenience will permit, to be brought before a justice of the peace, and I cannot see any reason why a private person should not have the same authority on an arrest during an affray which has taken place in his presenca"**'' '<» 8 Watts & S. 308. "» Burk v. Howley, 179 Pa. 539, 36 ^"Brooks V. Com. 61 Pa. 352, 100 Atl. 327. Am. Dec. 645. '"99 Pa. C3. ""Com. V. UcNall, 1 Woodw. Dec. ""Gibson, J., in Com. v. Deacon, 8 423. Serg. & R. 47, 49. § 81] ARKEST. 151 By the act of 1891,"' amending the act of March 29, 1869, "^ of- ficers are authorized to arrest on view those charged with cruelty to animals. By the act of 1897,'^^ it is made the duty of keepers, or persons in charge, of all jails, lockups, or station houses within this commonwealth, to receive all persons arrested for any violation of the provisions of that act 81. Exemption from arrest. — Certain limitations upon the ordinary right to arrest have been imposed by legislative enactment or judicial decision, a. Members of legislature. — The 15th section of article 2 of the Pennsylvania Constitution of 1874 provides: "The members of the general assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective houses and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place." The judicial interpretation of this constitutional pro- vision eliminates this exemption in holding that the words "breach or surety of the peace" are not confined to actual breaches of the pub- lic peace, but extend to all indictable offenses. The effect, therefore, is merely to prevent arrest on civil process.'^'* h. Electors. — By the 5th section of the 8th article, electors are privileged from arrest during their attendance on election and in go- ing to and returning therefrom in all cases, except treason, felony and breach or surety of the peace. Though no decision of the courts is to be found interpreting this section, yet the same argument would ap- ply as in the case of members of the legislature heretofore noticed. c. Election officers. — By the 14th section of the same article, it is provided that "election officers shall be privileged from arrest upon days of election and while engaged in making up or transmitting returns, except upon warrant of a court of record or judge thereof for an election fraud, felony, or for wanton breach of the peace." d. Sunday. — A limitation upon the right to arrest is also found in the act of 1705,' '^ which provides that "no person or persons, upon the first day of the week, shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment, or decree except in case of treason, felony, or breach of the peace, and the serv- '" June 20, P. L. 278, § 2. '" Smith's Laws, 25, § 4. Arrest on '" P. L. 22, § 5. Sunday for violation of game laws is "» June 22, P. L. 182. provided by act of May 29, 1901, P. L. ^'Oom. ew rel. BuUard v. Keeper of 302, § 33. Jail, 4 W. N. C. 540, 13 Phila. 573, 35 Phila. Leg. Int. 80. 152 CRIMINAL AND PENAL PROCEDURE. [chap. it. ing of any such writ, precept, warrant, order, judgment, or decree shall b© void to all intents and purposes whatsoever; and the person or persons so serving or executing the same shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same vnthout any writ, precept, warrant or order, judgment or decree at all." In case of an actual breach of the peace, this exemption would not apply, such as the crying of newspapers on the public streets on Sunday,^ ^® or the driving of a public convey- ance,^ ^^ but if the warrant be for a mere misdemeanor, not accom- panied by a breach of the peace,^^* a motion to quash an indictment, based on a return of a justice, which shows the arrest to have been made on Sunday, will be sustained, where there is no allegation in the warrant that a breach of the peace was committed, and the court will not hear evidence to show that such was involved.^ ^^ So, if there be a mere violation of some penal act, sudi as of the Sunday law, unaccompanied with any noise or disorder, thei^ can be no arrest Nor is a justice of the peace justified in entering upon the premises of another on that day, to secure evidence of a violation of this act.i='<' e. Pendency of civil proceedings. — See § 1, supra. 82. Waiver of irregularities. — Even though the warrant and arrest be irregular, the defendant by his acts may waive such objections as might have been made ; thus, by entering into a recognizance, irregu- larity would be waived. ^^^ So, it is too late to object to the insuf- ficiency of the cause of action set forth in a proceeding for arrest of a fraudulent debtor under the act of July 12, 1842, where a hearing has already been held under the 6th section of that act and the de- fendant committed.-'^* 83. Search warrants.— At common law, as well as by statute, a mag- istrate may issue a warrant directing a search for, and a seizure of, property which has been stolen. The 8th section of article 1 of the Constitution of 18Y4 provides : "The people shall be secure in their persons, houses, papers, and possessions from unreasonable searches "» Com. V. Teamann, 11 Phila. 460, 10 "° Com. v. Eyre, 1 Serg. & R. 347. Phlla. Leg. Int. 167. ^^ Com. ex rcl. Hartman v. Blair "' Com. V. Jeandelle, 3 Phila. 509, 16 County Jail Warden, 8 Pa. Dist. R. 159, Phila. Leg. Int. 364. 21 Pa. Co. Ct. 488, 29 Pittsb. L. J. N. S. '"Com. ex rel. Volpe v. County 258, 15 Montg. Co. L. Rep. 19, 7 Del. Prison Superintendent, 5 Pa. Dist. R. Co. Rep. 331. 635. «' Com. V. McCabe, 22 Pa. 450. "• Com. V. De Ruyter, 6 Del. Co. Rep. 232. § 84] ARREST. 153 and seizures, and no warrant to search any place or to seize any per- son or things shall issue without describing them as nearly as may be, or without probable cause, supported by oath or affirmation subscribed to by the affiant." The 5th section of the act of March 31, 1860,^24 directs in part "when any person shall be accused before a magis- trate upon oath or affirmation of the crime of burglary, robbery, or larceny, and the said magistrate shall have issued his warrant to ap- prehend such person or persons, or to search for such goods as have been described on oath or affirmation to have been stolen goods, if any shall be found in the custody or possession of such person or persons, . . . for his, her, or their use, and there is probable cause, sup- ported by oath or affirmation, to suspect that other goods which may be discovered on such search are stolen, it shall and may be lawful for the said magistrate to direct the said goods to be seized, and to secure the same in his own custody, unless the person in whose possession the same were found shall give sufficient surety to produce the same at the time of his or her trial." Following this is found the means to be employed for discovering the owner of such property and, in lieu thereof, the disposition which shall be made of it It will be noticed that the person in whose possession the property is found has the right to its custody until the trial, if security be given to produce it then.^^' By the 60th section of the same act, provision is made for the seiz- ure of gambling instruments; by the act of April 20, 1853,^^® for the search of premises of those suspected of having in their posses- sion stamped mineral water bottles; by the act of April 4, 1865,^^^ for the seizure of brewers' vessels; and by the act of May 4, 1889,^^* for the seizure of marked milk cans. In all these cases it is requisite that the property to be seized be described as nearly as may be. The words "jewelry and other person- al effects" have been held to be sufficient.^^® 84. Fosse comitatus.— The posse comitatus signifies the whole power of the county ; and all able-bodied male citizens over the age of fifteen years may be summoned to act as members of it. Its power is de- fined by act Hen. V. chap. 8, % 2, where it is said that the King's liege people, not being clergymen, women, persons decrepit, or infants un- der the age of fifteen, being sufficient to travel, shall be assistance to "*P. L. 427. "'P. L. 58, § 3. ^ Com. V. Thompson, 9 Pa. Dist. R. ^ P. L. 84, § 4. 559, 24 Pa. Co. Ct. 179. "» Moore v. Coxe, 10 W. N. C. 135. "" P. L. 643, § 3. 154 CRIMINAL AND PENAL PROCEDURE. [chap. nr. such justices, upon reasonable warning, to ride with them in aid to resist riots, routs, and assemblies on pain of imprisonment, and to make fine and ransom to the King. Under this statute the English courts held "that those who [thus] attend the justices in order to sup- press a riot may take with them such weapons as shall be necessary to enable them effectually to do it ; and that they may justify the beat- ing, wounding, and even the killing of such rioters as shall resist or refuse to surrender themselves."^^** "The sheriff is, both by the common law and special commission, the keei^er of the peace of the commonwealth within the county. . . . Of course, to execute such duties ... he must have the means of commanding adequate physical force. For this purpose every cit- izen capable of bearing arms, of every rank, description, and denom- ination, is bound to yield a prompt obedience to his command, and repair to meet him at any appointed place of rendezvous within the county. He has no discretion in the matter, and if he neglect or re- fuse obedience to the command of the sheriff requiring his aid in the suppression of a dangerous riot or other insurrectionary tumult, he may be fined and imprisoned for such contumacy, at the discretion of the court."^^^ It would seem that not only the sheriff, but a jus- tice of the peace or constable, may call out the power of the county to suppress disorder, or to aid in the discharge of his duty.^*^ In the execution of this power he may call on all able to assist, in- cluding militiamen as citizens.*^^ It is his exclusive duty to deter- mine the necessity for this call, and in this he exercises ju- dicial power,^** and no particular formality in the deputation of his posse is required.^^* Having not only the right, but the imper- ative duty, to keep the peace, he and his deputies may do what is nec- essary to accomplish this purpose, and may act in a summary manner where the peace is broken or threatened in their presence.^^* The sheriff having the power to summon a posse from the county, he has no right to hire militia for this purpose, and charge the county with the expense,^*^ or, if militia are sent by the governor, to contract "»1 Hawk. P. C. chap. 65, §§ 20, 21. '"Com. v. Martin, 7 Pa. Dist. R. 219, '"Be Mots of 18U, 2 Clark (Pa.) 9 Kulp, 69. 135, 283. '» Com. v. Martin, 7 Pa. Dist. R. 219, '*" Cttrtis V. Alleghany County, 1 9 Kulp, 69. Phila. 237, 8 Phila. Leg. Int. 142; Com- '"Jones's Case, 12 Pa. Co. Ct. 229, 2 fort V. Com. 5 Whart. 437. Pa. Dist. R. 538. "»iSeed V. Bias, 8 Watts & S. 189; Be '"Curtis v. Alleghany County, I Riots, of 18U, 2 Clark (Pa.) 135, 283. Phila. 237, 8 Phila. Leg. Int. 142. §§ 85, 86J AEEEST. 155 bills for their keep.^** Though he is bound to preserve the peace, and a contract to receive pay for so doing would be contrary to public pol- icy and unenforceable, yet an agreement to pay for special deputies appointed for a coal company at their request for their purposes will be binding.^** 85. Hue and cry.— The hutesiwrrk, or hue and cry, is the old com- mon-law process of pursuing, from town to town, and arresting all felons, and such as had dangerously wounded another. The act of 3 Edw. I., in force in Pennsylvania, provided for the joining in such by citizens on request of the sheriff.^*" It is practically obsolete in England, and has never been used in Pennsylvania. 86. Bewards for arrests. — Where a reward has been offered for the apprehension of a criminal, the right to receive it accrues to the per- son who causes the arrest of the prisoners, discovers and arranges the evidence, or conducts the prosecution which leads to conviction. It is not enough that the plaintiff aided in the pursuit and seizure, and himself gave important testimony upon the trial of the case.-'*^ As the court has said : "The city was not offering a bonus for witnesses, but neither did it intend to reward those who might be called upon to assist in the apprehension of incendiaries." An officer cannot recover a reward offered him for the arrest of a specified person on a warrant issued, which he was legally bound to execute.^*^ But even though the arrest be by virtue of a warrant, and the subpoenas served were wdthin the scope of his official duties, yet he may recover if he was instrumental in bringing about the ar- rest and conviction by working up the case, discovering and arrang- ing the eiddence.*** So, if the arrest be made without warrant, by an officer who returns the prisoner to jail, he is entitled to the reward.^** The right to recovery may depend upon the peculiar wording of the offer made. Thus, when the commissioners agree to pay for the "cap- ture and delivery" of an escaped prisoner, it is not sufficient for the plaintiff to show that he furnished the information as to the location of the fugitive, and was one of the sheriff's assistants in making the arrest. This does not constitute a capture and delivery by him.^*^ It is to be noticed in this connection that when a definite offer has "'Raush V. Ward, 44 Pa. 389. ^'^ Smith v. Whildin, 10 Pa. 39, 49 ^"Cl-ark V. Cook, 14 Pa. Super. Ct. Am. Rep. 572. 309, Affirmed in 197 Pa. 643, 27 Atl. ^'^ Pyle v. Stoeigart, 18 Lane. L. Rev. 851. 81. "° Roberts' Digest of British Stat- '" Creamer v. Hall. 2 Del. Co. Rep. utes, 326. 378. '" Rinehart v. Lancaster, 18 W. N. C. '" Juniata County v. McDonald, 122 364. Pa. 115. 15 Atl. 696. 156 CRIMINAL AND PENAL PROUEDUKE. [CHAP. IV. been made, as a reward for the apprehension of stolen property, the one entitled thereto may not only sue to recover the same, but may hold the article taken until the sum is paid, he having a bailee's lien.i*« 87. Rewards for apprehending horse thieves. — By the act of March 15, 1821,^*'^ it is provided: "Whosoever after the passing of this act shall pursue and apprehend any person who shall have stolen any mare, horse, or gelding within any county of this commonwealth, on the conviction of the person so apprehended, shall be entitled to the reward of $20 for apprehending the person who shall have been con- victed of stealing any mare, horse, or gelding as aforesaid, and 6 cents for every mile necessarily traveled in pursuit of the offender; provided, that the reward offered by this act shall in no wise exclude the person or persons entitled to such reward for being competent wit- nesses." The 2d section of the same act furnishes means by which the person entitled to the compensation may be determined. By the act of April 4, 1889,^** this further provision was made: "The county commissioners of the various counties of this common- wealth may, when they deem the same expedient, offer such reward in addition to that now authorized by law, as in their judgment the nature of the case requires, for the detection or apprehension of any person charged with, or engaged in, horse stealing, or aiding or abet- ting the same; and, upon the conviction of such person, the county commissioners may pay such reward or other compensation out of the county treasury ; but in no case shall the owner of the stolen horse or horses be entitled to any of said reward." Both of these acts apply to the stealing of a mare, horse, or gelding. In this portion the act is explicit, and the reward caamot be collected for the pursuance and apprehension of a thief of mules.-'** Any person pursuing and capturing the thief is entitled to the re- ward mentioned in the act of 1821, even though he be the owner of the horse himself. So, the bailor who pursues and captures the bailee who has stolen the bailed property can recover.^^" This would not be true where an additional reward is claimed under the act of 1889, supra, as it is expressly provided therein that such shall not be al- lowed. The person entitled to receive the compensation is the in- dividual who pursues and captures the criminal. It is not payable "' Cummings v. Gawn, 52 Pa. 488. Phila. Leg. Int. 358; Com. v. Davidson, '" Smith's Laws, 388, § 1. 8 York Legal Record, 133. "'P. L. 23. "'Butler County v. Leihold, 107 Pa. •" Com. V. Edwards, 10 Phila. 215. 31 407. § 88] ARREST. 157 to the party wlio merely furnishes information. ^^^ Ordinarily, the officer who merely serves a warrant placed in his hand is not entitled to the benefit of the act,^^^ but under certain circumstances he could receive. This is true where he acts voluntarily as a private detective, discovers and brings to justice the horse thief. •'^^ 88. Proceedings to recover. — The 2d section of the act referred to makes requisite a petition to the court for the determination of the party to whom the money shall be paid ; this application is to be made at the time the conviction takes place, and it must not be delayed be- yond the current term of the court. -^^^ The petition should show that the party claiming is entitled to the reward asked for. Thus, where an officer applied and failed to set forth that the services were beyond the line of his ordinary duties, the court dismissed the petition.^ ^^ "^Com. V. Anderson, 5 Kulp, 302; Walker's Case, 23 Pa. Co. Ct. 305; Com. Babeock's Case, 7 Montg. Co. L. Rep. v. Fisher, 5 York Legal Record, 103; 171. Com. V. Anderson, 5 Kulp, 302. ^^Balcock's Case, 7 Montg. Co. L. ^^*Appel's Petition, 18 Phila. 476, 43 Rep. 171; Com. v. Holbs, 3 Del. Co. Phila. Leg. Int. 108; Com. v. Chester, Rep. 97; Com. v. Miller, 25 Pa.. Co. Ct. 18 Phila. 454, 42 Phila. Leg. Int. 276. 491. "^Appel's Petition, 18 Phila. 476, 43 '» McCain's Petition, 4 Pa. Co. Ct. 9} Phila. L^. Int. 108. CHAPTEE V. FUGITIVES FROM JUSTICE. 89. Fugitives from justice in another county of the ataie. 90. Outlawry. 91. International extradition. 92. Interstate extradition. 93. Application for requisition. 94. Requisites of governor's warrant. 95. Proceedings on warrant and hearing. 96. Offenses for which granted. 97. Who are fugitives. 98. Arrest pending papers. 99. Disposition of prisoner where trial shows oSense committed in another state. 100. Effect of enticing prisoner within the state. 101. Effect on prisoner of extradition. 102. Costs in extradition proceedings. 89. Fugitives from justice in another county of the state. — Eeference has already been made to the power of the judges of various courts to issue warrants for the arrest of those found within their county who have committed felonies in some other county of the com- monwealth, as well as to the power given by the act of 1899 to consta- bles to serve warrants directed to them by justices of the peace in any county of the commonwealth. These acts cover cases of fugitives de- sired for trial in some other county. ■* Where the prisoner has already been convicted in one county, but while serving his sentence escapes to another coimty in which he is again arrested and tried, the proper procedure is to arrest the judg- ment in the second county, return the prisoner to the first to serve the balance of his sentence, and to lodge a detainer wi1ii the keeper of the jail, so that at the expiration of the sentence he can be again brought to the second county for punishment.^ 90. Outlawry. — A system of outlawry is also provided by the Y3d section of the Penal Code of I860,' which is nearly a transcript of the 1st, 2d, and 3d sections of the act of September 23, 1791.* Pro- ' See Arrest, chapter iv. §§ 69, 70, 513, 2 Chester Co. Rep. 85. ow/e. 'Act March 31, 1860, P. L. 427, § 73. ' Com. V. Franlford, 1 Del. Co. Rep. « 3 Smith's Laws, 37. 158 §§ 91, 92] FUGITIVES FROM JUSTICE. 159 ceeding8 for outlawry have been so rarely resorted to that a more extended reference is deemed unnecessary.^ 91. International extradition. — As a discussion of this subject is beyond the scope of this work, it is sufficient to note that it is by trea- ties between the United States and most foreign countries, and by acts of Congress in pursuance thereof, that provision is made for the extradition of fugitives from justice in certain specified cases. This is a matter in which the Federal government alone can act in the ways provided by legislation. A prosecution cannot be commenced by complaint of a private person before a magistrate against one com- mitting an offense in a foreign country, and if a warrant does so issue, the prisoner will be discharged on habeas corpus.® 92. Interstate extradition. — Section 2'' of article 4 of the Constitu- tion of the United States provides that "a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive author- ity of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." An act of Congress® makes it the duty of the executive of the state into which the fugitive has fled, on request of the executive of the state from which he has fled, together with a duly authenticated copy of the indictment or in- formation charging a commission of the crime by such fugitive, to cause such fugitive to be apprehended, and thereupon immediately to notify the executive of the state requiring the surrender, or the duly authorized agent of such executive, of such arrest, and to deliver up the fugitive to such agent appointed to receive him, who is author- ized to transport him to the state whence he fled. Thus, it is seen that the surrender of a fugitive from justice by one state to another does not depend on state comity, but the obligation to make such sur- render rests upon the Federal Constitution and acts of Congress.® The act of May 24, 1878,^" provides that it shall "be the duty of the governor of this commonAvealth, in all cases where, by virtue of a requisition made upon him by the governor of another state or terri- tory, any citizen, inhabitant, or temporary resident of this common- wealth is to be aiTCsted as a fugitive from justice (provided that the said requisition be accompanied with a certified copy of the indict- ' The only decisions in Pennsylvania ' Subd. 2. are Bespuhlica v. Doan, 1 Dall. (Pa.) "Rev. Stat. p. 1027, § 5278; U. S. 86; RespubKea v. Buffington, 1 Dall. Comp. Stat. 1901, p. 3597. (Pa.) 60; Respublica v. Steele, 2 Dall. 'Com. v. Johnston, 12 Pa. Co. Ct. (Pa.) 92. 263, 2 Pa. Dist. R. 673. • Com. v. Deacon, 10 Serg. & R. 125. •" P. L. 137, § 1. 160 CRIMINAL AND PENAL PROCEDURE. [chap. v. ment or information, from the authorities of such other state or terri- tory, charging such person with any crime in such state or territory), to issue and transmit a warrant for such purpose to the sherifE of the proper county, or other ofEcer authorized by law to execute warrants, in which the requisition describes the party or parties to be residing or domiciled ; and the sheriff, or the deputy sheriff, or other officer, as aforesaid, of the county, shall alone be competent to make service of tlie same." 93. Application for requisition. — As a result of a conference by representatives of a number of the leading states of the Union, held in 1887, certain rules were formulated to be complied with when ap- plication is made for the extradition of a fugitiva These rules were approved by the Executive Department of Pennsylvania in 1892, and are as follows : The application for the requisition must be made by the district or prosecuting attorney for the county or district in which the of- fense was committed, and must be in duplicate original papers or certified copies thereof. The following must appear by the certificate of the district or pros- ecuting attorney: (a) The full name of the person for whom extradition is asked, together with the name of the agent proposed, to be properly spelled, in Roman capital letters, for example : JOHN DOE. (&) That in his opinion the ends of public justice require that the alleged criminal be brought to this state for trial at the public ex- pense. (c) That he believes he has sufficient evidence to secure the con- viction of the fugitive. (d) That the person named as agent is a proper person, and that he has no private interest in the arrest of the fugitive. (e) If there has been any former application for a requisition for the same person, growing out of the same transaction, it must be so stated, with an explanation of the reasons for a second request, to- gether with the date of such application, as near as may be. (/) If the fugitive is known to be under either civil or criminal arrest in the state or territory to which he is alleged to have fled, the fact of such arrest and the nature of the proceedings on which it is based must be stated. (g) That the application is not made for the purpose of enforcing the collection of a debt, or for any private purpose whatever, and § 98] FUGITIVES FROM JUSTICE. ICl that if the requisition applied for be granted, the criminal proceed- ings shall not be used for any of said objects. {h) The nature of the crime charged, with a reference, when prac- ticable, to the particular statute defining and punishing the same. (i) If the offense charged is not of recent occurrence, a satisfac- tory reason must be given for the delay in making the application. 1. In all cases of fraud, false pretenses, embezzlement, or forgery, when made a crime by the common law, or any penal code or stat- ute, the affidavit of the principal complaining witness or informant that the application is made in good faith, for the sole purpose of pun- ishing the accused, and that he does not desire or expect to use the prosecution for the purpose of collecting a debt, or for any private purpose, and will not directly or indirectly use the same for any of said purposes, shall be required, or a sufficient reason be given for the absence of such affidavit. 2. Proof by affidavit of facts and circumstances satisfying the Ex- ecutive that the alleged criminal has fled from the justice of the state, and is in the state on whose Executive the demand is requested to be made, must be given. The fact that the alleged criminal was in the state where the alleged crime was committed at the time of the commission thereof, and is found in the state upon which the requisi- tion was made, shall be sufficient evidence, in the absence of other proof, that he is a fugitive from justice. 3. If an indictment has been found, certified copies, in duplicate, must accompany the application, 4. If an indictment has not been found by a grand jury, the facts and circumstances showing the commission of the crime charged, and that the accused perpetrated the same, must be shown by affidavits taken before a magistrate (a notary public is not a magistrate vdthin the meaning of the statutes), and that a warrant has been issued, and duplicate certified copies of the same, together with the returns there- to, if any, must be furnished with the application. 5. The official character of the officer taking the affidavits or depo- sitions and of the officear who issued the warrant must be duly cer- tified. 6. Upon the renewal of an application, for example: On the ground that the fugitive has fled to another state, not having been found in the state in which the first was granted, — ^new or certified copies of papers in conformity with the above rules must be fur- nished. 7. In the case of any person who has been convicted of any crime, Pa. Crim. Proc. — 11. 162 CRIMINAL AND PENAL PROCEDUKE. [chap. t. and escapes after conviction, or while serving his sentence, the appli- cation may be made by the jailer, sheriff, or other officer having him in custody, and shall be accompanied by certified copies of the in- dictment or information, record of conviction, and sentence, upon ■which the person is held, with the affidavit of such person having him in custody, showing such escape with the circumstances attending the same. 8. No requisition will be made for the extradition of any fugitive except in compliance with these rules. The following additional suggestions are made by the Department : 1. At the Interstate Extradition Conference, held in New York, in August, 1887, it wa^ resolved by the representatives of the several states : "That it is the sense of this Conference that the governors of the demanding states discourage proceedings for the extradition of persons charged with petty offenses, and that, except in special cases, under aggravating circumstances, no demand should be made in such cases." 2. Eequisitions will not issue in cases of fornication and bastardy, desertion (except under special and aggravated circumstances), nor in an,y case to aid in collecting a debt or enforcing a civil remedy, nor in cases in which the offense is of such a trivial character as to leave a doubt as to the issuing of a mandate thereon, by the Executive of another state or territory ; nor in a case of seduction, until an indict ment is found and the relations of the parties clearly established, so as to leave no doubt that the case is one of seduction, and not of for- nication and bastardy. 3. Eequisitions will not be issued on petition alone, but the copies of record and affidavits required by the preceding rules must in every case be furnished; and this regulation will be applied with special strictness in all cases where the charge is cheating, obtaining money by false pretenses, embezzlement and the like. False and deceitful representations must be particularly set forth. 4. All papers presented in connection with an application for a re- quisition must be in duplicate. 5. The agent should, when possible, be the sheriff of the county or his deputy. 6. Each application must be accompanied with the legal fee of one dollar. It must appear in all cases that the offense was committed in Penn- sylvania, and that the prisoners demanded are fugitives therefrom- §§ 94, 95J FUGITIVES FROM JUSTICE. 163 Thus, where the application showed tbe libel to have been committed in JSTew York by citizens of that state, the requisition was refused.^ ^ 94. Requisites of governor's warrant. — If the warrant for the arrest of a person to be taken to another state as a fugitive from justice purports to be upon a requisition by the governor of that state, ac- companied by a certified copy of the indictment, although the war- rant does not specify either when or upon whom the alleged crime was committed, it is sufficient under the act of May 24, 1878.^* Nor does it seem necessary that the warrant set forth that the of- fense charged is a crime against the laws of the demanding state. In Ex parte Butler}^ the contrary was held, where the warrant stated that the prisoner "stood charged" of the crime of false pretenses in the state of New York, but did not show upon its face that such was an offense in the demanding state. This decision was severely crit- icised.** In the following year the rule stated was laid down in Ex parte Acherman^^ which is in line with the authorities of other states. 95. Proceedings on warrant and hearing. — The act of June 4, 1879,*® amending section 2 of the act of May 24, 1878, regulates the proceeding in such cases. "Before the sheriff or his deputy or other officer, as aforesaid, shall deliver the person arrested into the custody of the officer or officers named in the requisition, it ^all be the duty of the sheriff or other officer, as aforesaid, to take the prisoner or prisoners before a judge of a court of record, who shall in open court, if in session, otherwise at chambers, inform the prisoner or prisoners of the cause of his or their arrest, the nature of the process, and instruct him or them that if he or they claim not to be the particular person or persons mentioned in said requisition, indictment, or affida- vit before a magistrate of said other state or territory, charging said person vidth some crime and warrant of arrest, he or they may have a writ of habeas corpus upon filing an affidavit to that effect, except the said person or persons so arrested or taken shall have previously con- sented to and waived in writing the right to go before said judge for the purpose of availing himself of the vmt of habeas corpus : Pro- vided, however, the investigation and hearing under said writ shall be limited to the question of identification, and shall not enter into the merits of facts of the charge, indictment, or information accom- panying or referred to in the requisition ; and if, after due hearing, the prisoner or prisoners shall be found to be the parties indicted or fc's Case, 13 Pa. Co. Ct. 148, » 18 Alb. L. J. 466. 2 Pa.'Dist. R. 520. "3 Del. Co. Rep. 406, 1 Wilcox " Com. V. McCcmdlass, 7 Pa. Co. Ct. 51. Rep. 54. » 7 Luzerne Leg. Reg. 209. " P. L. 95, § 2. 164 CRIMINAL AND PENAL PROCEDURE. [chap. V. informed against and mentioned in the requisition or warrant, then the court shall order and direct the sheriff or other officer, as afore- said, to deliver the prisoner or prisoners into the custody of the officer designated in the requisition as the agent upon the part of such state to receive him or them ; otherwise to be discharged from custody by the court." It will be noticed that it is made the duty of the court to deter- mine the question of identification of the prisoner arrested with the one mentioned in the warrant In the first instance, identity of name would be sufficient evidence, until rebutted by proof to the contrary.*'^ The wording of the section is peculiar in that it seems to limit the power of the court to the mere question of identification. If that is the meaning to be taken therefrom, — and possibly it is, — such a provision is unconstitutional, for the right of habeas corpus is not to be taken away, being given by the Constitution, independent of any act of assembly. So the courts have held that the warrant by the gov- ernor is not conclusive evidence that the prisoner is a fugitive from justice, but that the legality of the arrest and holding may be inquired into to the same extent and in the same manner as though the act of 1879 had no existence.^* It would seem that an appeal would lie from the order of extradi- tion, but in such case jurisdiction of the appellate court is confined to an examination of the regularity and legality of the proceedings brought up by the certiorari, and cannot be extended to an examina- tion of the evidence adduced at the hearing or to the rulings of the judge upon questions of evidence.^' 96. Offenses for which granted. — The word "crime" as used in the Constitution of the United States,*" means any offense indictable by the laws of the state, demanding the surrender, and is not confined to common-law crimes.*^ And the use of the words "treason, felony or otiier crime" in the act of Congress^* embraces every offense known to the law of the demanding state, including misdemeanors.** It was resolved at the Extradition Conference before referred to, that extradition for minor offenses should be discouraged, and that in " Eo! parte Ackerman, 3 Del. Co. Rep. " Kentucky v. Dennison, 24 How. 66, 406. 1 Wilcox Rep. 54. 16 L. ed. 717. " Ew parte Butler, 7 Luzerne Leg. "= Rev. Stat. § 5278, U. S. Comp. Stat. Reg. 209, 1 Lack. Legal Record, 92; 1901, p. 3597. Com. V. Traeh, 3 Pa. Co. Ct. 65; Com. "Ex parte Reggel, 114 U. S. 642, 29 V. McGandlass, 7 Pa. Co. Ct. 51. L. ed. 250, 5 Sup. Ct. Rep. 1148; Com. " Thatcher Requisition, 18 Pa. Super, v. Johnston, 12 Pa. Co. Ct. 263, 2 Pa. Ct. 533. Dist. R. 673; Com. v. Kuchel, Vaux, »Ait. 4, i 2, subd. 2. 174. §§ 97-99] FUGITIVES FROM JUSTICE. 165 no case should it be granted in case of desertion. Even in the ab- sence of such a rule, the requisition would not be ordered in Pennsyl- vania for that offensei, since it is not indictable, and, properly speak- ing, not punishable, the act of 1867 being remedial in its nature,^* 97. Who are fugitives. — It must appear that the prisoner sought to be arrested committed the crime charged in the demanding state, and subsequently removed therefrom.^^ It does not include a person who, while in one state and remaining there, commits acts which result in a crime by the laws of the demanding state. ^® 98. Arrest pending papers. — "Where a fugitive is charged with com- mission of a crime in another state, the commonwealth into which he has fled, as a police regulation for the protection of its own citizens, will allow the pursuers to make an information within its jurisdic- tion, have a warrant issued, and the party arrested and committed to await the requisition from the governor of the state from which he has fled.^^ It is the duty of magistrates, upon proper evidence, to cause fugitives from justice from either of the United States to be arrested and detained in order that they may be suiTendered, before a requisition is actually made for their surrender by the executive of the state from which they fled. But before the warrant is issued, it must be made to appear: (1) A defendant has committed a crime in the said state; (2) that he has been duly charged with its coromission ; (3) that he has fled from justice in the said state and is found within this state.^* The act of June 4, 1879,^® amending § 5 of the act of May 24, 1878, gives statutory authority to the sheriff of any county, or to the chief of police of any city, or other person, "to cause the arrest of any person or persons upon information of the offense or crime committed in another state and that a warrant has there been issued for the arrest of the said party or parties or has there been indicted ;" pro- vided application shall be made to the governor of this state with- in ninety days thereafter for the extradition of such person, and in case this is not done the person arrested is to be discharged from cus- tody. 99. Dispositioli of prisoner where trial shows offense committed in an- other state. — When it appears upon the trial of an indictment that the offense charged has been committed within another state, the "Ewtradition Case, 9 Pa. Co. Ct. 27. "Com. v. Tracli, 3 Pa. Co. Ct. 65. "Spevak Case, 13 Pa. Co. Ct. 148, 2 "Com. v. Wilson, 1 Phila. 80; Com. Pa. Dist. E. 520; Simmons v. Com. 5 v. Fassitt, Vaux, 30. Binn. 617; Com. v. Miilholland, 6 Phila. " Eo! parte Donaghey, 2 Pittsb. 166. 280, 24 Phila. Leg. Int. 69. "P. L. 95, § 2. 166 CRIMINAL AND PENAL PKOCEDUKE, [chat. v. court should not discharge the prisoner, but remand him until the authority of said state can be notified and ask for his extradition.*" This is the same principle which leads the court of one county to de- tain a prisoner entitled to acquittal on the ground of lack of jurisdic- tion, for removal and trial in the proper county.*^ 100. Effect of enticing prisoner within the state. — The Federal Con- stitution, the act of Congress, and the acts of the state legislature, make it the duty of the executive, upon proper demand, to grant a warrant for the extradition of the fugitive; but these provisions were not devised for his benefit, and when he is enticed within the limits of the state, or forcibly brought therein, and is there arrested, he can- not object to the irregularity of the proceeding.*^ However, should this be done and the governor of the state from which he was im- properly taken object, and demand his discharge, as a matter of com- ity his discharge will be ordered.'* Such conduct is to be condemned, and by the 3d section of the act of May 24, 1878,'''* it is made a misdemeanor so to do, and by the 4th section a misdemeanor in oflfice, where the person so offending is a sheriff, his deputy, or other officer. 101. Effect on prisoner of extradition.— When a prisoner has been surrendered by the governor of the asylum state, he may be convicted, not alone of the exact crime charged, but also of any grade of crime embraced therein ; and it is immaterial that the court of the asylum state directed, upon surrender, that the trial be had upon the offense charged only.*° Having been brought within the confines of the state, he would be subject to other criminal proceedings, but whether there would be immunity from civil process is not clear, though this would be true in case he were in attendance as a party or a witness in a civil suit.** In two cases the courts have discussed the question of inununity when the presence of the prisoner was secured by requisition. In Cotti. v. Daniel,^'' under such circumstances a warrant was issued for the ar- rest of the defendant under the act of July 12, 1842, which, though a warrant, is, as is said by the court, of purely civil nature. Upon ap- °° Simmons v. Com. 5 Binn. 617 ; Com,. "Com. v. Johnston, 12 Pa. Co. Ct. V. Mulholland, 6 Phila. 280, 24 Phila. 263, 2 Pa. Dist. R. 673. Here prisoner Leg. Int. 69. was extradited for rape and convicted '^Com. V. O'T^feill, 10 Pa. Dist. R. of fornication and bastardy. 227, 18 Lane. L. Rev. 85, 7 Lack. Legal " United States v. Edme, 9 Serg. & News, 149. R. 147; Smythe v. Bwnhs, 4 Call. (Pa.) '^Dow's Case, 18 Pa. 37. 329. In Com. v. Brown, 1 Browne (Pa.) "Norton's Case, 15 W. N. C. 395; 72, it was said that civil process should Vow's Case, IS Pa. 37. not be served unless by leave of court. "P. L. 137. "4 Clark (Pa.) 49. § 102] rUGITIVES FROM JOSTICE. 167 plication for discharge from arrest, it was denied on the ground "that the privilege is confined to parties in civil proceedings, unless it appear that his apprehension on the criminal charge was a con- trivance by the plaintiff to get him into custody on the civil suit." In a later case, Pavona v. Di Jorio,'^ where the defendant had been extradited, served a sentence, and upon its expiration had been ar- rested on a capias based on an. action in tort, the prisoner was ordered discharged on common baiL 102. Costs in extradition proceedings. — The 1st section of the Penal Code^* provides, in part, "that the reasonable expenses of exe- cuting such process when issued on behalf of the commonwealth shall be paid out of the funds of the county where issued, and the expenses of removing any person charged with having committed an offense in one county into another county, or of transporting any person charged with having committed any offense in this state from another state into this state for trial, or for conveying any person, after convic- tion, to the penitentiary, shall be paid out of the treasury of the coun- ty where the offense is charged to have been committed." Under the wording of this statute, no compensation for expense could be recovered where the attempt to secure the prisoner was un- successful,*" even though the fugitive was actually arrested, but was discharged by a court of the asylum state on habeas corpus, since it is necessary that the prisoner be "transported into the state for trial."" The person who does bring back the fugitive is entitled to compen- sation for expense incurred, no matter whether he be an officer or pri- vate individual, for "a sheriff' or constable in charge of a requisition for a fugitive from justice in another state acts simply as the agent of the executive authority of this state, and not in his official capacity as sheriff or constable, although armed with the process of a court of quarter sessions of this state. "^^ The compensation recoverable in- cludes the expenses of transportation, board, and the actual costs of securing the requisition.*^ It would seem that, in addition, fair compensation for the service rendered should be allowed.** Four dollars per day for five days' service,*'' and five dollars per day for " 23 Pa. Co. Ct. 382, 10 Pa. Dist. R. " Ginter v. York County, 3 Pa. Co. 83, 30 Pittsb. L. J. N. S. 347. Ct. 111. ™Act March 31, 1860, P. L. 427. '^ Douthett v. Laierence County, 16 "Andrus v. Warren County, 32 Pa. Pa. Co. Ct. 406, 4 Pa. Dist. R. 608. 540; Steckman v. Bedford County, 84 *'' Bose v. York Cotmty, 11 York Le- Pa. 317. gal Record, 77, 7 Del. Co. Rep. 79. "Charters v. Dauphin County, 17 Pa. " Bose v. York County, 11 York Le- Co. Ct. 300, 5 Pa. Dist. R. 145. gal Record, 77, 7 Del. Co. Rep. 79. 168 CRIMINAL AND PENAL PE-OCEDUEE. [ohap. v. nine days, have been allowed.*® In Ginter v. York County*'' com- pensation for such service was refused on the ground that the act of assembly did not provide for fees in such case.** The agent's duty is merely to receive the body of the prisoner and transport him safely to the demanding state. The officers of the asylum state are by law required to deliver up the fugitive to him. It is therefore improper for the agent to employ counsel to aid in securing possession of the prisoner, and if he does so do, such a charge will not be allowed.*® No statutory provision is made for reimbursement for expenses in- curred in bringing a prisoner from a foreign country to this state, and such cannot, therefore, be collected.^" " Fraser v. Allegheny County, 19 Pa. &oldfon v. Allegheny County, 8 Pa. Co. Ct. 458, 27 Pittsb. L. J. N. S. 412, Dist. E. 387, 30 Pittsb. L. J. N. S. 16, 6 Pa. Dist. R. 380. 13 York Legal Record, 65, Affirmed in "3 Pa. Co. a. 111. 14 Pa. Super. Ct. 75. " See the later decision from the same " Ooldfon v. Allegheny County, 8 Pa. county. Bose v. York County, 11 York Dist. R. 387, 30 Pittsb. L. J. N. S. 16, Legal Record, 77, 7 Del. Co. Rep. 79. 13 York Legal Record, 65, AfiBrmed in "Douthett V. Lawrence Cownty, 16 14 Pa. Super. Ct. 75. Pa. Co. Ct. 406, 4 Pa. Dist R. 608 j CHAPTEK VI. HEARINGS BEFORE JUSTICES. 103. The preliminary hearing. 104. Time of examination. 105. Conduct of hearing. 106. Decision of magistrate. 107. Waiver of hearing. 108. Property found on prisoner. 109. Imprisonment of witnesses. 110. The return. 111. Contents of return. 112. Trial of crimes by jury before justices. 113. Tor what crimes. 114. The information. 115. Pleas. 116. The jury. 117. Manner of procedure. 118. Verdict. 119. Sentence. 120. Review of proceedings. a. Certiorari. 6. Appeal. 121. Effect of reversal. 122. Effect of acquittal. 123. Costs. 103. The preliminary hearing. — The usual mode of instituting criminal proceedings, as has been seen, is by warrant of arrest, fol- lowing which a hearing is had before a magistrate. This becomes unnecessary, however, where the prisoner waives his right, where he is a fugitive from justice, where he is held by virtue of the finding of a coroner's inquest, or an indictment is already found in the un- usual cases to be hereafter noticed. "By the opportunity given to the accused of hearing and examining the prosecutor and his wit- nesses, he ascertains the time, place, and circumstances of the crime charged against him, and thus is enabled, if he is an innocent man, to prepare a defense, a thing of the hardest practicability if a pre- liminary hearing is not afforded him."^ ^ Opinion by King, J., cited in Whar- S. C. 1 C. P. Rep. 133 ; Be Memorial, 8 ton, Grim. Pl.&Pr. 8th ed. § 338, note; Phila. 478. Com. V. J ad/win, 2 Law Times, N. S. 13, 169 170 CRIMINAL AND PENAL PROCEDURE. [chap. vi. 104. Time of examination. — It is the duty of the magistrate to hear the case as soon as possible after the arrest of the accused, and to dis- charge or commit him. No precise limit of time is fixed, but it seems formerly to have been supposed that it should occur within three days.^ This must depend on the circumstances of each case, and the magistrate has the power to adjourn, and demand security for a further hearing.* If a n&w recognizance be not taken for the adjourned meeting, a new warrant will have to be issued.* 105. Conduct of hearing. — It is an incident of the authority of the magistrate having jurisdiction in these preliminary proceedings, that he has the power to have brought before him all persons who may be material witnesses, by the issuance of his subpoena, in order that they may give their testimony. The district attorney may represent the commonwealth, while the accused has the right to the assistance of his own professional counsel in examining or cross-examining wit- nesses, in making his defense or explaining points of law.* Before taking the testimony of those summoned, they must be duly qualified, either by oath or affirmation.® This legislation was amend- ed as to the common form of oath in 1772,'^ which in turn is amended by the act of 1895, which provides that "all manner of crimes, of- fenses, matters, causes, and things whatsoever to be inquired of, heard, tried, and determined or done or performed by virtue of any law of this commonwealth, or otherwise, shall and may be inquired of, heard, tried, and determined by judges, aldermen, magistrates, justices of the peace, and such persons as may by law be appointed by the proper legal authorities, witnesses, and inquest, and all other persons qualifying themselves according to their conscientious per- suasions, respectively, either by taking the solemn affirmation or any oath in the usual or common form, by laying the hand upon an open copy of the Holy Bible, or by lifting up the right hand and pronounc- ing or assenting to the following words : I, A. B., do swear by Al- mighty God, the seardier of all hearts, that I will , and that as I shall answer to God at the last great day. Which oath, so taken by persons who conscientiously refuse to take an oath in the common form, shall be deemed and taken in law to have the same effect with an oath taken in common form."* "MeKinney's Justice, vol. 1, p. 232. "U. S. Const. Amend, art. 6; Pa. " Com. V. Boss, 6 Serg. & R. 427 ; and Const, art. 1, § 9. the condition of the recognizance will "Act May 31, 1718; 1 Smith's Laws, not be fulfilled if he appears at the ad- 105, § 3. journed hearing, but escapes while the 'Act March 21, 1772, § 1. commitment is being prepared. "Act April 3, 1895, P. L. 33. * Com. V. Kinter, 1 Wilcox Rep. 3. § 105] HEARINGS BEFORE JUSTICES. 171 The credibility of the witnesses offered for the commonwealth can- not be attacked in the preliminary proceeding. That is a question for a jury trying the case.* It is not clear whether the defendant has the right to produce evi- dence in his own behalf at the preliminary hearing. Prior to the act of 1887, the right to make a statement existed, and certainly con- tinues.'" By the legislation mentioned it was provided that, "except upon a preliminary hearing before a magistrate for the purpose of determining whether a person charged with a criminal offense triable in the oyer and terminer ought to be committed for trial, . . . and except also as provided in section 2 of this act, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal"'' Under this legislation it has been held that the right to be heard by witnesses exists except in the case of offenses exclu- sively triable in the oyer and terminer, and, if refused by the justice, the indictment based on the return will be quashed.'* But the con- trary has been held by another court on the ground that all offenses are triable in the oyer and terminer, and that there is no authority for reading "exclusively" into the section quoted, before the word "triable."'* By the act of 1867, relating to Erie county, provision is made for the hearing of such evidence in all quarter sessions of- fenses.'* Since the act of 1887 the defendant may offer himself as a witness, where evidence can be given, and submit himself to examination and cross-examination,' ° though he cannot be compelled to testify against himself,'® and if compelled to make an incriminating statement by reason of the threat of the magistrate to commit, such cannot be re- ceived in the subsequent trial.''' IJ^either commonwealth nor defend- ant can offer witnesses, whose testimony is made incompetent by sec- tion 2 of the act of 1887.'* Such are those convicted of perjury or subornation thereof, when the judgment of conviction has not been set aside, or unless the prosecution be for violence done or threatened to his person or property ; or husband and wfe, except in proceedings for maintenance or^for bodily injury done or threatened by one upon the 'Com. V. Boop, 15 W. N. C. 419; "Com. v. Wintersteen, 19 Pa. Co. Ct. Com. V. O'Donnell, 12 Pa. Co. Ct. U2, 2 443, 6 Pa. Dist. R. 641. Pa.Dist.R. 131,23 Pittsb. L. J.N. S. 77. "Act April 13, 1867, P. L. 1232, § 3. '^'Gom. V. Wintersteen, 19 Pa. Co. Ct. "Act May 23, 1887, P. L. 158, § 1. 443, 6 Pa. Dist. R. 641. '»U. S. Const. Amend, art. 5; Pa. " Act May 23, 1887, P. L. 158, § 1. Const, art. 1, § 9. "Com. V. Hughes, 11 Pa. Co. Ct. 470, "Ooto. v. Harman, 4 Pa. 269. 1 Pa. Dist. R. 596; Com. v. Sherift, 10 "P. L. 158. Pa. Co. Ct. 341, 9 Lane. L. Rev. 6. 172 CEIMINAL AND PENAL PROCEDURE. [chap. vi. other, or as to the fact of marriage in a prosecution for adultery. Nor shall confidential conununications between husband and wife, or between counsel and client, be received, unless the privilege be waived upon the trial. If a witness obstructs the magistrate in the performance of his duty, he is guilty of contempt and may be bound over to answer at court without a preliminary information or hearing.^* 106. Decision of magistrate. — The true inquiry is not to determine the actual gailt or innocence of the defendant, but to find whether reasonable and probable cause exists to believe the defendant guilty of the offense charged. "His first duty is to see that the offense charged is a crime, contrary to the statute or the common law ; and, next, that the facts present a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the party charged."^" If he does not find sufficient evidence to make out a prima facie case, then the offender should be discharged ; other- wise held to bail, if the offense be one for which the justice may ac- cept it, or, in default thereof, committed for court. In all cases he shall render judgment within ten days after all the evidence shall be heard.^^ The question of bail will be considered hereafter. When the magistrate, after hearing, holds the prisoner to bail, he has no right to open the case without notice to the prosecutor, and render a different judgment.^^ 107. Waiver of hearing. — The defendant may expressly waive the privilege of preliminary hearing, in which case he will be held on bail or committed. He may also impliedly waive the right, as, when he absents himself from the state when a criminal warrant is is- sued,^* though he would not lose his right to a preliminary hearing where he had been arrested and subsequently discharged, and then, while absent from the state on business, a new warrant was issued for the same offense, returned non est inventus, and an indictment found on the return. In such case the indictment will be quaslied on motion.^* Even if the defendant does waive a hearing before the magistrate so far as his interests are concerned, he cannot, by so doing, interfere with the right of the commonwealth to institute such preliminary ox- " Com. V. McOlure, 10 W. N. C. 466. " Com. v. Delamater, 13 Pa. Co. Ct. "1 MdCinney's Justice, 249. 152, 2 Pa. Dist. R. 562. '•Act March 22, 1877, P. L. 13, § 1. " Com. v. Lowry, 2 Luzerne Leg. Obs. "Hill V. Egan, 160 Pa. 119, 28 Atl. 409. 646. §§ 108, 109] HEARINGS BEFORE JUSTICES. 173 amination, and testimony there taken may be used on the subsequent trial, when the witness has since died.^"* 108. Property found on prisoner. — It has been held generally that property found on the person of a prisoner, if apparently used in the commission of the crime charged, or if it be the fruit of it, may be taken by the magistrate. Further, the justice may issue a search warrant to find such as has been stolen, and may keep any thus ob- tained until the trial, subject, as has been noticed, to the right of the accused to give bond to produce it when desired.^® If property be taken having no connection with the offense, it should be returned, but it has been held that, where possession has been secured by a mayor, he may retain such an amount as will cover the fine imposed, though the prisoner demand its return, and signify his desire to serve the alternative punishment of imprisonment.^'^ 109. Imprisonment of witnesses. — "Ifo witness in any case who en- ters his or her recognizance, in such sum as the magistrate may de- mand, to appear and testify in such prosecutions as require his tes- timony, shall be committed to prison by the judge, alderman, or mag- istrate before whom any criminal charge may be preferred ; provided, however, that in all cases triable in the oyer and terminer, where a positive oath is made, reduced to writing, and signed by the depo- nent, setting forth sufficient reasons or facts to induce the firm belief on the part of the judge, magistrate, or alderman that any witness will abscond, elope, or refuse to appear upon the trial, that then and in such case the judge, magistrate, or alderman may exact bail of said witness to testify."^* But in all such cases the affidavit must be made, showing the rea- son for believing witness will abscond, which must be returned with the transcript It is not enough that the witness is a boarder and may change his place of residence. In such cases, if it does not ap- pear that the witness is in collusion with the defendant, the bail should be placed at from $100 to $.300.2» Where a witness is so committed, and awaits the trial, he is not en- titled to witness fees for the period of his detention, but only for the ^ Com. V. Keck, 148 Pa. 639, 24 Atl. 3,321, where certain bank notes held by 161. the magistrate in Philadelphia were or- "Act March 31, 1860, P. L. 427, § 5. dered to be returned on motion. " McCann v. Barr, 19 Pa. Co. Ct. ^ Act March 31, 1860, P. L. 427, § 56, 619, 6 Pa. Dist. R. 721. See Ex parte "Re Engelke, 11 Pa. Dist. R. 121. Crmg, 4 Wash. 0. C. 710, Fed. Cas. No. 174 CRIMINAL AND PENAL PROCEDURE. [chap. VL time spent at the preliminary hearing, before the grand jury, and in court on the trial of the indictment.®" 110. The return. — It shall be the duty of all aldermen, justices oi the peace, and committing magistrates in this commonwealth, upon complaint being made in criminal cases, upon oath or affirmation of any person or persons, to enter such complaint upon their dockets, with the name, residence, and occupation, if any, of all defendants, bail, and witnesses in every criminal case; and to return to the clerk of the court of the quarter sessions of the peace of the several counties, respectively, a true transcript from the said docket, etc.®^ By act of May 22, 1722,®^ it was required that every recognizance be certified into the several courts where the offense would, under the law, be triable, and at the court "to be holden next after the tak- ing thereof." By act of May 8, 1854,^* the returns are to be made at least ten days before tlie conmiencement of the session of the court to which they are made returnable, unless the information be made within ten days, in which case tliey are to be returned in the same manner as if the act had not been passed.®* By act of June 11, 1885,®^ in case of felony they must be returned within five days. Under the juvenile court act®® they must be returned at once.®^ Additional provisions for Philadelphia are found in the act of March 30, 1821,®8 and by the act of March 13, 1867,®^ requiring a return to the district attorney within forty-eight hours. For a dis- cussion of this question in relation to that county, see Ee Returns hy Magistrates.*'^ The failure to return as required by law not only subjects the offi- cer to punishment, but may relieve the bail of the defendant, for un- less this is done the recognizance cannot be forfeited,*^ and the de- fendant himself, who appears at the next term, cannot be brought to trial months after on an indictment framed by the district attorney "Sluchko V. Luzerne County, 7 Kulp, "P. L. 110, § 1. 526, 16 Pa. Co. Ct. 221, 4 Pa. Dist. R. '"May 21, 1901, P. L. 279. 418; Howard v. Beaver County, 6 Pa. '"Re Returns by Magistrates, 26 Pa. Co. Ct. 397, 23 W. N. C. 574. Co. Ct. 545, 11 Pa. Dist. R. 140. "Act June 11, 1885, P. L. 110, § 1. "7 Smith's Laws, 426, § 1. »' 3 Stat, at L. 298. "■ P. L. 420. "'P. L. 678, § 1. "26 Pa. Co. Ct. 545, 11 Pa. Dist. R. "Re Returns by Magistrates, 26 Pa. 140. Co. Ct 545, 11 Pa. Dist. R. 140. For ''Com. v. Randall, 8 Phila. 373. local acts, see note, Pepper & Lewis's Dig. 2629, PI. 186. §§ 111, 112] HEAHINGS BEFORE JUSTICES. 175 on a transcript not returned until a year after.*^ In such case a new information must be made. 111. Contents of return. — The record of the magistrate is complete if it sets out the regular and successive steps from the making of the affidavit upon which the warrant is founded to the binding over for appearance at court.** "It is not necessary that magistrates who are unlearned in the law should follow so strictly the language used in the act . . . It is sufficient if the district attorney has received such information as brings to his knowledge the nature and the char- acter of the offense, so as to enable him to frame the proper indict- ments."** It should show the location of the office of the justice, the time of hearing, the bail required, that bail was given or commitment issued, and the names, residences, and occupations of defendant, bail, and witnesses.*^ Where a judge of the quarter sessions sits as a committing magis- trate, a suitable record of his action should be made, and the commit- ment entered on the minutes by the clerk. If it is made in chambers it should be reduced to writing and filed with the clerk.*® In proceedings for desertion and maintenance, it is sufficient if a transcript be returned to the court of quarter sessions, which shows the filing of a proper information. It is not necessary that this with the warrant be appended.*^ Even though a transcript of a justice be defective, seasonable ob- jection must be made, or the errors will be waived. After indict- ment, the entry of plea, and trial, it is too late.*^ 112. Trial of crimes by jury before justices. — By the act of May 1, 1861,*' "the several justices of the peace of the counties of Erie and Union be and are hereby authorized to hold monthly courts, with ju- risdiction to hear and determine, in the manner hereinafter provid- ed, the several offenses and misdemeanors mentioned in the 30th, 31st, 44th, 46th, 69th, 72d, 97th, 103d, 112th, 140th, 148th [and] 152d sections of the act of the 31st day of March, 1860, entitled 'An " Com. V. KoKle, 2 Kulp, 329, S. C. 1 ** Com. v. Frescoln, 11 Lane. L. Rev. Del. Co. Rep. 479, 12 Luzerne Legal 161. Reg. 139, 15 Lane. Bar, 11. It was here " Com. v. Durham, 8 Del. Co. Rep. said that a reasonable delay in return- 335. ing the transcript was allowable in for- " March v. Com. 21 W. N. C. 566, 14 nication and bastardy cases, where the Atl. 375. arrest was made before the child was "Barnes v. Com. 11 W. N. C. 375, 2 bom. Pennyp. 506; Com. v. Litzenberger, 15 "Com. ex rel. Applegate v. Pole, 11 Phila. 414, 39 Phila. Leg. Int. 198. Pa. Co. Ct. 226 — ^what was done with * March v. Com. 21 W. N. C. 566, 14 others arrested at the same time need Atl. 375. not appear. Applegate'a Petition, 1 *' P. L. 682, | 1. Pa. Dist. R. 125. 176 CRIMINAL AND PENAL PKOCEDUHE. [chap. vi. Act to Consolidate, Eevise, and Amend the Penal Laws of this Com- mon-wealth.' "^" The provision as to monthly court was repealed by § 1 of April 5, 1862." 113. For what crimes. — The crimes of which these courts are given jurisdiction are blasphemy, disturbing public assemblies, open lewd- ness, cruelly to animals, selling unwholesome provisions or adulterat- ed liquors or medicines, revealing telegraph despatches, assault and battery, larceny, cheating lodging-house keepers, firing woods, break- ing windows, tearing of knockers, etc., and cutting down timber trees. Jurisdiction of prosecutions for affray was given to justices of the peace in Bradford coimty,^^ and Mercer county,^^ and over violations of liquor laws in Bradford county,^* and Mercer counly,^® though the act as to the latter county has been held to be unconstitutional, being contrary to the Bill of Rights, since it allows either party to demand a jury trial, instead of leaving it to the discretion of the de- fendant^* And as to all counties in case of a charge for larceny, the courts are given power only when the property stolen is of less value than $10.^^ These various acts allowing trial by jury before justices of minor offenses before a jury of six are constitutional, for though, generally speaking, consent cannot confer jurisdiction, yet in these cases an '""This act was extended to the 21, P. L. 517; to Wayne, by the act of county of Armstrong by the act of 1868, 1870, February 18, P. L. 187; and to April 11, P. L. 858; to Beaver, by the Wyoming, by the act of 1868, April 13, act of 1872, February 21, P. L. 129; to P. L. 981. As to Indiana county, see Bradford, by the act of 1867, February the act of 1867, April 15, P. L. 1264, 14, P. L. 197; to Butler, by the act of which repeats the provisions of the act 1868, April 11, P. L. 858; to Clarion, of 1861 almost verbatim, except that it by the act of 1873, April 10, P. L. 699; provides for a trial by a jury of four; to Crawford, by the act of 1863, April as to Potter county, see the act of 1867, 1, P. L. 215; to Forest, by the act of April 12, P. L. 1161; and as to Tioga 1867, April 13, P. L. 1217; to Lawrence and Susquehanna counties, the act of by the act of 1870, February 25, P. L. 1870, February 19, P. L. 204." Such 254; to Lehigh, by the act of 1864, jurisdiction exists in Lackawanna March 30, P. L. 134; to Luzerne, by the county, which was organized from Lu- act of 1866, April 11, P. L. 603; to Mer- zerne county, by decree of court of Au- cer, by the act of 1864, March 30, P. gust 13, 1878. L. 134; to Northampton, by the act of "'P. L. 274. 1864, March 30, P. L. 134; to Northum- '"'Act February 14, 1867, P. L. 197, berland, by the act of 1868, April 11, P. § 2. L. 846; to Perry, by the act of 1866, "'Act March 22, 1865, P. L. 566, § 1. April 11, P. L. 613; to Pike, by the act "'Act February 28, 1867, P. L. 241, of 1870, February 18, P. L. 187; to Sny- § 1. der, by the act of 1865, February 14, P. »» Act May 24, 1871, P. L. 1108, § 6. L. 143; to Venango, by the act of 1863, " Oom. v. 8ml, 10 Phila. 496, 30 April 22, P. L. 551 ; to Warren, by the Phila. Leg. Int. 194. act of 1867, March 6, P. L. 354; to "'Act April 5, 1862, P. L. 274. Washington, by the act of 1865, March § 114] HEARINGS BEFORE JUSTICES. 177 act of assembly permits the giving of such consent, and the defend- ant is not deprived of trial by jury of twelve unless he so desires it.°* 114. The information. — "The sworn complaint made at the incejj- tion of the proceedings, stands not only at, but as, the basis of them, and of necessity furnishes the test by which the jurisdiction of the justice to go on and try the defendant is to be determined. It is, so far as the court is concerned, the indictment upon which he is arraigned and which he is called upon to meet. If it charges an offense within those enumerated by the statute, the justice has the jurisdiction there given, and the defendant may invoke it on his behalf. But if not, any attempted proceedings under the statute are beyond his jurisdic- tion, and so of no effect."^® So, the justice has no jurisdiction of aggravated assault and battery, since no statute gives jurisdiction in such case.®" If a more serious charge be made, the justice cannot discharge it and proceed to trial on a lesser offense included within the same in- formation, but should return the whole proceeding to court.^-^ The act of April 11, 1868,^^ prevents injustice to the defend- ant in such cases by making the prosecutor liable for costs, if he charge an offense not triable before a justice and jury of six, and afterwards, in court, the defendant is only convicted of such an of- fense. The same particularity is not required in the information that is necessary in an indictment. It must be taken in connection with the record.®^ It must charge a statutory offense,^* and one of which the justice has jurisdiction. So, in prosecutions for larceny the infor- mation must show the property to be of less value than $10, and a conviction will not be sustained where the complaint says "about $10."®® And in such case it must also charge to whom the property stolen belonged."® It must state the county in which the offense oc- curred,®^ though it has been held to be sufficient if that appears else- where in the record.®® And as all process must be in the name of the '^ Lf the money as aforesaid, to order and decree a distribution of the same, first, to pay the legal costs on such judgment, and upon the proceedings before the magis- trate who shall have taken such recognizance; second, to pay a rea- sonable compensation for the person, his attorney, or agent who shall have prosecuted the same to final judgment; third, to pay such an amount as will compensate any person who has sustained damage by reason of said crime, with interest thereon, to be counted from the date of its commission ; fourth, to pay the residue to the proper coun- ty, or into the treasury of the commonwealth, as the case may be. And the order and decree shall state a specific sum to be applied to each item. To determine this one or more auditors may be appointed, who shall take testimony, and return the same with their report,^ ''^ and the decree thereon is final and conclusive. Prior to this act and the similar one for Philadelphia county,* ^^ the costs of the prothonotary in the suit could not be collected by him,*''^ and even now his payment is dependent upon the collection of the recognizajice. Under the second direction, counsel fees are to be allowed, and where the parties settle the case, during the pendency of an applica- tion to remit, the court will allow the adjustment to stand if such fees be paid, but the right to receive them is limited to the district attor- ney, and the attorney for the county commissioners, unless private counsel have been employed with the knowledge of the district attor- ney.-'''* '"* Com. V. Dougherty, 8 Phila. 367. "" Com. ex rel. Norbury v. Philadel- "" Com. V. Becker, 1 Woodw. Dec. 297. pMa County, 8 Serg. & R. 151. ™Com. V. Taylor, 1 Chester Co. Rep. ™Com. v. McEnight, 1 Woodw. Deo. 261. 502. So, where the defendant had paid '"Act July 30, 1842, P. L. 449, § 26. private counsel, such payment was dis- '"Act April 22, 1846, P. L. 476, regarded and an order made for the § 6. proper person. 203 CRIMINAL AND PENAL PEOCEDtlRE. [chap. vir. If there be any residue it is payable to the person sustaining dam- age by reason of the commission of the crime. The wording of this act is not such as to prevent a corporation from securing compensa- tion for damage sustained.^ ^^ Under the act of 1846, relating to Philadelphia, it has been held that the intent of the legislature was to "signify the just and legal claim of one who has been directly in- jured by the commission of the crime, and at the same time, a claim definitely ascertained and fixed by the very evidence which proves the offense against the public. We can say this only of cases in whicli restitution or payment to the injured party is included in the crim- inal sentence ; as, for instance, in larceny or bastardy. "^'^* But a dif- ferent rule is laid down under the general act of 1842, where the court has the power to appoint auditors to assess the damage. So, in the case of embezzlement, where no restitution was ordered, a share was allowed.-''^'^ The right to participate extends only to the loss resulting from the offense charged in the information and warrant, and not to damage sustained by reason of other similar offenses charged.-'^* A wife who prosecutes her husband for adultery is not entitled to share in the distribution.^'® Though the party damaged has a right to an allowance on distribution, yet he has no vested interest in the recog- nizance until an order is made fixing his share, so that he has no standing to object to a remission or moderation of the forfeiture.-'®* By the fourth direction any balance is distributable to the proper county or into the treasury of the commonwealth, as the case may be. By prior legislation'*^ all such moneys received were payable into the county treasury.*®^ Local acts for many of the counties in the state provide for the payment of this residue for the use of the law library of the county. The general act for counties with populations of less than 150,000^** provides for the payment of one half of the forfeit- ures to such libraries. But this means one half of the county's share as fixed by the act of 1842, and the expenses must be deducted before "'Com. V. Justice, 34 Pa. 165. in County v. Winpenrw, 2 Pearson (Pa.) ""Com. V. Robhins, 26 Pa. 165. So 107. one who lost money at a gambling house '"Act March 24, 1818, 7 Smith's of one indicted for that offense was not Laws, 120, § 1. entitled to share under the act. "" Under this act the guardians of the '" Com. V. Justice, 34 Pa. 165. poor were not entitled to such sum, ex- "' Com. V. Justice, 34 Pa. 165. cept in the special cases mentioned in ™ Com. V. Blocker, 4 Lane. Bar, No. the local act of January 27, 1819. Man- 28. agers for Relief of Poor v. Philadelphia, ^Com. V. Bhich, 61 Pa. 495; Com. 6 Serg. & R. 483. use of Dauphin County v. Smohe, 2 ""Act May 11, 1901, P. L. 165. Pearson (Pa.) 18; Com. use of Dauph- § 154] BAIL. 203 the division is made.^** It has been suggested that where such sum is paid to such an association, and further expense becomes necessary, such as extraditing the prisoner, the cost of so doing should be ad- vanced by it.^®^ 152. Review of proceedings. — Appeals are allowed to the supreme court from orders and decrees upon forfeited recognizances of the court of common pleas,^*" at the next ensuing term thereafter. This provision was held to give the right to take out a writ of error from an order either of the common pleas or quarter sessions.-'*'^ But it was subsequently said by Williams, J. : "The suggestion in the case of Com. V. Ehoads, 9 Pa. 488, that from the order of either court there is an appeal, is a mere dictum not warranted by the language of the proviso or by any other provisions of the statute, which are too plain to admit of any doubt as to tbeir meaning."^^® Except on common- law certiorari, the supreme court has no jurisdiction to review the or- der of the court of quarter sessions, and that writ brings nothing for review except the record proper.^^* In appeals from the common pleas, where the amount involved is less than $1,500, or on certiorari to the quarter sessions, the superior court would now have jurisdic- tion by the acts of 189-5, 1897, and 1899.i9o An appeal may be taken from the decree of the common pleas re- fusing to remit a forfeiturej and such subjects the case to the same re- view as in other proceedings.'"*^ This may be done by the common- wealth, as well as by the defendant. ■'^^ A party entitled to partici- pate in the proceeds recovered on the forfeited recognizance is a party aggrieved within the meaning of the act of May 22, 1722,^®* and is entitled to take out a writ of error in an action of debt on such recog- nizance.-''* Where an order for remission has bean made or there has been a refusal to make such, by the court of quarter sessions, no appeal lies. "* Glenn's Case, 26 Pa. Co. Ct. 488. Keller v. Gom. 2 Monaghan, 757 ; Shrw- "" Com. V. Still, 11 York Legal Rec. 6. er v. Com. 2 Rawle, 206; Harres v. Com. "" Act December 9, 1783, 2 Smith's 35 Pa. 416 (but in this case only a cer- Laws, 84, § 3. tiorari was taken out, and no appeal, so "" Com. V. Bhoads, 9 Pa. 488. the court held the question of relief ^ Bross V. Com. 71 Pa. 262. was not before the court, and nothing "' Com. V. Bird, 144 Pa. 194, 22 Atl. could be determined in regard to it) . 877 ; Com. v. OUender, 135 Pa. 536, 19 "" Com. v. Kanetiheimer, 25 Phila. Atl. 945; Brass v. Gom. 71 Pa. 262. Leg. Int. 124. "" Com. V. Fogelman, 3 Pa. Super. Ct. ™ 1 Smith's Laws, 131, § 9. 566, 40 W. N. C. 17. "' Com. v. Kwnenheimer, 25 Phila. '" Mishler v. Com. 62 Pa. 55, 1 Am. Leg. Int. 124. Eep. 377; Fox v. Com. 81* Pa. 511; 204 CRIMINAL AND PENAL PEOCEDURE. [chap. vu. The only jurisdiction in such cases is by certiorari, by virtue of which the regularity of the record alone can be examined.-' *" 'No autliority is given the supreme court to review on appeal an or- der of the common pleas distributing the proceeds of the forfeited re- cognizance under the act of 1842, since by it such decree is made final and conclusive.'** "" Com. v. Bird, 144 Pa. 194, 22 Atl. of 1889, it is called an appeal, but 877; Com. v. Oblender, 135 Fa. 536, 19 treated in the appellate court as a cer- Atl. 945; Brass v. Com. 71 Pa. 262; tioraxi. Act May 9, 1889, P. L. 158, Com. V. Pogelman, 3 Pa. Super. Ct. 566, § 1. 40 W. N. C. 17. By virtue of the act "" Com. v. Justice, 34 Pa. 165. CHAPTEE VIII. HABEAS CORPUS. 153. Generally. 154. Federal courts. 155. Conflicting jiuisdiction of state and Federal courta. a. Release from state custody by Federal courts. 6. Release from Federal custody by state courts, c. Concurrent jurisdiction. 156. State courts. o. Appellate courts, i. Lower courts. 157. Jurisdiction where detained by another court. a. Of concurrent jurisdiction. 6. By a lower court. c. By governor's warrant. 158. In what matters granted. 159. On whose application granted. 160. The petition. 161. Illegal confinement. 162. Issuance of the writ. 163. The return. 164. Effect of pendency of writ. 165. The hearing. 166. Issue to try facts. 167. The order. 168. Effect of discharge. 169. Review of proceedings. 170. Habeas corpus and certiorari as ancillary vrrits. 171. Common-law writs of habeas corpus. 172. Suspension of the writ. 173. Costs. 153. Generally. — Habeas corpus is the name of a class of writs having for their object the production of a party before a court or judge, and so called because they are directed to a person who detains another in custody and commands him to produce or "have the body" of that person before the court for a specified purpose.^ It is a right given by the Constitution of the United States,^ and of the state of Pennsylvania,* except when, in cases of rebellion or invasion, the pub- lie safety may reqiiire its suspension. The privilege is not conferred ' 9 Ene. PI. & Pr. p. 1002. » Pa. Const, art. 1, § 14. ' U. S. Const, art. 1, § 8, subd. 2. 205 206 CRIMINAL AND PENAL PROCEDURE. [chap. vm. by the acts of assembly relating thereto, but the proceedings are thus regulated. 154. Federal courts. — The jurisdiction of the Federal courts is pre- scribed by the Eevised Statutes of the United States.* It extends to these cases, namely : Where the prisoner is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; where he is in custody for an act done or omitted in pursuance of a law of tlie United States, or of an order, process, or decree of a court, or judge thereof ; where he is in custody in violation of tlie Constitution or of a law or treaty of the United States ; where, being a subject or citizen of a foreign state and domiciled therein, he is in custody for an act done or committed under an alleged right, title, authority, privilege, or exemption claimed under the commis- sion, or order or sanction of any foreign state or under color tiiereof, tlie validity and effect whereof depend upon the law of nations ; and where it is njcessary to bring a prisoner into court to testify. All of these provisions apply to any custody whatever, whether by a state court, a United States court, or a porson acting outside of court.* 155. Conflicting jurisdiction of state and Federal courts. — a. Release from state custody hy Federal courts. — ^Federal courts may issue writs of habeas corpus where one is alleged to be restrained of liberty in violation of the Constitution or laws of the United States, in any of the eases in which they are given the power to issue writs at all. But "the courts of the United States have great respect for state au- thority ; and it is only after full and most careful investigation and consideration, although acting within the undoubted scope of its ju- risdiction, that a Federal court will take from a state officer a person committed to him by a state court and charged with an offense against state laws which are attacked as in conflict with the Federal Consti- tution."* The question of the power of the Federal court to release from state custody under the act of Congress of March 2, 1833, known as the "Force bill," an officer of the United States held for acts done while executing process of the court, has arisen in Pennsylvania.'^ The de- fendant was here released by the circuit court of the United States.* On rule for attachment against the sheriff for giving up the bodies, *U. S. Rfiv. Stat. § 763, U. S. Comp. 496; Ex parte Royall, 117 U. S. 241, 29 Stat. 1901, p. 592. L. ed. 868, 6 Sup. Ct. Rep. 734. °9 Enc. PI. & Pr. p. 1005. '•Thomas \'.Crossin,5 Clark (Pa.) 328. " Woolson, J., in Re Jordan, 49 Fed. ' See opinion in Eo) parte Jenkins, 1 238. See also Re Spiokler, 10 L. R. A. Phila. 451. 10 Phila. Leg. Int. 166, 2 446, 43 Fed. 653; Re Flmn, 57 Fed. Wall. Jr. 521, Fed. Cas. No. 7,259. § 155J HABEAS CORPUS. 207 the Supreme Court held the Federal court to have no jurisdiction, since such court was bound by the return of the writ, which did not show the offense to have been committed in the execution of Federal process. Upon order the prisoners were again arrested on a capias, and, in default of bail, committed. Again the circuit court discharged on habeas corpus.^ The position taken in this case by the Federal court has been approved in other proceedings by the Supreme Court of the United States.^" Where the writ is granted, all pro- ceedings in the state court are stayed until final judgment thereon.^* 6. Release from Federal custody by state courts. — By the early de- cisions in Pennsylvania the writ of habeas corpus was frequently al- lowed to secure possession of the body of a defendant held under Fed- eral custody.^^ Though the right was denied where the defendant was serving a sentence of a United States court.^* Similar rulings had been made in other states, while the right had generally been denied in inferior Federal courts. The result of this was a conflict of decision which was not settled until 1858, when the Supreme Court of the United States decided against the power of the state courts.^* Taney, Ch. J., laid down these rules : The state court or judge who is authorized by the laws of the state to issue the writ of habeas corpus may issue it in any case where tJie party is imprisoned within its ter- ritorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what autbority the pris- oner is confined within the territorial limits of the state sovereignty. And it is the duty of the marshal or other person having the custody of the prisoner, to make known to the judge or court, by a proper re- turn, the authority by which he holds him in custody. But it is his duty to keep the possession of the defendant, and not to surrender him to the state court, and no state judge or court, after they are judicially •See opinion of Kane, J., 5 Clark Brightly (Pa.) 9; Lockington's Ccuse, (Pa.) 346, note, 2 Wall. Jr. 540, Fed. Brightly (Pa.) 269; and see the numer- Cas. No. 7,259. ous army and navy cases in the succeed- "iSe Neagle, 135 U. S. 1, sub nom. ing note. Cunnmgham v. Tf eagle, 34 L. ed. 55, 10 " Williamson's Case, 26 Pa. 9, 67 Am. Sup. Ct. Rep. 658. Dec. 374, and see Williamson v. Lewis, «U. S. Rev. Stat. §§ 763, 765; U. S. 39 Pa. 9. Comp. Stat. 1901, pp. 594-596; Re " Ableman v. Booth, 21 How. 506, 16 Shibuya Jugvro, 140 U. S. 291, sub L. ed. 169. Here were two cases in one nom. Shibuya Jugvro v. Brush, 35 L. ed. of which a prisoner committed by a 510, 11 Sup. Ct. Rep. 770. United States commissioner was dis- ^ Com. ex rel. Bressler v. Gone, 3 charged on habeas corpus, and in the Grant Cas. 447; Bressler's Case, 3 Lu- second the defendant was released after zerne Leg. Obs. 324: Olmsted's Case, judgment. 203 CRIMINAL AND PENAL PROCEDURE. [chap, viir, informed that the party is imprisoned under the authority cf the United States, has any right to interfere with him, or to require him to be brought before him. Even after this decision it was still claimed that this ruling only deprived the state courts of their power where the prisoner was held under lawful authority of the United States, and therefore where il- legal ; as, in the case of a soldier enlisted while a minor, the writ could be granted.^ ^ This gave rise to another decision of the United States Supreme Court in 1871,^^ which held that the state courts have no jurisdiction where the prisoner is held by the authority, or under the claim and color of authority, of the United States, be it civil or mili- tary, and therefore no power existed to discharge an enlisted minor from the custody of the recruiting officer. This ruling would seem to allay further confusion. Since then the writ has been entertained and the prisoner discharged in one case in Pennsylvania, though the question of jurisdiction does not seem to have been raised.^^ But this decision is not in accord with the principle stated. The correct rule has been enunciated by the superior court, in which Newcomh's Case is not discussed, though called to its attention, as appears by brief of counsel. It was here stated that a state court has no juris- diction upon habeas corpus to inquire into the validity of enlistments into the Marine Corps of the United States, and to discharge enlisted men from said service, when in the judgment of the court their en- listment has not been made in conformity with the laws of the United States.18 c. Concurrent jurisdiction. — In certain cases either Federal or state courts have jurisdiction, and where it first attaches, it will con- tinue until the proceeding is finally disposed of.^® The mere fact that the habeas corpus involves questions under the Federal Consti- tution and acts of Congress does not deprive of the power, where the ^^ Com. ex rel. Leake v. Blake, 8 v. Ifwrroj/, 4 Binn. 487, 5 Am. Dec. 412; Phila. 523; Com. ex rel. Bressler v. Com. v. Barker, 5 Binn. 423; Com. ex Gane, 3 Grant Cas. 447; Com. ex rel. rel. Menges v. Cam,ac, I Serg. & R. 87; Oormley v. Self ridge, 7 Phila. 76; Com. v. Rohinson, 1 Serg. & R. 353. One Bressler's Case, 3 Luzerne Leg. Obs. case held to the contrary where deser- 324 ; Com. v. Carter, 3 Luzerne Leg. Obs. tlon was charged. Shirk's Case^ 5 37, 20 Phila. Leg. Int. 21, 10 Pittsb. L. Phila. 333, 20 Phila. Leg. Int. 260. J. 179; Com. ex rel. M'Lain v. Wright, " Tarble's Case, 13 Wall. 397, suh 3 Grant Cas. 437; Com. v. Beatty, 18 nom. United States v. Tarble, 20 L ed. Phila. Leg. Int. 316,— following the de- 597, Chase, Ch. J., dissented, cisions prior to Ableman v. Booth, " Neieetmb'a Case, 21 Pa. Co. Ct. 560, which were Com. ex rel. Webster v. Fox, 9 Kulp, 270. 7 Pa. 336 ; Com. ex rel. Dougherty v. " Com. ex rel. Smith v. Butler, 19 Pa. Biddle, Brightly (Pa.) 447, 4 Clark Super. Ct. 626. (Pa.) 35; Com. v. Callan, 6 Binn. 255; "9 Enc. PI. & Pr. p. 1010. Com. V. Gamble, 11 Serg. & R. 93; Com. § 156] HABEAS CORPUS. 209 prisoner is not held by the authority, or by claim or color of authority, of the United States. Thus, it may be granted in extradition cases.^" 156. State courts. — a,. Appellate courts. — Express jurisdiction is given the siipreme court in such cases by constitutional provision,^^ as well as by legislative enactment.^* The superior court was given original jurisdiction also,^* though the power thus conferred has been held to be limited, where the pro- ceedings arose from a civil action, to cases involving such sums as this court is given power to review.^* The act has been amended so as to give to the court or any judge thereof "full power and authority when and as often as there may be occasion to issue writs of habeas corpus returnable to the said court."^'' Though the appellate courts have original jurisdiction and may ex- ercise it under proper circumstances,^® yet it is not to be used as a writ of error to review the proceedings of other courts. "It is almost needless to say that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offense, we cannot correct its rulings in this proceeding, however erroneous they may be."^^ The writ cannot be used to annul the judgment of the lower court in a collateral way.^^ Though the appellate court may, in its discre- tion, grant the writ, where a similar proceeding has been had in a lower court and refused.^® Even beiore sentence, unless some espe- cial reason be shown, the higher courts will not interfere with the regular metliod of procedure by indictment, trial and appeal, for that would be virtually transferring the case to another court.^** In one case the writ was granted, where it was used in lieu of a writ of error, by the court of common pleas. The defendant having been improp- ""iSoBfi V. Oormolly, 111 U. S. 624, 28 v. Ketner, 92 Pa. 372, 37 Am. Rep. 692. L. ed. 542, 4 Sup. Ct. Rep. 544. See also Com. ex rel. Markley v.. Bierer, ='Pa. Const, art. 5, § 3. 2 Pittsb. 380. '^Act February 18, 1785, 2 Smith's ''Com. ex rel. Wilson v. Keeper of Laws, 275, § 1. Jail, 26 Pa. 279; Byers v. Com. 42 Pa. "'Act June 24, 1895, P. L. 212, § 7. 89; Com. ex rel. McCabe v. Christopher, ^Gom. ex rel. Scott v. McAleese, 10 22 Pa. 450; Williamson's Case, 26 Pa. Pa. Super. Ct. 286, 44 W. N. C. 207, 30 9, 67 Am. Dec. 374 ; Com. ex rel. Morton Pittsb. L. J. N. S. 4, 1 N. B. N. 511. v. Deacon, 8 Serg. & R. 72; Com. ex rel. ''Act May 5, 1899, P. L. 248, § 3. Davis v. Lecky, 1 Watts, 66, 26 Am. Com. ex rel. Scott v. McAleese, 10 Pa. Dec. 37; Respublica v. Keeper of the Super. Ct. 286, 44 W. N. C. 207, 30 Gaol, 2 Yeates, 349; Com,, v. Commas, Pittsb. L. J. N. S. 4, 1 N. B. N. 511, 4 Serg. & R. 83; Com. v. Eamlright, 4 was argued before the approval of this Serg. & R. 149. act, but decided subsequently. " Com. ex rel. Dougherty v. Biddle, ''Com. ex rel. Torrey v. Ketner, 92 4 Clark (Pa.) 35, Brightly (Pa.) 447; Pa. 372, 37 Am. Rep. 692; Merte's Caise, Ex parte Lawrence, 5 Binn. 304. 8 Watts & S. 374; Com. v. HoHoway, 5 ^ Com. ex rel. Scott v. McAleese, 192 Binn. 512. Pa. 410, 43 AU. 1079. " Paxson, J., in Com. ex rel. Torrey Pa. Crim. Proc. — 14. 210 CRIMINAL AND PENAL PROCEDURE. [chap. vm. erly held by a magistrate on a capias, and the statutory time for issu- ing a writ of certiorari or appeal having passed, no other means ex- isted for reviewing the legality of the proceeding.*^ b. Lower courts. — Judges of the courts of common pleas of the counties in which the prisoner may be detained have jurisdiction to issue writs of habeas corpus,*^ either during the term, or out of term, or in vacation.** The same powers are given to the court of quarter sessions in Philadelphia county.** 157. Jurisdiction where detained by another court. — a. Of concur- rent jurisdiction. — It is not competent for one court to inquire into the regularity of the proceedings of another having jurisdiction.*® The court of common pleas of one county cannot inquire into the sentence of a similar court of another county,*® nor is it proper for the common pleas to inquire into the wisdom of the remanding of a pris- oner by a justice of the supreme court ;*^ or for the common pleas to inquire into the appointment of a guardian by the orphans' court.** h. By a loiuer court. — As has been noticed, the appellate courts will not allow the writ of habeas corpus to become a substitute for writ of error or certiorari. "Upon a habeas corpus the judgment even of a subordinate state court having jurisdiction of the subject-matter can- not be reviewed in this court; but such judgment, however erroneous, must be taken as legal and valid until reversed on writ of error and appeal."*' But it may interfere where the judgment or commitment is void. "On the other hand, it is equally clear that if the relator is being pros- ecuted for a matter which is not an indictable offense by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him."*" So, where the act complained of is not a criminal offense ;*^ or proc- ess shows a second arrest under the same indictment after release from imprisonment imposed under it ;*^ or the warrant for collection '^ Com. ex. rel. Barron v. Keeper of Leg. Int. 88 ; White's Petition, 30 County Prison, 14 Phila. 396, 37 Phila. Pittsb. L. J. 251. Leg. Int. 485. " Com. ex rel. Winder v. TTetfcerfeoW, "Act February 18, 1785, 2 Smith's 2 Clark (Pa.) 476. Laws, 275, § 1. =» Com. ex rel. Phillips v. Klemsen, 23 " Act April 13, 1791, 3 Smith's Laws, Pa. Co. Ct. 207, 9 Pa. Dist. R. 165. 28, § 9. "> Williamson's Case, 26 Pa. 9, 67 Am. "Act April 4, 1837, P. L. 377, § 2. Dec. 374. "' Com. ex rel. Newton v. Keeper of " Paxson, J., in Com. ex rel. Torrey Debtors' Apartment, 1 Ashm. (Pa.) v. Ketner, 92 Pa. 372, 37 Am. Rep. 692. 10 (here order by district court of Phil- *^ Com. ex rel. Torrey v. Ketner, 92 adelphia, writ asked for in common Pa. 372, 37 Am. Rep. 692. pleas) ; Com. v. Adams, 3 Am. L. J. 134. " Com. ex rel. Herring v. Smith, 11 "Doyle V. Com. ex rel. Davis, 107 W. N. C. 34. Pa. 20 J Graham's Petition, 46 Phila. § 157] HABEAS CORPUS. 211 of a militia fine does not mention the proceedings by virtue of which issued/* or that the prisoner was held under warrant of a justice who acted as coroner at inquest;** or where the warrant of the justice shows the exercise of jurisdiction not possessed,***' or that a married woman was held under a capias ;*® or that the person held is not the defendant,*" the higher court may discharge. But where a crime is charged, and jurisdiction of the offense is possessed, there will be no interference for mere errors or irregularities in the proceedings. Thus, there will be no discharge by the supreme court on the ground of completion of sentence, where the record produced is evidently mis- written, by mistake of the clerk,*'^ or where the prisoner was sentenced to the wrong prison ;** or on the ground that keepers are not fully en- forcing the sentence, which required imprisonment at hard labor.** The principles stated apply similarly to subordinate courts, in their review of proceedings of still lower courts. So where the commit- ment of a justice is void f or a crime is not charged f^ or where the act proceeded under does not give to the justice jurisdiction f^ or the ordinance which formed the basis of the proceedings was invalid f^ or the statute giving authority has not been complied vrith;^* or it ap- pears that the justice acted beyond the territorial limits authorized,^® or that defendant is held after surrender by bail, when new bail is given;®® or where the prisoner is improperly detained,®''' — ^the writ will be issued, and a discharge granted. It would seem that, in case of summary convictions, the evidence may be examined, and if the judgment is erroneous the prisoner will be released.®* But where the process is legal, and has issued, in the ordinary course of justice, from a court or magistrate having jurisdiction of the subject-matter, though there has been error or irregularity in the " Gtm. V. Alexander, 6 Binn. 176. " Com. ex rel. Overfield v. Walker, 14 " Bw parte Schults, 6 Whart. 269. Pa. Co. Ct. 586, 3 Pa. Dist. E,. 534. Prior to act May 27, 1841. " MoFadden's Case, 2 Kulp, 259, 14 "siGeyger v. 8toy, 1 Dall. (Pa.) 135. Lane. Bar, 158. " Com. ex rel. McDowell v. Keeper of ™ Com. ex rel. Rasmus v. Broioer, 20 County Prison, 11 W. N. C. 341. Pa. Co. Ct. 405, 7 Pa. Dist. R. 254, 9 " Respublica v. Qaoler of Philadel- Kulp, 317. phia, 2 Yeates, 258. " Com. v. McFadden, 9 Lane. Bar, " Com. V. Wright, 126 Pa. 464, 17 Atl. 129. 620. "Norton's Case, 15 W. N. C. 395. " Reddill's Case, 1 Whart. 445. Here defendant aMucted from New "Pember's Case, 1 Whart. 439. York, and his return demanded by the "Com. ex rel. Steward v. Irujin, 1 governor of that state. Contra, where Clark (Pa.) 408. the governor does not demand, Dow's "' Com. V. Jones, 1 Lack. Legal Rec- Cas.e, 18 Pa. 37. ord, 415. " Com. ex rel. Joseph v. M'Keagy, 1 "Com. ex rel. Leslie v. May, 24 Pa. Ashm. (Pa.) 248; Com. v. King, 2 Co. Ct. 546; Martin's Case, Binn's Jus- Kulp, 386. See Penal actions, chapter tice, 177. XXXII., § 762, post. 213 CRIMINAL AND PENAL PROCEDURE. [ohap. viii. proceedings previous to the issuing of it, the imprisonment is not il- legal, and no discharge will be granted.^* In cases where a criminal proceeding arises out of a civil proceed- ing, the prisoner may be discharged during the pendency of the civil suit,^" though in the meantime an indictment may be found.®^"^ c. By governor's warrant. — The state courts may also review the action of the governor in the granting of warrants for extradition, and in so doing they are not limited to the question of identification under the act of June 4, 1879.«» 158. In what matters granted. — The first twelve sections of the act of 1785®* relate to criminal matters, but the 13th extends the vnrit of habeas corpus to "all cases where any person, not being committed or detained for any criminal or supposed criminal matters, shall be con- fined or restrained of his or her liberty under any color or pretense whatsoever." So, it has been allowed in arrest under civil process.^® It is the proper remedy for a master to secure possession of an ap- prentice,*® but the court would not interfere to determine the right to property, and declined to order the return of the apprentice from an officer of the army with whom he had enlisted, leaving relator to action for damages for loss of services.''^ But the courts will grant the writ to determine whether the binding is a valid one.®^ The writ may be granted at the instance of a guardian to secure possession of a ward,®^ and upon failure to obey the order of delivery an attachment will issue. '^° In the case of writ to secure the posses- sion of children, the court will award them according to what seems '" Com. eo) rel. Davis v. Lechy, 1 " Beoher v. Jarrett, 3 Binn. 403 ; Watts, 66, 26 Am. Dec. 37 ; Com. ea! re?. Oeyger v. Btoy, 1 Dall. (Pa.) 135, Davis V. Clemons, 18 Pa. Co. Ct. 447, 5 though held not to be applicable to such Pa. Dist. R. 670, 2 Lack. Legal News, cases in a dictum in William.son v. 327. Lewis, 39 Pa. 9. "Com. V. Dickinson, 3 Clark (Pa.) "Com. v. Beck, 1 Browne (Pa.) 277. 265 ; Com. v. Somers, 1 Northampton- " Com. v. Robinson, 1 Serg. & R. 353 ; Co. Rep. 289; Com. ex rel. Well v. Com. v. Harris, 7 Pa. L. J. 283, note. Davis, 10 Pa. Co. Ct. 596, 1 Pa. Dist. "Com. v. Atkinson, 8 Phila. 375; R. 173, 29 W. N. C. 500; Com. ex rel. Com. ex rel. Thrash v. Airey, 5 Kulp, Vrioh V. Stine, 2 Lack. Legal News, 179, 83; Com. v. Kendig, 1 Serg. &, R. 366; 13 Lane. L. Rev. 228; Com. v. Bouser, Com. ex rel. Ruggles v. Wilbanks, 10 17 Lane. L. Rev. 414. But see Com. v. Serg. & R. 416; Com. v. Crommie, 8 Moore, 20 Phila. 390, 9 Pa. Co. Ct. 501, Watts & S. 339, in which cases the dis- 48 Phila. Leg. Int. 157. charge was granted; Com. ex rel. Gear "-" Com. ex rel. Perry v. Beintzer, 13 v. Conrow, 2 Pa. 402, in which it was W. N. C. 129; Com. v. Moore, 20 Phila. refused. 390, 9 Pa. Co. Ct. 501, 48 Phila. I^eg. °" Com. ex rel. McOormick v. Dugan, Int. 157. And according to Ex parte 13 Pa. Co. Ct. 83, 2 Pa. Dist. R. 772, 7 Felts, 1 Kulp, 468, held to bail. See Kulp, 66, 10 Lane. L. Rev. 257; Com. also § 1, supra. ex rel. Keisel v. Eeisel, 13 Montg. Co. "Com. v. Track, 3 Pa. Co. Ct. 65; L. Rep. 172. Com. v. McCandlass, 7 Pa. Co. Ct. 51. " Com. ex rel. Lotory v. Reed, 59 Pa, "February 18, 2 Smith's Laws, 275. 425. § 158] HABEAS CORPUS. 213 to be for their best interests. "We have never in this state held that the courts are bound to a strict adherence to the old common-law rules as to the right to the custody of children."''^ On habeas corpus they may be awarded to the mother -^^ or to the father -^^ or to a sister ;'^* or to grandparents '^^ or to aunts •^'^ or to other relations -p or to third parties ;^^ or leave the child to elect which parent ;^* or discharge him entirely.®" In all such cases the right to the legal custody of a minor child is a question addressed to the sound discretion of the court, and there will be no interference where the liberty of the party is not in- juriously or unwarrantably infringed.®^ If the question has been determined between the same parties, and on the same facts, by an- other court of this or a foreign state, the court applied to will not re- vise that decree.*^ In these proceedings the father is considered the guardian of the child by nature, and prior to the act of 1895, where both father and mother were equally fit and safe custodians, the possession would be awarded to him. By that act it is provided, that hereafter "a mar- ried woman who is the mother of a minor child, and who contributes by the fruits of her own labor or otherwise toward the support, main- tenance, and education of her said minor child, shall have the same and equal power, control, and authority over her said child, and shall have the same and equal right to its custody and services, as is now by law possessed by her husband, who is the father of such minor child ; provided, however, that the mother of such minor child is oth- erwise qualified as a fit and proper person to have the control and custody of said child." That "in all cases of dispute between the " Lowrie, J., in Com. ex rel. Gillceson ™ Com. v. Kenney, 1 Chester Co. Rep. y. Gilkeson, 1 Phila. 194. 322; Re Fitzpatriek, 9 Kulp, 309. ^' Com. V. Addicks, 5 Binn. 520; Com. ''^ Com. ex rel. Eegler v. SoMadensky, V. Fee, 6 Serg. & R. 255; Com. ex rel. 9 W. N. C. 315. Demot V. Demot, 7 Phila. 624, 64 Pa. "Com. v. Miller, 8 Pa. Co. Ct. 525; 305, note; Com. ex rel. Moore v. Moore, Com. ex rel. Boles v. Bane, 21 Pa. Co. 1 Pittsb. 312. Ct. 662, 8 Pa. Dist. R. 518, 15 Montg. "Coot. v. Addichs, 2 Serg. & R. 174; Co. L. Rep. 50, 29 Pittsb. L.J.N.S. 307. Com. ex rel. Smith v. Smith, 1 Brewst. " Com. ex rel. Gilkeson v. Gilkeson, (Pa.) 547; Com. ex rel. Potter v. Pot- 1 Phila. 194. ter, 3 Luzerne Leg. Reg. 209. °°iJe Ealeas Corpus, 9 Kulp, 435. ^* Com. V. Nutt, 1 Browne (Pa.) 143. Here possession of a boy of eighteen, " Com. ex rel. Goerlitz v. Barney, 4 who lived alone, was sought by an Brewst. (Pa.) 408; Com. ex rel. Drum- uncle. mond V. Ashton, 8 W. N. C. 563; Com. '^ Com. ex rel. Boles v. Bane, 21 Pa. ex rel. O'Donnell v. Fitepatrick, 18 Pa. Co. Ct. 662, 8 Pa. Dist. R. 518, 15 Co. Ct. 15, 5 Pa. Dist. R. 309; Com. ex Montg. Co. L. Rep. 50, 29 Pittsb. L. J. rel. Norton v. Devine, 3 Lack. Legal N. S. 307. News, 202 ; Com. ex rel. Hauer v. Wise, »' Com. v. Ehert, 24 Pa. Co. Ct. 648. 3 Pa. Dist. R. 289; Com. ex rel. Lewis V. Williams, 9 Kulp, 289. 214 CEIMINAL AND PENAL PROCEDITEE. [chap. viu. father and mother of such minor child as to which parent shall he entitled to its custody or services, the judges of the courts shall de- cide in their sound discretion as to which parent, if either, the cus- tody of such minor child shall he committed, and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child."*' Since this legislation, if both are proper persons the court will award the child to the mother.** The writ may issue to bring up the body of one detained as in- sane, though the relator has been declared so, and a committee ap- pointed;*^ but where one is confined after a verdict of a jury that he was insane at the time of the commission of a criminal act, and is subsequently cured, it is not necessary that a writ of habeas cor- pus be taken out, since a petition under the act of May 14, 1874,** is allowed.*^ So, relief will be granted by the issuance of the writ where a mother is removed by force from one daughter's house by another daughter.** In such cases the writ is intended to protect against illegal confinement at the time of its issuance, without regard to the legality of the contention when it began.*' 159. On whose application granted. — ^Any prisoner who stands com- mitted or detained for a criminal matter, unless for treason or felony, the species whereof is plainly set forth in the warrant of com- mitment, or one acting on his or her behalf, may demand from the person having him or her in charge a copy of the warrants of commit- ment or detainer under which such person is held, and the refusal to so give within six hours subjects such person to a fine for the benefit of the party grieved, and renders him incapable to hold or execute his office.'" TTpon presentation to one of the courts having jurisdiction of a copy of the warrants thus given, or upon oath of two witnesses who were present, that such were refused, it becomes the duty of the judge "to award and grant a habeas corpus under the seal of the court . . . to be directed to the person or persons in whose cus- tody the prisoner is detained, retiimable immediately before the said =" Act June 26, 1895, P. L. 316. " Com. ex rel. Wevill v. Ourby, 3 "Com. ex rel. Myers v. Myers, 18 Pa. Brewst. (Pa.) 610, 8 Phila. 372. Ck). Ct. 385, 6 Pa. Dist. R. 31. "Re Bust, 177 Pa. 340, 35 Atl. 623. " Com. ex rel. Draper v. Kirkhride, 3 " Act February 18, 1785, 2 Smith'a Brewst. (Pa.) 393. Laws, 275, § 10. ■» P. L. 160. " Luhen's Petition., 11 Pa. Dist. R. 146, 59 Phila. Leg. Int. 97. § 160] HABEAS CORPUS. 215 judge or justice, and to the intent, and that no officer, sheriff, jailer, keeper or other person to whom such writ shall be directed may pretend ignorance of the import thereof, every such writ shall be made in this manner, 'By act of assembly 1785,' and shall be signed by the judge or justice who awards the same."®^ This is made the duty of the court, and a penalty is provided where the duty is not obeyed.®^ The 13th section provides for any person illegally confined, but not regularly committed or detained for a criminal matter, or sup- posed criminal matter. This allows an application to be made on oath or affirmation by the one in custody, or another on his or her behalf, setting forth that such confinement or restraint, to the best of the knowledge and belief of the person applying, is not by virtue of any commitment or detainer for any criminal or supposed criminal matter whereupon the writ shall issue in the manner and under the same penalties, as thereinbefore directed. Under these provisions the application may be made by the person in custody, or some one on his or her behalf. But if another does so act, and the prisoner repudiates it, after having it explained to him, where he appear* to be of sound mind and mature years, the writ will be dismissed,^* though this will not be done unless the repudiation appears to the court to be the intelligent and voluntary act of the person making it.®* The writ may issue, not only at the instance of the party, but by another person having the right to the custody o± him. Thus, one in possession of prisoner by virtue of bailpieee may recover his body from an officer who takes custody of him under a capias.*^ And, as has been noticed, a guardian, or parent under some circumstances, would have the right to recover the custody of a child. 160. The petition. — It should be in writing under oath or affirma- tion. The illegal detention must be alleged, and a copy of the war- rant or commitment attached, where the prisoner stands committed or detained upon some criminal charge, or a legal excuse must be shown for its omission. The application must not be made "within fifteen days next pre- "Aet February 18, 1785, 2 Smith's moved by brother. A habeas corpus Laws, 275, § 1. was issued against the brother, who "Act February 18, 1785, 2 Smith's moved to dismiss on the ground of re- Laws, 275, § 1. pudiation of the proceeding as shown " Com. ew rel. McLaughlin v. Kil- by paper presented. lacky, 3 Brewst. (Pa.) 565. " Holsey v. Trevillo, 6 Watts, 402; "* Com. V. Hoffman, 4 Kulp, 428. Respublica v. Gaoler of the City ™Act June 6, 1893, P. L. 328, § 1. Northampton Co. Rep. 185. ^™Act April 17, 1866, P. L. 112, § 1. "' Finletter, J., in Gerdemann v. Com. "'May 23, 1887, § 1, P. L. 158. 11 Phila, 374, 32 Phila. Leg. Int. 12. '" Com. V. Fenicle, 20 Pa. Co. Ct. 68, "* Com. v. McNall, 1 Woodw. Dec. 6 Pa. Dist. R. 789, 6 Northampton Go. 423 ; Com. v. STieri-ff, 10 Pa. Co. Ct. 341, Rep. 94 (here legality of commitment 9 Lane. L. Rev. 6; Com. ex rel. Ch-ew v. was questioned). Such was done in Carlisle, Brightly (Pa.) 36; Kennedy's Com. ex rel. Torrey v. Ketner, 92 Pa. Case. 26 Pittsb. L. J. 81. 372, 37 Am. Rep. 692. In Gerdemann ™ Respuhlica v. Davison,4:Yeates, \25. V. Com. 11 Phila. 374, 32 Phila. Leg. ™ Com. ex rel. Trager v. Kintzer, 16 Int. 12, it was said the procpedings as Pa. Co. Ct. 453, 4 Pa. Dist. R. 605. § 165] HABEAS CORPUS. 821 hearing on habeas corpus in homicide cases, that the killing was jus- tifiable, he should admit to bail, and this has been done.*®'' The court is not bound to discharge the relator, because the charge made in the commitment is not made out, if it appears that he has done some indictable act.**® Where a warrant is issued by a judge in accordance with the act of 1860, to take a prisoner found in his county to another county of the state for trial, all that he can inquire into on habeas corpus is the identity of the prisoner and the regularity of tJae process.*** In the case of warrants issued by the executive to secure extradition, the court of common pleas has power to review the action of the gov- ernor, notwithstanding the act of 1879, which seems to limit it to identification.**" In habeas corpus proceedings instituted by a witness who has re- fused to testify, and, as a result, been committed for contempt, the regularity of the process against him will be examined, but not of the indictment which was on trial when he refused to obey the court.*** Nor will the court interfere with the exercise of discretion given ofiS- eers, if reasonably used.**^ Many other eases have come before the courts in which they have- determined that under the particular facts the charge was, or was not, made out. An extended reference would be useless. We find such writs in charges of conspiracy,*** embezzlement,*** false pretenses,**^ forcible entry and detainer,**® forgery,**^ homicide,**® larceny,*** ^ Com. V. Crcmford, 8 Phila. 490; Com. v. Tach, 1 Brewst. (Pa.) 511; Com. V. Megary, 8 Phila. 607; see Com. v. McGlean, 2 Pars. Sel. Eq. Cas. Mann's Case, 2 Legal Gaz. 329. 367; Com. ex rel. Mintzer v. The Sher- ^Com. V. Hichey, 1 Clark (Pa.) iff, 8 Phila. 645; Com. em rel. Valletta 436; Com. ex rel. Jack v. Crwrvs, 2 v. Sheriff, 15 Ihila. 393, 38 Phila. Leg. Clark (Pa.) 172; Gerdeman v. Com. Int. 412. 11 Phila. 374, 32 Phila. Leg. Int. 12. "* Com. ex rel. Torrey v. Ketner, 92 Query in Com. v. Sheriff, 10 Pa. Co. Ct. Pa. 372, 37 Am. Eep. 692. 341, 9 Lane. L. Rev. 6, as to the effect ^"^ Com. v. Eickey, 2 Pars. Sel. Eq. of the act of 1887 upon these decisions. Cas. 317; Com. ex rel. Wolfe v. Keeper ^' Com. V. Taylor, 11 Phila. 386, 32 of Philadelphia County Prison, 6 Phila. Phila. Leg. Int. 142. The offense is 78, 13 Phila. Leg. Int. 189; Com. eo; reZ. committed out of the county, where the Gordon v. Keeper of County Prison, 15 prosecutor and witnesses reside. W. N. C. 282; Com. v. Collins, 8 PhiU. ""Com. v. Track, 3 Pa. Co. Ct. 65; 609. Com. V. MoCandlass, 7 Pa. Co. Ct. 51. '" Com. v. Keeper of Prison, 1 Ashm. ^"Com. V. Bell, 145 Pa. 374, 22 Atl. (Pa.) 140; Com. ex rel. Boden v. Mo- 641, 644. Oolrick, 5 Kulp, 529, 1 Del. Co. Rep. 446. ^'^Com. ex rel. Johnson v. Halloway, "''Com. v. The Sheriff, 10 Pa. Co. Ct. 42 Pa. 446, 82 Am. Dec. 526. Here di- 341, 9 Lane. L. Rev. 6. rected to warden of penitentiary who "* Com. v. Crawford, 8 Phila. 490 ; declined to deduct from prisoner's sen- Com. v. Megary, 8 Phila. 607; Com. r.x tence for good conduct. rel. Mengle v. The Sheriff, 16 Phila. '*» Com. ex rel. Wrigley v. Phila- 518, 41 Phila. Leg. Int. 366. delphia County Prison Superintendent, "" Com. v. Hutchinson, 2 Pars. Sel. 6 Phila. 169, 23 Phila. Leg. Int. 85; Eq. Cas. 384. 223 CRIMIJSTAL AND PENAL PROCEDURE. [chap. vin. larceny by bailee,^'" malicious mischief to timber,i*^ obscenity/*^ obstruction of officers/^'' and perjury ;i^* and where a civil suit is pending from which the charge has arisen.^^** 166. Issue to try facts. — "The habeas corpus act authorizes the court to decide both fact and law; but it has been the practice in the common pleas to direct an issue for trial of facts in doubtful cases."^^'* A similar ruling is found in 1797/^* in which it is said: "If we had any doubt whether the ti'ue person was arrested, we should hold ourselves bound to submit the matter to a decision by jury." 167. The order. — The court may admit to bail, discharge, or re- mand, but it cannot order that the respondent go into another state, and submit himself to the jurisdiction of a foreign tribunal, and upon failure so to do to attach him.-'*'' 168. Effect of discharge.— "JSTo person who shall be delivered or set at large tipon a habeas corpus shall, at any time thereafter, be again comcmitted or imprisoned for the same offense, by any person or per- sons whatsoever, other than by the legal order and process of such court, wherein he or she shall be bound by recognizance to appear, or other court having jurisdiction of the cause," and any person so doing, or assisting therein, shall forfeit to the party grieved £500.^*^ This provision does not extend to commitments on civil process, be- cause it refers only to those committed for offenses.^*® The effect of the discharge on habeas corpus is a sufficient termination of a criminal prosectition to sustain an action for malicious prosecution. ■'®*' Will it prevent further criminal ™ Com. ex rel. Peaslee v. The Sherif, Urich v. Stine, 2 Lack. Legal News, 10 Phila. 203. 179, 13 Lane. L. Rev. 228; Com. v. "^Com. V. Cornell, 4 Kulp, 81. Heinteer, 13 W. N. C. 129; Ex parte ^'Re Arentsen, 26 W. N. C. 359, 18 Felts, 1 Kulp, 468. Wash. L. Rep. 672, 7 Lane. L. Rev. 366, "' Graham v. Grahaw,., 1 Serg. & R. 47 Phila. Leg. Int. 414, 21 Pittsb. L. J. 330. But after decision of jury the N. S. 101. court may order a new trial if it sees fit. ^" Com. ex rel. Walker v. The Sheriff, ^'^ Respublica v. Gaoler of Philadel- 3 Brewst. (Pa.) 343. phia, 2 Yeates, 258. "' Com. ex rel. Beed v. The Sheriff, "' Com. ex rel. Sage v. Sage, 160 Pa. 11 W. N. C. 134; Com. ex rel. Wain- 399, 28 Atl. 863. Wright v. Megee, 2 Phila. 396; Com. v. ™ Act February 18, 1785, 2 Smith's CorfieU, 1 W. N. C. 457. Laws, 275, § 11. ^"a Com. V. Bomers, 1 Northampton "' Becker v. Jarrett, 1 Binn. 374. Co. Rep. 289; Com. ex rel. Wehh v. ^''Charles v. Ahell, Brightly (Pa.) Davis, 10 Pa. Co. Ct. 596, 1 Pa. Dist. R. 131; Zehley v. Storey, 117 Pa. 478, 12 173, 29 W. N. C. 500; Com. ex rel. Atl. 569. § 169] HABEAS CORPUS. 223 proceedings? It clearly will, by new information of a per- son not acting officially for the court, unless tke discharge was by reason of the failure of the first warrant to state an offense. In such case the relator is not in custody a second time, for the reason that the first arrest was not for any offense at all.^®^ And it will not prevent recommitment where a recognizance was taken as a condition of the release, by the wording of the act The difficulty arises in determining whether the court may issue a bench warrant or allow the district attorney to submit a bill, where the same offense is charged. In Cotti. v. Bidgway^^^ Judge King, in discharging the prisoner, said: "I rejoice, however, that our judgment is not con- clusive of the subject. The sole effect of this decision is, that, in the present state of the evidence, we see no sufficient cause to hold the defendant to bail. It is still competent for the proper public officer, particularly in a different state of the evidence, to submit tlie case to the grand jury." "A discharge upon habeas corpus is not neces- sarily, and in all cases, the end of the prosecution. The public prose- cutor, for public reasons, and with leave of the proper court, may send a bill to the grand jury, even in a case where the prisoner has been discharged upon habeas corpus."^®* The contrary has been held where the prisoner was first discharged under the two-term rulai" To recover the penalty mentioned in this section it is necessary that the proceeding be under the act of 1785. If not, no recovery can be had.i«5 169. Review of proceedings. — 'Eo writ of error vnll lie to the de- cision of the court of common pleas in habeas corpus proceedings.''®® The judgment of the court below is not reviewable, except on another habeas corpus issued out of the supreme court.'®^ But on certiorari the case may be brought before the appellate court, upon which the regularity and legality of the proceedings are examined, but not the evidence adduced at the hearing.'"* But there must first be a final "" Com. ex rel. Healy v. lAttle, 33 W. Phila. Leg. Int. 384. Here the writ N. C. 486. was the common-law one of habeas ™2 Ashm. (Pa.) 247. corpus ad subjiciendum to bring for re- '"Diotum Paxson, J., in Zebley v. view the evidence taken before the mag- Storey, 117 Pa. 478, 12 AO. 569; istrate on a charge of larceny by bailee. dictum by Pierce, J., in Com. v. Craii> No recovery could be had where a sec- ford, 8 Phila. 490; Sehopifel v. Kleinz, ond arrest took place, because the pro- Brightly (Pa.) 132, note. ceeding was not under the act of ™Oom. v. McBride, 2 Brewst. (Pa.) 1785. 545 ; see dictum to same effect. Com. "" Russell v. Com. 1 Penr. & W. 82 ; ex rel. Eealy v. Little, 33 W. N. C. 486 ; Clarh v. Com. 29 Pa. 129. Com. V. McCarthy, 11 Pa. Dist. R. 161. "' Clark v. Com. 29 Pa. 129. ^"Schofield V. Boot, 12 Phila. 333, 35 '°» Com. v. Kryder, 1 Pennyp. 143; 224 CEIMINAIi AND PENAL PROCEDURE. [chap. viii. judgment.-'®^ An order of the court discharging the relator is such a final judgment as will authorize the review of the proceedings/'"* and the person from whose custody he is taken is such a party ag- grieved as can take out the writ of certiorari ;^'^^ but if the officer did not have the actual custody of defendant, he has no such stand- ing. ^^^ 170. Habeas corpus and certiorari as ancillary writs. — "Certiorari and habeas corpus may be severally used as ancillary to each other. If a habeas corpus at common law issues, and the return to it shows that the prisoner is held by virtue of proceedings in a court, or before a magistrate, over which the court issuing the habeas corpus has a su- pervisory authority, the said court may issue a certiorari to bring up the record; and may thereupon hear and decide the case, or re- view and correct the proceedings, in order to give efficacy to the writ of habeas corpus. If a certiorari be issued to bring up a case into a higher court for hearing or review, the court may also issue a ha- beas corpus to bring up the defendant; and may, in a proper ease, admit him to bail to appear at the hearing and abide the event ; and the form of the recognizance must be adapted to the exigencies of the case. . . . And the court of common pleas, as a court, has the same authority at common law over its inferior magistrates."^''* The writ of habeas corpus has been granted in aid of the certiorari in these cases.^'* And tlie certiorari has issued in aid of the habeas corpus in these cases.-'"* An essential prerequisite to the granting of any such special writ of certiorari is a meritorious and well-grounded petition for a habeas corpus. If that is wanting the cei-tiorari should be refused and the petition therefor dismissed."^ ^^ As we have before noticed, these Jack V. Tvyyford, 10 Pa. Super. Ct. 475 ; ^'' Lowrie, C. J., in Gosline v. Place, Doyle V. Com. ex rel. Davis, 107 Pa. 20 ; 32 Pa. 520. Com. V. Newoomet, 18 Pa. Super. Ct. "* Oosline v. Place, 32 Pa. 520; Com. 508; Thatcher's Requisition, 18 Pa. v. Gibions, 9 Pa. Super. Ct. 527; Jack Super. Ct. 533. v. Twyford, 10 Pa. Super. Ct. 475; and ■™ Com. ex rel. Parker v. Blatt, 165 in Duif v. McDonough. 2 Pa. Super. Ct. Pa. 213, 30 Atl. 674. Here custody of 373, 38 W. N. C. 496, according to opin- children awarded, but the writ ordered ion in Com. v. Gibboiis, 9 Pa. Super. Ct. to stand over for the present. No final 527, though it does not appear in the order was made thereon. report of the case. "° Doyle V. Com. ex rel. Davis, 107 "' Com. ex rel. Nuber v. Keeper of Pa. 20; Com. ex rel. Smith v. Butler, 19 Workhouse, 6 Pa. Super. Ct. 420, 41 Pa. Super. Ct. 620. W. N. C. 549; Com. v. Bell, 145 Pa. "'■Doyle V. Com. ex rel. Davis, 107 374, 22 Atl. 641, 644; Com. ex rel. Pa. 20 ; Com. ex rel. Smith v. Butler, Keely v. Perkins, 124 Pa. 36, 2 L. R. A. 19 Pa. Super. Ct. 626. Here deputy 223,16 Atl. 525, 528; Com. ex rel.Tor- sheriff in both cases. rey v. Ketner, 92 Pa. 372, 37 Am. Rep. "■ Com. V. 'Sewcomet, 18 Pa. Super. 692 ; Schofield v. Root, 12 Phila. 333. Ct. 508. "° Com. V. Green, 185 Pa. 646, 40 AU. §§ 171, 173] HABEAS COKPUS, 225 proceedings are not to be used as a substitute for a writ of error, or, unless some special reason be shown, to change the orderly and regu- lar way of proceeding.^ '^ When it is allowed, it may be by any mem- ber of the court, on sufficient cause shown ; but is to be heard by the court in banc.-'''* 171. Common-law writs of habeas corpus. — The act of 1785 does not provide for the issuance of the writ in all cases in which it was allowed at common law. "The common-law efficacy of the habeas corpus goes far beyond this, and the writ takes many forms, accord- ing to the character of the case to which it is applied."^''* The fol- lowing have been used in Pennsylvania: The habeas corpus ad subjiciendum is a common-law writ used to bring up the proceedings of inferior courts for review, and in the meantime to release or hold to bail the one in custody. Illustrations of its use are found in the cases in the paragraph preceding.^®** The habeas corpus cum caxisa, sometimes called habeas corpus ad faciendum et recipiendum, was a writ issuing out of a superior court to an inferior one, and directed to the judges of the latter to remove civil causes pending before them to be tried in the superior courts.^*^ Illustrations in Pennsylvania are few.^^^ The writ of habeas corpus ad testificandum issues to bring a wit- ness under legal or illegal restraint before the court to testify in some pending suit or proceeding. But it is not a writ of right If im- providently granted by the court, it will not be enforced.^** 172. Suspension of the writ. — Both the Constitution of the state and of the United States allow the suspension of the writ in cases of rebellion and invasion when the public safety may require it.-'** The duration of the suspension is limited to the existence of the condi- tions which rendered it necessary, and when they cease to exist, the privilege of the writ is ipso facto restored. So, the court took ju- dicial notice of the fact that the war of the Eebellion had ceased, and that therefore the writ was no longer suspended.^*^ 96; Quay's Petition, 189 Pa. 517, 42 Koecker v. Koecker, 7 Phila. 371. Atl. 199. 379. ™ Com. ex rel. Scott v. McAleese, 192 ^^ Williamson v. Lewis, 39 Pa. 9. Pa. 410, 43 Atl. 1079; S. C. 10 Pa. ■^'Benner v. Frey, 1 Binn. 366; Fenn Super. Ct. 286, 44 W. N. C. 207, v. Keigler, 2 Yeates, 241; Livesey v. 30 Pittsb. L. J. N. S. 4, 1 N. B. N. Gorgas, 1 Binn. 251; Lyle v. Baker, 4 511. Dall. (Pa.) 433. ^^Gosline v. Place, 32 Pa. 520; Com. ''^ Koecker v. Koecker, 7 Phila. 371. V. Gihhons, 9 Pa. Super. Ct. 527. ""U. S. Const, art. 1, § 9, subd. 2; ™ Williamson v. Leviis, 39 Pa. 9. Pa. Const art. 1, § 14. "° See also Schofield v. Root, 12 "^ Com. ex rel. Cozzens v. Frimk, 13 Phila. 333, 35 Phila. Leg. Int. 384; Pittsb. L. J. 127, 13 Am. L. Reg. 700. Pa. Crim. Proc. — 15. 226 CRIMINAL AND PENAL PROCEDURE. [chap. viii. Should any act of assembly limit the right to the writ, it would be unconstitutional. Thus, it has been held that the act of 1879, provid- ing for the arrest of fugitives from justice on the governor's warrant, could not limit the courts to identification of the person arrested, but that on the hearing of the habeas corpus the governor's action could be reviewed.**® 173. Costs.— Provision is made for the sheriff's costs in bringing the prisoner to the judge or justice, by requinug the tender by the relator to him of such amount as shall be fixed.*^^ OfEcers and witnesses are to receive the same fees as in cases before a justice of the peace. The cost of service and attendance on the part of the commonwealth is payable by the county.**® A subsequent act provides for the placing of commonwealth's costs, which shall be the same as in civil cases, upon the county or upon the prosecutor, in the discretion of the court upon petition of the relator.*** ^''Oom. V. Track, 3 Pa. Co. Ct. 65; >^Act April 17, 1866, P. L. 112, § 2. Com. V. McGandlass, 7 Pa. Co. Ct. 51. "»Act April 14, 1868, P. L. 98, i 1. "'Act February 18, 1785, 2 Smith's Laws, 275, § 1, CHAPTER IX. MODE OF ACCUSATION. 174. Criminal information. 175. Indictment in general. 176. Based on returns of magistrates. 177. Based on coroners' returns. 178. Based on constables' returns. 179. Conformity of indictment with the return. 180. When sustained. 181. When quashed. 182. Effect of variance. 183. Effect of permission of court. 184. Based on presentments of grand jury as to matters given it in charge by the court. 185. Based on presentments of grand jury as to matters within their own knowl- edge. 186. Preferred by district attorney without previous binding over. 187. Supervision of court. 188. Review of court's action. 174. Criminal information. — A formal accusation is essential to ev- ery trial for crime. Ordinarily this is in the form of an indictment, but it may be under a few circumstances by information. The crim- inal information is not to be confounded with the complaint made be- fore a justice of the peace by which prosecutions are usually insti- tuted. It is a written statement filed and presented on behalf of the state by the prosecuting attorney, accusing the defendant of an offense which is by law subject to prosecution in this way. At common law informations were permissible in case of misdemeanors, and are in use now in many states. By the Constitution of 1874,^ as well as by ear- lier Constitutions, it is provided that "no person shall, for any indict- able offense, be proceeded against criminally, by information, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger ; or, by leave of the court, for oppression or misdemeanor in office." "Criminal proceed- ings by information were odious to our forefathers and were oppress- 'Pa. Const, art. 1, § 10. 227 228 CRIMINAL AND PENAL PROCEDURE. [chap. ix. ive to the citizens ; but the f ramers of the Constitution seemed to rec- ognize the fact that the nature of the crime of 'misdemeanor in of&ce' was such as to warrant the allowance of am information. Possibly the motive actuating them in such allowance was twofold ; first, that the offense concerned and affected the public at large; second, the offense might be of such a character as to affect no individual as an individ- ual, hence it was unlikely that any single individual would be at the trouble of bringing a prosecution."'' The prosecutions in Pennsylvania in this manner are few, and none are of recent origin. All were against justices of the peace after leave given.^ The power has been recognized in Pennsylvania since the Constitution of 1874.* 175. Indictment in general. — The bill of rights provides that no warrant shall issue without probable cause, supported by oath or affirmation, subscribed to by the affiant.^ Ordinarily, "(1) there must be an arrest based upon information made under oath before a magistrate; (2) there must be a hearing at which the defendant may be confronted with his accuser and his witnesses, and have an opportunity to cross-examine tbe lat- ter, whereupon, if a prima facie case is made out, iJie magistrate re- turns it to the court; a bill of indictment is then prepared and laid before the grand jury, when the witnesses must again be sworn or affirmed. Twelve of the grand jurors must concur in order to find 'a true bill.' When such a bill is found, and not before, the accused may be placed on his trial. But before he can be called upon to plead, he is entitled to have the name of the prosecutor indorsed upon the back of the bill. He thus has some one responsible for a malicious prosecution. And this is Ms right"® "By the opportunity given to the accused of hearing and examining the prosecutor and his wit- nesses, he ascertains the time, place and circumstances of the crime charged against him, and thus is enabled, if he is an innocent man, to prepare his defense, a thing of the hardest practicability if a pre- liminary hearing is not afforded to him." "It is the fitness and pro- priety of the ordinary mode of criminal procedure, its equal justice to accuser and accused, that render it of almost universal application 'Bell, J., in Com. v. Surd, 177 Pa. piaiica v. Griffiths, 2 Dall. (Pa.) 112. 481, 35 Atl. 682. Not a proceeding by 'iJe Grand Jury, 4 Northampton Co. information. Rep. 374-, Com. v. Eurd, 177 Pa. 481, ' RespuUica v. Burns, 1 Yeates, 370 35 Atl. 682. (for taking insufficient bail) ; Respub- "Pa. Const, art. 1, § 8. lica V. Prior, 1 Yeates, 206 ( for miade- ' Paxson, J., jRe Memorial, 8 Phila. moanoi- and oppression in office) ; Res- 478. §§ 176-178] MODE OF ACCUSATION. 229 in our own criminal courts, and make it unwise to depart from it, ex- cept under special circumstances, or pressing emergencies."^ But there are certain exceptional or extraordinary modes of prefer- ring criminal charges, well recognized in practice.* It has never been considered that the bill of rights prohibits all modes of originat- ing prosecutions against alleged offenders, except those instituted by warrant of arrest issued by a committing magistrate, and a binding over for trial after hearing.® That section of the Constitution ap- plies only to warrants.^" 176. Eased on returns of magistrates. — The formality of the ordi- nary complaint made before the justice, followed by the arrest, hear- ing, and commitment or bail, has already been considered. Under certain circumstances the offender may be bound over at once by the justice, as in the case of interference and obstruction of a hearing be- fore him,-*^ or where an offense is committed before the court, such as perjury.^^ And the defendant is not deprived of his hearing, where a complaint is made and warrant issued, but cannot be served because he has fled from justice.^^ The indictment can only be based on a return properly made,** and charging facts which constitute an indictable offense.** 177. Based on coroners' returns. — The power of the coroner to make a return after inquisition, and of the district attorney to frame an indictment thereon, has been discussed under the head of the juris- diction of coroners.-" 178. Based on constables' returns.— Constables were bound at com- mon law to present at the regular term of court all offenses inquir- able in those courts. By statute it is proAaded: "Whenever the 'King, J., in Re Lloyd, 3 Clark (Pa.) "Com. v. Delamater, 13 Pa. Co. Ct. 188. 152, 2 Pa. Dist. R. 562; Com. v. Shupp, 'Com. V. Green, 126 Pa. 531, 17 AU. 6 Kulp, 430; Com. v. Reidy, 10 Kulp, 878; Re Lloyd, 3 Clark (Pa.) 188. 370. For general statement of this " Com. V. Wilson, 2 Chester, Co. Eep. power see Com. v. English, 11 Phila. 164; MoCullough v. Com. 67 Pa. 30. 439, 442, 33 Phila. Leg. Int. 72; Re "Com. ex rel. 'Winder v. yUetherhold, Lloyd, 3 Clark (Pa.) 188, 192. 2 Clark (Pa.) 476. "Com. v. Kohle, 2 Kulp, 329. Delay " Com. V. McClure, 10 W. N. C. 466. of one year. ^ March v. Com. 12 Cent. Rep. 557, "Com. v. Conrad, 25 Pa. Co. Ct. 32, 21 W. N. C. 566, 14 Atl. 375. See Re 10 Pa. Dist. R. 342, 58 Phila. Leg. Int. Prothonota/ry, 9 Phila. 492, 29 Phila. 290, 18 Lane. L. Rev. 191; Goto. v. S*a«- Leg. Int. 397, where on a rule to pro- zer, 5 Pa. Co. Ct. 256; Hoffman y. Com. duee election papers, the evidence 123 Pa. 75, 16 Atl. 609; Com. v. Burns, showed no actual violation of the law, 17 Lane. L. Rev. 171; Com. v. Groff, but gross negligence, and the court de- 8 Lane. L. Rev. 267 — ca.ses of summary elined to commit, saying that the power convictions, where the justice should should only be exercised sparingly when have imposed the sentence, imperatively demanded by the ends of " See Jurisdiction, chapter II., supra. public justice. 830 CRIMINAL AND PENAL PROCEDURE. [chap. ix. judges of the said courts shall fix the time for the meeting of the grand jury, as provided in the 2d section of this act, it shall be the duty of constables, aldermen, and justices of the peace to make all such re- turns to the said courts as they are required under existing laws to make on the day fixed as aforesaid for the meeting of the grand juiy."^^ Provision for returns in special instances has been made by leg- islative enactment. ■** Thus, it is directed that, "the constables of the respective wards and townships shall make return of retailers of liquors, as now pro- vided by law; and in addition thereto it shall be the duty of every such constable, at each term of the court of quarter sessions of the respec- tive counties, to make return, on oath or aflfirmation, whether within his knowledge there is any place within his bailiwick kept and main- tained in violation of this act, and it shall be the especial duty of the judges of all said courts to see that this return is faithfully made. And if any person shall make known in writing, with his or her name subscribed thereto, to such constable, the name or names of anyone who shall have violated this act, with the names of witnesses who can prove the fact, it shall be his duty to make return thereof on oath or afiirmation to the court, and upon his wilful failure to do so he shall be deemed guilty of a misdemeanor, and upon indictment and con- viction shall pay a fine of fifty dollars, and be subject to imprison- ment, at the discretion of the court, of not less than ten nor more than thirty days."^* They shall return the names of offenders against the liquor laws on election days,'"' the places where liquors axe sold,^^ " Act March 18, 1875, P. L. 28, § 3. Luzerne, Susquehanna, Pike and Craw- " McCullough v. Com. 67 Pa. 30; Re ford, to make diligent search for all per- Grand Jury, 4 Northampton Co. Rep. sons who shall, either directly or indi- 374. rectly, be engaged in the sale and traffic "Act March 31, 1856, P. L. 200, § 33. of liquors, wines, or other strong drinks. The act of 1858, April 20, P. L. 365, §§ and make quarterly returns thereof, 12, 13, makes further requirements as under oath, to the courts of quarter ses- to returns and prescribes the fees to be sions of the proper counties ; and it shall received. Upon this subject see the fol- be the duty of the courts to make dili- lowing special acts : As to Bradford and gent inquiries, of the constables, of the Susquehanna counties, 1869, March 19, manner and fidelity with which they P. L. 441; 1872, March 9, P. L. 302; have attended to and discharged the re- 1873, April 10, P. L. 743; as to Chester quirements hereby enjoined upon them; county, 1866, March 12, P. L. 190; as and should the courts be satisfied of the to Erie, Crawford, Venengo and War- unfaithfulness of any constable in this ren counties, 1866, March 21, P. L. 260; respect they are hereby authorized and as to Allegheny county. 1866, March 22, empowered to suspend or remove him P. L. 298. For Erie, Luzerne, Susnue- from office, and appoint another one in hanna. Pike and Crawford counties: his place." March 12, 1866, P. L. 182, "It shall be the duty of the constables § 1. of the several cities, boroughs, wards, ^°Act March 13, 1872, P. L. 24, § 3. and townships, in the counties of Erie, "Act May 13, 1887, P. L. 108, § 11. § 179] MODE OF ACCUSATION. 231 report defects in planlc or turnpike roads,^^ offenders of pnre-food laws,^* and election disturbances.^* Such a return is sufficient ground to authorize the court to issue process to bring in the offender and to direct the district attorney to frame a bill for submission to the grand jury.*" The return need not be drawn with all the formal nicety of an in- dictment. It is sufficient if, when taken as a whole and given a rea- sonable intendment, it charges a criminal offense. So, it is enough if the officer answers that tliere are violations of the law, and refers to a notice of citizens calling his attention to the act charged, which is attached.^® Nor is it necessary that the return allege offenses, which some act of assembly has distinctly directed to be returned, for any acts, which are triable by the court to which the return is made, may be set forth.*'^ Indictments so based have been sustained which charged a nuisance,*® election offenses,*" fornication and bastardy,^" and liquor offenses.^ ^ But an indictment based on a return charg- ing the defendant with selling liquor to persons of known in- temperate habits will be quashed if it appears that the notice upon which the return is made does not set forth the names of the persons to whom the liquor was sold, or that their names were unknown to the informer.^* In all such cases leave of court must first be obtained before the district attorney presents a bill of indictment framed thereon.^* 179. Conformity of indictment with the return. — Except in extra- ordinary cases the defendant is to be called for trial only for the of- fense which has been charged preliminarily, and for which he is bound over to answer. The facts which form the foundation of the prosecution are found in the return itself, not in extraneous papers, such as a letter from the justice to the district attorney giving ad- ■^^ Act May 22, 1878, P. L. 85, § 4. Pa. 164, 27 L. R. A. 231, 30 Atl. 836; '='Act May 21, 1885, P. L. 22, § 5. Com. v. New Bethlehem, 15 Pa. Super. "Act July 2, 1839, P. L. 519, § 112. Ct. 158. And it is made the duty of the court in *" Gom. v. Warner, 17 Pa. Co. Ct. 556. such cases to cause indictments to be "° Com. v. Miles, 21 Pa. Co. Ct. 553, preferred against the persons so cfifend- 29 Pittsb. L. J. N. S. 247. ing. '^McCuUough v. Com. 67 Pa. 30; '" McCullough v. Com. 67 Pa. 30. Davidson v. Com. 5 Cent. Rep. 484, 6 ^Com. V. Bredin, 165 Pa. 224, 30 Atl. Atl. 170; Com. v. Plaff, 17 Pa. Co. Ct. 921; Com. v. T^lew Bethlehem, 15 Pa. 302, 5 Pa. Dist. E. 59, 26 Pittsb. L. J. Super. Ct. 158. N. S. 254; Com. v. Beldhom, 15 Pa. ^'McCullough v. Com. 67 Pa. 30; Super. Ct. 33. Com. V. Warner, 17 Pa. Co. Ct. 556 ; == Com. v. Powers, 17 Pa. Co. Ct. 304. Com. V. Miles, 21 Pa. Co. Ct. 553, 29 "Com. v. Pfa^, 17 Pa. Co. Ct. 302, Pittsb. L. J. N. S. 247. 5 Pa. Dist. R. 59, 26 Pittsb. L. J. N. S. ^ Com. V. Bredin, 165 Pa. 224, 30 Atl. 254; Com. v. Poxoers, 17 Pa. Co. Ct. 304. 921; Com. v. Lehigh Valley R. Co. 165 232 CRIMINAL AND PENAL PEOCEDURB.' [chap. ix. ditional information.** "The returns of committing magistrates are made to the district attorney, that he may prepare the necessary and proper bills of indictment, to be laid before the grand jury. ISTow what are the proper bills to b© framed from the data before him ? Are they the offenses as formally or technically stated, for which he alone may indict an allied offender ? If this is so, the power of the commonwealth is greatly at fault, and the most flagrant offenders would, in many cases, go unwhipped of justice, because of a want of this needed power in the official pleader. ... If ... it appears that, though charged with a specific offense, the defendant is also charged with the commission of other crimes, which appears from the complaint of the accuser, or as sworn to at the hearing, and which are recited in the return, upon what show of reason can it be maintained that the defendant has not had a lawful hearing, or that he is not lawfully required to answer for his entire offending, or for any num- ber of crimes which are charged formally or informally against him ?"*® Substantially the same offense must be alleged, or one sim- ilar arising from the state of facts as given.^* The district attorney is vested with some discretion as to the manner and form of charging offenses in the indictment. As long as he sets out in the bill the charge for which the arrest was made and upon which the hearing was had, it will be sustained, even if the information and warrant issued thereon denominate the crime charged by a different nama*^ And he may frame two bills of indictment on one transcript. "The prac- tice of permitting additional bills has been of such long standing, and is so generally adopted, that unless tie defendant has been misled or surprised to his injury the trial judge has ample authority to permit the district attorney to send up bills without a preliminary hearing and binding over."** 180. When sustained. — The court refused to quash, where the in- formation charged selling lottery policies, and the indictment charged this in two counts, with a third alleging an offense arising out of it f where the charge was conspiracy to annoy, disgrace, and imprison, and indictment alleged conspiracy to extort money, and to imprison,*" '* Com. V. Ream, 7 Lane. L. Eev. 187, Pa. Dist. R. 596, by the same court, not 4 Del. Co. Rep. 225. followed. ""Allison, J., In Com. v. Morton, 12 '^ Com. v. Montross, 8 Pa. Super. Ct. Phila. 595, 34 Phila. Leg. Int. 438. 237. " Com. V. Frescoln, 11 Lane. L. Rev. ^ Com. v. Manderfield, 8 Phila. 457. 161. "Com. V. Wohlgemuth, 9 Phila. 582, "' Com. V. Shisslcr, 7 Pa. Dist. R. 341 . 29 Phila. Leg. Int. 364. Com. V. Hughes, 11 Pa. Co. Ct. 470, 1 § 181] MODE OF ACCUSATION. 233 where the wording of the act was not followed, hut suflBcIent informa- tion was giveiQ to the district attorney on which to base indictment;*^ where the information called the offense false pretenses, but a charge for larceny was also made;** where the information charged false pretense and embezzlement, and the indictment larceny and receiving stolen goods ;** where information charged seduction, and indictment included a count for fornication and bastardy ;** where information charged false pretenses by representing that he was good, and indict- ment charged, in addition, tlie representation that defendant had $1,800 in bank, when the evidence showed it;*® where information charged intent to cheat one, and indictment intent to cheat two;*® where charge was embezzlement, and counts for this under §§ 114, 116, and 117 of the crimes act were submitted;*^ where information charged certain facts showing the receiving of stolen goods, and the pleader charged them as a violation of the act of 1866 in buying scrap copper from minors;** where return charged conspiracy and overt acts which are offenses in themselves, and the indictment the overt act only, the latter was held good;** and likewise where the information did not contain as full and specific a statement of the offense as the indictment."" 181. When quashed. — But the court will quash where the offense is different, and did so in these cases : When charge was for conspir- acy, and indictment for arson ;°^ when information charged offer- ing of insurance rebate to A. B. and indictment to C. B. f^ when count for libel against B. was based on part of article libelling A., which was not complained of before justice;®^ when return showed false pretenses, and indictment was for this and embezzlement and conspiracy against other persons ;'* when return charged conspiracy with certain named persons to cheat and defraud at elections, and indictment charged conspiracy with unknown persons to prevent others from voting f^ when charge of embezzlement was made against "■Com. V. Frescoln, 11 Lane. L. Rev. Phila. Leg. Int. 438. 161. '" Com. V. Carson, 166 Pa. 179, 30 Atl. "Com. V. March, 1 Pa. Co. Ct. 81. 985. " Com. V. SMssler, 7 Pa. Dist. R. 341. " Com. v. Edioards, 5 Kulp, 192. "Nicholson v. Com. 96 Pa. 503, 91 "Com. v. Momingsta/r, 12 Pa. Co. Ct Pa. 390. 34, 2 Pa. Dist. R. 41. " Com. V. Lewis, 15 W. N. C. 206. " Com. v. Swallow, 8 Pa. Super. Ct. * Com. V. Meads, 14 York Legal Ree- 539. Though here cured by submission ord, 132. with leave of court. "Com. V. Leisenring, 11 Phila. 389, "Com. v. Simions, 6 Phila. 167, 23 32 Phila. Leg. Int. 160. Phila. Leg. Int. 5. Whole indictment " Barrison v. Com. 123 Pa. 508, 16 quashed. Atl. 611. ''Com. V. Hunter, 13 Pa. Co. Ct. 573, " Com. V Morton, 12 Phila. 595, 34 2 Pa. Dist. R. 707. 234 CRIMINAL AND PENAL PROCEDURE. [chap. ix. one defendant, and indictment found against two jointly;^® when enibezzieuient was charged, and indictment was for offense of mu- tilating books also, which act was not connected with the embezzle- ment ;^'' when information was for fornication and bastardy, and count for seduction was added f^ when in addition to return the in- dictment is based on information conveyed in letter from justice f^ and when information charged false pretenses, and aji indictment found for forgery in addition.®" Likewise, when the information charges criminal libel by spoken words the indictment cannot be sus- tained.®^ 182. Effect of variance. — When error is committed by joining counts for offenses not charged, it is not clear whether the whole in- dictment should be quashed, or merely the irregnilar counts. In near- ly all of the cases cited, separate indictments were found. In Com. V. Moss,^^ one count was quashed. But in Com. v. Simons,^^ the whole bill was quashed, the court saying that it was impossible to judge of the effect of the evidence introduced to support the irreg- ular charges upon the grand jury. A variance between the information upon which the warrant is- sued and the indictment is not sufficient on which to base a motion in arrest of judgment. Nor is it a valid ground upon which to base a reversal of the judgment upon appeal, where the defendant has gone to trial without raising the objection.** 183. Effect of permission of court. — A bill, or counts thereof, may be sustained even when not in conformity with the information, where such charge is presented by the district attorney with leave of court in cases of necessity, such as to prevent the bar of the statute of limi- tations,®" or where the defendant could not be prejudiced or sur- prised, such as a charge of libel against others in a part of an article other than that on which the information is based ;®® or where the transcript charged the selling of liquor on Sunday, and an additional bill was presented by leave of court alleging the sale to be without a license, although there had been no previous information or binding ^Gom. V. Schall, 9 Lane. L. Rev. 332, Shissler, 7 Pa. Dist. R. 341. 5 York Legal Record, 139. " Com. v. Fleer, 8 Del. Co. Rep. 25. "Com. V. Moister, 3 Pa. Co. Ct. 539. '^24 Pa. Co. Ct. 221. "Com. V. Moss, 24 Pa. Co. Ct. 221. "= 6 Phila. 167, 23 Phila. Leg. Int. 5. One count quashed. "' Com. v. Bradley, 16 Pa. Super. Ct. "» Com. V. Ream, 7 Lane. L. Rev. 187, 561. 4 Del. Co. R«p. 225. <" Com. v. Reynolds, 2 Kulp, 345. »° Com. V. Hughes, 11 Pa. Co. Ct. 470, ™ Com. v. Sicallow, 8 Pa. Super. Ct. 1 Pa. Dist. R. 590. But see Com. v. 539, 617. § 184] MODE OF ACCUSATION. 335 over of the defendant, as to the particular offense.*'' But unless there be some pressing necessity it will not be allowed.®* And if neither the counts be based on information, nor their presentation be specially allowed by the court, they cannot be sustained.®* 184. Based on presentments of grand jury as to matters given it in charge by the court.— The term "presentment," though usually desig- nating a finding by a grand jury on their own knowledge, is also prop- erly used to name their report made after examination of witnesses by direction of the court. ^^ In certain banldng offenses it is made the duty of the court to so order an investigation by the grand jury.^^ "Criminal courts of their own motion call the attention of grand juries to and direct the investigation of matters of general public im^ port, which, from their nature and operation in the entire commun- ity, justify such intervention. The action of the courts on such occa- sions rather bear on things than persons; the object being the sup- pression of general and public evils, affecting in their influence and operation communities rather than individuals, and, therefore, more properly the subject of general than special complaiat, — such as great riots that shake the social fabric, carrying terror and dismay among the citizens ; general public nuisances affecting the public health and comfort; multiplied and flagrant vices tending to debauch and cor- rupt the public morals, and the like. In such cases the courts may properly, in aid of inquiries directed by them, summon, swear, and send before the grand jury, such witnesses as they may deem neces- sary to a full investigation of the evils intimated, in order to enable the grand jury to present the offense and the offenders. But this course is never adopted in case of ordinary crimes, charged against individuals. Because it would involve, to a certain extent, the ex- pression of opinion by anticipation on facts subsequently to come be- fore the court for direct judgment; and because such cases present none of those urgent necessities which authorize a departure from the ordinary course of justice. In directing any of these investiga- tions, the court act under their official responsibilities, and must an- swer for any step taken, not justified by the proper exercise of a sound judicial discretion."^^ Presentments of this character, based on ""Com. V. Montross, 8 Pa. Super. Ct. 682. 237. " Act April 16, 1850, P. L. 477, § 49. ''Com. V. Hughes, 11 Pa. Co. Ct. "Kin^, J., in iSe Woj/cJ, 3 Clark (Pa.) 470, 1 Pa. Dist. R. 596. See Com. v. 188, 192. See also Re Memorial, 8 Shissler, 7 Pa. Dist. R. 341. Phila. 478, 483; Re Grand Jury, 4 '" Com. V. Miller, 14 York Legal Eec- Northampton Co. Rep. 374 ; Com. v. ord, 112. Green, 126 Pa. 531, 17 Atl. 878. ""Com. V. Hurd, 177 Pa. 481, 35 Atl. 236 CRimNAL AND PENAL PROCEDURE. [chap. ix. the knowledge of others than the jurors themselves, must be of mat- ters given the grand jury in charge by the court, even though the suggestion on which the court acted first came from that body.''* It is only in matters of great public import that the court will so direct, such as improper acts of county commissioners in the matter of public contracts,''* or repeated violations of the laws against the sale of intoxicating liquors,''^ or the frequent compounding of fel- onies,''* or jury fixing,''^ or bribery at general or special elections,''* or riots,'"* or sale of almshouse offices.^" But the court will not ex- ercise this extraordinary power upon a petition of citizens alleging that a street railway is a nuisance, since the remedies provided by law are adequate and no necessity exists for interference.** When the charge is made in a proper case, tbe court may send wit- nesses before the jury, or they may summon them for themselves. It would seem that the presentment in such cases may also be based on evidence given before them on other bills of indictment.*'* But if, where the grand jury has been directed to investigate the evil pre- sented, a specific matter is given in charge, they may not make a pre- sentment for another offense.** If the grand jury does report suffi- cient evidence to hold a particular defendant, a bill of indictment is then framed and submitted.** 185. Based on presentments of grand jury as to matters within their own knowledge. — The presentment as here used is the notice taken by the grand jury of an offense from their own knowledge or observa- tion, without a bill of indictment being laid before them at the suit of the commonwealth. It must be the act of the jury, not less than twelve concurring in it. "It is, in fact, as much a criminal accusa- " Com. V. Dietrich, 7 Pa. Super. Ct. similar petition alleging negligence of 515, 42 W. N. C. 459. supervisors in failure to repair a road, " Com. V. Hurd, 177 Pa. 481, 35 Atl. the court ordered the district attorney 682. to submit a bill, and subsequently re- '" Com. V. Wilson, 2 Chester Co. Rep. fused the motion to quash. Com v. 164. Fehr, 2 Northampton Co. Rep. 275. ™ Com. V. Eulp, 17 Pa. Co. Ct. 561, 5 '^ Com. v. Wilson, 2 Chester Co. Rep. Pa. Dist. R. 468. 164. Here illicit sale of intoxicating '"Re Cha/rge to Grand Jury, 5 Pa. liquors. This case is to be distin- Dist. R. 130. guished from Com. v. Qreen, 126 Pa. '"Bucks County Grand Jury, 24 Pa. 531, 17 Atl. 878, and Coin. v. McComb, Co. Ct. 162. 157 Pa. 611, 27 Atl. 794, which were '" Hartranft's Appeal, 85 Pa. 433, 27 presentments of matter not given in Am. Rep. 667. charge. '°Com. V. Dietrich, 7 Pa. Super. Ct. ''Com. v. Kulp, 17 Pa. Co. Ct. 561, 515, 42 W. N. C. 459. In this case the 5 Pa. Dist. R. 468. Here told to in- grand jury seems first to have suggested vestigate as to compounding of felonies, the matter to the court, who then gave and made a presentment for forgery. it to them In charge. " Com. v. Rurd, 177 Pa. 481, 35 AU. "iJe Memorial, 8 Phila. 478. In a 682. § 186] MODE OF ACCUSATION. 237 I tion as an indictment, except that it emanates from their own Imowl- edge, and not from the public accuser, and except that it wants tech- nical form. It is regarded as instructions for an indictment."*^ The oath of the grand juror requires him to make true presentment of of- fenses which are of his personal laiowledge. It is his duty under such circumstances to inform his fellow jurors, and if a reasonable belief is induced in the minds of at least twelve, that a crime has been com- mitted, the charge is reduced to writing, signed by the foreman and presented in open court.** The personal knowledge or observation of the member of the jury is the foundation of the finding. No mere hearsay evidence, or com- mon rumor, can take its place, or the testimony of others than the jur- ors themselves.*^ It capnot rest on evidence obtained from witnesses examined before them on another charge.** And in case a pre- sentment is thus improperly made, and an indictment framed there- on, it will be quashed on motion, though the reception of such evi- dence does not appear on the face of the record.** Nor is it enough that a juror notifies his fellow jurors that he heard a crime was com- mitted, if the presentment cannot be made on his testimony alone. The court will not allow witnesses to be called to determine the truth of the rumor.**^ When the presentment is made, then an indictment is drawn, and process for the arrest of the accused is granted by the court®" 186. Preferred by district attorney without previous binding over. — The district attorney may prefer an indictment before a grand jury under the supervision of the court, without a previous binding over or commitment of the accused. "This power is properly exercised where there is occasion for great haste in applying the machinery of the law, or where the exigencies of the case and the public interests may reasonably require such action to be taken."*^ "Cases can be conceived where the ends of justice would be defeated by the delay '"King, J., Be iZoycZ, 3 Clark (Pa.) 188. 878 (presentment for keeping bawdy '" Be Charge to Orand Jury, 5 Pa. house on evidence heard in assault and Dist. R. 130; Grand Jury v. Public battery ease); Gom. v. McComb, 157 Press, 4 Brewst. (Pa.) 313; Re Orand Pa. 611, 27 Atl. 794 (presentment for Jury, 4 Northampton Co. Rep. 374 ; dissuading witness from attending court Com. ex rel. Winder v. Wetiierhold, 2 on testimony of witness in prosecution Clark (Pa.) 476; Re Charge to Grand for keeping a gambling house ) . Jury, 3 Pittsb. 174 (in this case it is »» Com. v. Green, 126 Pa. 531, 17 Atl. said only cases of public nature should 878; Com. v. McComb, 157 Pa. 611, 27 be presented. No such limitation is Atl. 794. put upon their power by the other au- ''a-Re Lloyd, 3 Clark (Pa.) 188. thorities ) . °° Com. ex rel. Winder v. Wetherhold, "Com. V. Kulp, 17 Pa. Co. Ct. 561, 5 2 Clark (Pa.) 476. Pa. Dist. R. 468. " Clark, J., in Com. v. Green, 126 Pa. "« Com. V. Green, 126 Pa. 531, 17 Atl. 531, 17 Atl. 878. 338 CRIMINAL AND PENAL PEOCEDUEE. [chap. ix. and publicity of a motion in open court for leave to send up an indict- ment, and in such cases it would be the duty of the prosecuting officer to act promptly, and upon his own responsibility. • . . While, however, the possession of this exceptional power by prosecuting of- ficers cannot be denied, its employment can only be justified by some pressing and adequate necessity. When exercised without such ne- cessity it is the duty of the quarter sessions to set the officer's act aside."®^ The exercise of this power has been noticed in the fram- ing of indictments upon the returns of constables. It has been used with approval where the defendant has fled to es- cape arrest,®^ or when there is danger of his escape,^* or to prevent the running of the statute of limitations.®^ The exercise of the right has been approved where the offense was one affecting the public at large, such as an indictment based on report of county auditors charg- ing fraud by public officers in the erection of a courthouse,®* an in- dictment charging election frauds,®^ and an indictment against super- visors for neglect of duty.®* It has been allowed where the offense has not been charged in the information, but the circumstances are such that the defendant cannot be prejudiced by so doing. Thus the courts have sustained a count for libel against other parties added to the bill, though based upon another paragraph of the same article which formed the foundation of the prosecution before the magis- trate,®® a bill against the owner of a hotel after bill found against the barkeeper, where there was necessity for haste because of the ap- proach of license court, and the evidence on the first bill showed the resort to be notorious,'®® an additional indictment for selling liquor without a license, where the information merely charged a sale on Sunday,^®' and an indictment based upon a transcript on appeal from a justice for imposing a fine for selling liquor without a license un- der a borough ordinance, where there was nothing to show an abuse of discretion by the district attorney.^®^ The power has been frequently exercised where a first indictment, '" Woodward, J., in Rowcmd v. Oom. not to deprive district attorney of right 82 Pa. 405. to present bill as before. " Com. V. Shupp, 6 KvH'p, 430 ; Oom. '"Com. v. English, 11 Phila. 439, V. Delamater, 13 Pa. Co. Ct. 152, 2 Pa. 33 Phila. Ijeg. Int. 72. Dist. R. 562 ( in this there was a bind- "^ Com. v. Fehr, 2 Northampton Co. ing over, but no hearing). Rep. 275. " Com. em rel. Winder v. Wetherhold, " Com. v. Swallow, 8 Pa. Super. Ct. 2 Clark (Pa.) 476. 539. "" Com. V. Reynolds, 2 Kulp, 345. '™ Com. v. Miller, 17 Pa. Co. Ct. 333, "Com. V. Taylor, 12 Pa. Co. Ct. 326, 2 Lack. Legal News, 74. 2 Pa. Dist. R. 743. Effect of the act of ^^ Com. v. Montross, 8 Pa. Super. May 23, 1887, giving defendant the Ct. 237. ri^ht to be heard with witnesses in cer- "°" Com. v. Barnett, 10 Kulp, 372. tain cases, is here discussed and held § 1871 MODE OF ACCUSATION. 239 based on hearing and return, is quashed, or a motion to quash is made, and a second indictment is submitted to the grand jury,^*** but the consent of the court must be obtained.^"* And where the first bill is set aside for irregularity in the drawing of the grand jury, a new indictment may be submitted without a new binding over.-^"® When bills have been ignored by the grand jury, new indictments may be submitted without new information, where the necessity is press- ing and adequate.^"® In such cases there must be some allegations of irregularity, oversight, mistake, or fraud.^"^ When allowed by the court a new indictment should be submitted, as the court has no power to set aside the first finding except as to costs, nor can the court rein- state a case.^*** New indictments may also be submitted without a new binding over, where the first is lost or mislaid,^"* and it is not necessary that defendant be given notice of an intended application for leave to do so."° 187. Supervision of court.— District attorney's biUs must be on the official responsibility of that officer.^^^ In all cases the exercise of the power is subject to the supervision of the court,^^^ and it is better practice for the court to indorse its approval on the bill before submis- sion.''^^ Though this is customarily given before the bill is sub- mitted, circumstances may arise in which the district attorney may act, subject to revision by the court.''* If no circumstances of urgent necessity appear, the court will not approve, but quash the bill. Thus, where the indictment was found on a complaint discharged before a justice,"^ or was based on outside information,"® or on a constable's ^"Harrison v. Com. 123 Pa. 508, 16 ™' Boseriberger v. Com. 118 Pa. 77, 11 Atl. 611; Com. v. Clemmer, 190 Pa. Atl. 782; Com. v. Freeman, 1 Pa. Co. 202, 42 Atl. 675; Com. v. Westcott, 4 Ct. 392. C. P. Rep. 58; Com. v. Bchall, 6 York ""Com. v. Kaufman, 9 Pa. Super. Ct. Legal Record, 24; Com. v. Darner, 6 310. York Legal Record, 25; Com. v. Way- "^Com. v. Simons, 6 Phila. 167, 23 lamd, 8 Lack. Leg. News, 22; Com. v. Phila. Leg. Int. 5 (bill by private eoun- FrescoVn, 11 Lane. L. Rev. 161. sel, responsibility for which was dis- "" Com. V. Hogentogler, 6 Del. Co. claimed by the district attorney) ; Com. Rep. 49, S. C. 11 Lane. L. Rev. 395. v. Wilson, 36 Pittsb. L. J. 332. ^'^ Brown v. Com. 76 Pa. 319. A '^^ Com. v. Hogentogler, 6 Del. Co. homicide case. Rep. 49, 11 Lane. L. Rev. 395; Com. ^^ Rowand v. Com. 82 Pa. 405; Com. v. Wayland, 8 Lack. Legal News, V. Leigh, 38 Phila. Leg. Int. 184. 22. '" Com. V. Priestly, 24 Pa. Co. Ct. 543, "" Com. v. Beldham, 15 Pa. Super. 10 Pa. Diet. R. 217; Com. v. Whitaker, Ct. 33. 25 Pa. Co. Ct. 42; Com. v. Allen, 14 Pa. "* Rowand v. Com. 82 Pa. 405; Com. Co. Ct. 546 (sent back once to same v. Reynolds, 2 Kulp, 345. grand jury, but refused to send again to "' Com. v Jadwin, 1 C. P. Rep. 133. a new one). ' ^^ Com. v. Ream, 7 Lane. L. Rev. "" Com. V. Howe, 7 Lack. Leg. News, 187, 4 Del. Co. Rep. 224. A letter from 145. the justice. 240 CRIMINAIi AND PENAL PKOCEDUKE. [chap. ix. return without leave of court/ ^'^ or on an invalid return/ ^^ or on an information charging a different offense/^* or when a second bill was found while the first was pending and unquashed, without leave of court/ ^^ or when based on an invalid presentment of the grand jury/^^ the action of the district attorney was disapproved. Even if consent has been given before the bill is submitted to the grand jury, the court may revise its action after the indictment found. ^^^ 188. Review of court's action ^Where the biQ is found with the ap- proval of the court, and a motion to quash is refused, the supreme court will not review this action unless there be an abuse of discre- tion which is both manifest and flagrant.^^* If the bill be quashed, the commonwealth may appeal, and in a proper case reverse.^^* "^^ Com. V. Pfaft, 17 Pa. Co. Ct. 302, 5 Eev. 395, S. C. 6 Del. Co. Rep. 49. Pa. Dist. R. 59, 26 Pittsb. L. J. N. S. "^ Com. v. Green, 126 Pa. 531, 17 Atl. 254. 878; Com. v. McComb, 157 Pa. 611, 27 ""Coni. V. Kohle, 2 Kulp, 329; Com. Atl. 794. V. Powers, 17 Pa. Co. Ct. 304. "^ Com. v. New Bethlehem, 15 Pa. '''Com. V. Moister, 3 Pa. Co. Ct. Super. Ct. 158. 539; Com. v. Himter, 13 Pa. Co. Ct. ™ RovMtid v. Com. 82 Pa. 405. 573, 2 Pa. Dist. R. 707; Com. v. ^*Com. v. New Bethlehem, 15 Pa. Hughes, 11 Pa. Co. Ct. 470, 1 Pa. Dist. Super. Ct. 158. Here bill based on con- R. 596. See also Com. v. Lov>ry, 2 Lu- stable's return, in which a nuisance was zerne Leg. Obs. 409. charged, was quashed. Held, error, and ™ Com. T. Hogentogler, 11 Lane. L. judgment reversed. CHAPTEE X. GRAND JURY. 189. Summoning. 190. Number of grand jurors. 191. The foreman. 192. Swearing the jury. 193. Charge of court. 194. Conduct of proceedings. 195. Examination of witnesses. 196. Indorsements on bill. 197. The finding. 198. Record of finding. 199. Recommitment of bill for correction. 200. Investigation of proceedings. 201. Interference with grand jury. 189. Summoning. — As the principles governing tJie selection, sum- moning, and challenging of the grand jury are similar to those eon- trolling the petit jury, it has been thought better, to avoid repetition, that the two be considered together.-' The clerk of the court of oyer and tenniner and quarter sessions is- sues a venire for the summoning of the grand jury, upon the order or precept of the judge.^ This is done for each of the terms, which must be at least four per year,'"* though in case of emergencies the ' See Juries, chapter xvrti., post. summon the persons, whose names shall 'Act April 14, 1834, P. L. 333, § 108. be so drawn, and every of them, to come The form of the venire is fixed by the before our said court, at the said time 109th section of the act, as follows: and place, to inquire of and perform all County V. The Commonwealth of those things which on our part shall be Pennsylvania. To the Sheriff and Com- enjoined UTK)n them; and that you, the missioners of the said County, Greet- said sheriff, have then and there this ing: We command you, a^-d every of you writ, and the names and surnames of that in your proper person you draw the persons so summoned, with their from the wheel (or from the proper additions respectively, in a panel here- wheel, if there be several), containing to annexed, and otherwise make return, the names of the persons selected for at the day and place aforesaid, how jurors according to law, the names of you shall have executed this writ. For twenty-four persons to be grand jurors Philadelphia county, see act March 13, in our — court of — (describing the 1867, P. L. 420, § 2, act March 31, 1834, court) to be holden at — in and for the P. L. 127, § 6; Schuylkill county, act said county on the — day of — at — April 17, 1846, P. L. 359, § S. o'clock in the — noon of that day: And "Act April 14, 1834, P. L. 352, § 58. further. That you, the said sheriff, do Pa. Crim. Proc. — 16. 241 848 CRIMINAL AND PENAL PROCEDURE. [chap. x. number may be increased,* or sessions adjourned,' or special courts be called;* or at any term or session the court may direct the con- tinuance at the following term or session one or more weeks, or con- tinue any term for another week or weeks without the issuing of a new venire.'' When necessary, the grand jury may be summoned to meet prior to term time,* at such date as the court may deem proper.* "If, in the opinion of the said judges, the business of the said courts at any time shall require it, the grand jury may be detained for an additional week without the issuing of a new venire, and the attend- ance of prosecutors and witnesses may be enforced during such ad- ditional week by all proper orders and process."^" Under this legisla- tion the court may adjourn until the following week for the accom- modation of counsel engaged in the supreme court, and the actual bodily presence of the jurors at the time the order is made is not necessary, since the service of process upon the persons drawn gives the court jurisdiction over them. Nor is the failure of the clerk to record the order of the court a ground to quash, for the evidence-of it can be supplied by an order nunc pro tunc}^ The courts may order the fixing of regular terms. Such order, or modifications thereof, are to be published in two newspapers of the county for thirty days prior to the time fixed for the taking effect of the order. ^^ And if the jurors in attendance are inadequate, tales- men may be summoned.^^ 190. Number of grand jurors. — The number directed to be sum- moned is twenty-four, and there is no statutory direction as to the number who shall be sworn. It was a well-established common-law principle that but twenty-three should be sworn, so that twelve may be a majority,^* and such has been recognized by the courts of Penn- sylvania. A bill of indictment will be quashed where more than twenty-three are sworn, or where the twenty-fourth juror is not sworn, * Act April 14, 1834, P. L. 352, § 59 ; tions. The mere fact that the day fixed for Philadelphia county, act March 13, was that of the opening of adjourneJ 1867, § 1, P. L. 420. sessions is immaterial. 'Act April 22, 1850, P. L. 545, § 12; "Act March 18, 1875, P. L. 28, § 2. for Lancaster county, act March 30, " Traviss v. Com. 106 Pa. 597. 1852, P. L. 208, § 4; Schuylkill county, "Act March 18, 1875, P. L. 28, § 1; act April 10, 1848, P. L. 469. re-enacted by act Aug. 7, 1883, P. L. 323, " Act April 4, 1843, P. L. 133, § 8. § 10. For effect of this provision where 'Act June 10, 1881, P. L. 113, § 1. grand jury is directed to meet before 'Act March 18, 1875, P. L. 28, § 2. the regular term, see Com. v. Smith, 4 'Com. V. Smith, 4 Pa. Super. Ct. 1, Pa. Super. Ct. 1, 14 Lane. L. Rev. 159. 14 Lane. L. Rev. 159. Here two months " Com. v. Morton, 12 Phila. 595, 34 before to pass on indictments, and pre- Phila. Leg. Int. 438. vent the bar of the statute of limita- " 4 Bl. Com. 302. §§ 191, 193] GRAND JURY. 843 but aids in the deliberations of the jury.^" It is too late to raise this objection after a plea and trial on the merits.** 191. The foreman. — A foreman of the grand jury is appointed by the court, who acts as the head of that body. If the person so chosen becomes unable to act, by reason of sickness, or otherwise, the court may appoint a foreman pro tempore, who may act with like powers.'''' The fact that no record of the appointment of the foreman has been made, is no ground for quashing the indictment. The court may permit the same to be entered on its minutes, even after trial and conviction, where it was actually done.** 192, Swearing the jury. — The jurors are either sworn or affirmed by the clerk of the court. Though the practice in some courts, it. is not necessary that the foreman be sworn separately.*® The form of oath is of ancient origin, and is preserved at least in substance.^" In part, the qualification is "that you will diligently inquire and true presentment make of such articles, matters, and things as shall be given you in charge, or otherwise come to your knowledge in the present service. That the commonwealth's counsel, your fellows', and your own, you will keep secret. That you will present no one from any hatred or malice, neither will you leave any one unpresented for fear, favor, affection, hope of reward or gain, but will present all things truly, as they come to your knowledge, according to the best of your understanding."^* If the bill of indictment say that the jurors were "sworn and af- firmed," it will not be defective, since the reasonable interpretation of the phrase is that some were sworn, and some were affirmed,^^ or where the phrase "oaths and affirmations" is used, but the word "respectfully" is erroneously used for "respectively."^* Such defects cannot be taken advantage of in any case after the entry of a plea, and a trial upon the merits.^* The same principle controls in such case as is applicable to the petit jury. Thus, where the record shows that the latter "were all "Com. V. Salter, 2 Pearson (Pa.) ^ Com. v. Ferguson, 8 Pa. Dist. R. 461; Com. v. Leisenrmg, 2 Pearson 120. (Pa.) 466. "Com. v. Ferguson, 8 Pa. Dist. R. ^'Com. V. Dietrioh, 7 Pa. Super. Ct. 120. 515, 42 W. N. C. 459. In this case a pre- ^ Oath of Grand Juror, 29 Pittsb. L. sentment was made by a jury of twenty- J. 385. four, followed by a bill of indictment the " Charge to Grand Jury, 3 Pittsb. next term by a jury properly consti- 174. tuted. There is a query in Uiis case '^ Com. v. English, 11 Phila. 439, 33 whether twenty-four may not act. Phila. Leg. Int. 72. " Com. V. Noonan, 15 Phila. 372, 38 ^' Com. v. Jackson, 1 Grant Gas. 262. Phila. Leg. Int. 184. "Com. v. Jackson, 1 Grant Gas. 262. 244 CRIMINAL AND PENAL PROCEDURE. [chap. x. sworn or affirmed respectively to try, etc.," the presumption, is that they were properly sworn or affirmed, especially where no exceptions to the mode of qualification were taken at the time, and nothing on the record indicates any irregularity.^' 193. Charge of court. — It is the duty of the court to instruct the grand jury as to its powers and duties. As has been noticed, it may, when occasion requires, call their attention to matters for inves- tigation. When the jurors deem it necessary, they have the right to ask further instruction from the court, coming into the courtroom for that purpose.^® 194. Conduct of proceedings. — The district attorney is the legal ad- viser of the grand jury, and prepares the bills of indictment on which it is called to pass. It is his duty to bring before it each case as it arises, and see that the proper witnesses are forthcoming, and, if nec- essary, open the case, commence and superintend the examination of witnesses, and give instruction on all questions of law.^'' It is his duty, as well as his privilege, so to do.** He has the right to be pres- ent during the deliberations of the jury, after the evidence has been heard, and this, without proof of interference on his part, is not ground for quashing.** But he cannot order the withdrawal of a juror during the hearing of a particular case,"* or attempt to influ- ence their decision.*^ Private counsel have no right to be present, and if they are present the indictment will be quashed.^* Nor can a paper prepared by such person, containing the points on which the va- rious witnesses shall be examined, be sent to the foreman of the grand jury, where such paper suggests the effect to be given to the testi- mony, or is calculated to control their deliberations.^^"* The defend- ant has no right to appear before this body, nor is it ground to quash the indictment that the prisoner was brought handcuffed into the courtroom in the presence of the grand jury.*^ One witness may be present at one time, but cannot remain during the examination of another. If this is allowed, the indictment will be quashed on mo- tion.^* "Cathcart v. Com. 37 Pa. 108. "Com. v. Bradney, 126 Pa. 199, 17 " Charge to Grand Jwry, 3 Pittsb. 174. Atl. 600. " Charge to Grand Jury, 3 Pittsb. " Charge to Grand Jury, 3 Pittsb. 174 ; 174. Com. V. Twitchell, 1 Brewst. (Pa.) 551. ^Com. V. Bradney, 126 Pa. 199, 17 "Com. v. Donoart, 7 Lane. Bar, 121. Atl. 600. »'-* Com. V. Frey, 11 Pa. Co. Ct. 523, 1 '° Com. V. Bradney, 126 Pa. 199, 17 Pa. Dist. R. 175, 9 Lane. L. Rev. 323, 3 Atl. 600; Com. v. Salter, 2 Pearson Northampton Co. Rep. 153. (Pa.) 461; Com. v. Twitchell, 1 Brewst. '^ Com. v. Weher, 167 Pa. 153, 31 Atl. (Pa.) 551; Charge to Grand Jury, 3 481. Pittsb. 174. ''Com. v. Dorwart, 7 Lane. Bar, 121. § 195] GRAND JURY. 245 195. Examination of witnesses. — The bill is the formal accusation on the part of the commonwealth. No right exists on the part of the defendant to be heard either by himself, or his witnesses.*'' By the act of 1887** it is expressly provided that such shall not be dones. Witnesses for the commonwealth are heard. The foreman of the grajid jury, or any member thereof, may administer the requisite oath or affirmation to any witness whose name may be marked on the bill of indictment by the district attorney.*" Formerly, the witness was sworn in open court and sent to the grand jury for examination. Though the person testifying must be duly qualified, it will be pre- sumed that such was the case.** The attendance of those needed is obtained by the issuance and service of a subpoena, a failure to obey which subjects the offender to attachment.*^ Only those individuals whose names have been indorsed on the bill by the district attorney can be sworn. If others are examined, and their names then added by the jurors, it is improper, and the bill will be quashed on motion.*^ But objection to such procedure must be made by a motion to quash, and is not pleadable in bar.** And the indictment will not be quashed where by reason of a clerical error the name of the witness examined is incorrectly indorsed on the bill. Thus, where the name Frank N. Cuson was written by mistake for Frank Mason.** Incompetent witnesses are not to be heard. Thus, it would be ground to quash, if it were made to appear to the court that a wife testified generally against her husband; but in adultery, where she may prove marriagei, it will be presumed, in the absence of evidence to the contrary, that she was confined to such testimony.*® But if it appear that the husband was the only witness, both before the justice and the grand jury, to a charge against the wife, the indictment will be quashed on motion.*" Such rule would not apply where the par- ties had been divorced prior to the commission of the crime.*^ Even if the proof was improper, it is too late to object after the entry of " Respullica v. Shaffer, 1 Dall. (Pa.) Kulp, 289; Gom. v. Schall, 9 Lane. L. 236. Rev. 332, 5 York Legal Record, 139; ''May 23, P. L. 158, § 1. Com. v. FresooVn, 11 Lane. L. Rev. 161; "Act March 31, 1860, P. L. 427, § 10. Gom. v. Wilson, 9 Pa. Co. Ct. 24, 6 "Gom. v. Salter, 2 Pearson (Pa.) Kulp, 40. 461. "Jillard v. Com. 26 Pa. 169. " Hartranft's Case, 85 Pa. 442, 27 " Com. v. Beldham, 15 Pa. Super. Ct. Am. Dee. 667. In which it was said 33. the subpoena must state a definite " Com. v. Hosier, 135 Pa. 221, 19 Atl. charge in which the evidence is to be 943. given. This was a general investiga- " Com. v. Woodoroft, 17 Pa. Co. Ct. tion by the grand jury into riot cases. 554. " Com. V. Price, 3 Pa. Co. Ct. 175, 4 " Com. v. Leisy, 25 Pa. Co. Ct. 593. 246 CRIMINAL AND PENAL PROCEDURE. [chap. x. a plea, and the trial and conviction upon competent evidence** The district attorneys cannot compel the defendant to appear and criminate himself, nor to furnish evidence with which this can be done. So, he cannot oblige the attorney of the defendant to produce papers to be used against his client** Though the jury need examine only so many witnesses on the part of the commonwealth as to satisfy them, yet they cannot ignore the bill presented, until all whose names appear upon the indictment are heard.**^ 196. Indorsements on bill. — The bill must be signed by the district attorney, but if found without this being done, the court will allow it to be amended by adding the name.®^ If a special district attor- ney be appointed for the conduct of a particular case by virtue of the act of 1566,''^ the bill signed and submitted by him is valid and sufficient to support a conviction.*' When the indictment is of the class known as a district attorney's bill, sent in with leave of court, without preliminary hearing, it has been said to be the better practice for the court to indorse its approval thereon before sending in, but, if not, it may be corrected by entering an order to that effect subse- quently.®* As has been noticed, the names of the witnesses must be indorsed on the indictment. "No person shall be required to answer to any indictment for any offense whatsoever, unless the prosecutor's name, if there be any, is indorsed thereon, and if no person shall avow himself the prosecutor, the court may hear witnesses, and determine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be indorsed on such indict- ment.^® This section was taken from a clause of the act of 1705,^® under which legislation it was held no indorsement was necessary where no person was active in carrying on the prosecution.®'' The indorsement of the name is not conclusive, and the petit jury in im- posing costs may designate the actual prosecutor.''* The indictment is defective where the name of the prosecutor, if there be one, does *' Com. V. Spattenhover, 8 Luzerne " Com. v. Beldham,, 15 Pa. Super. Ct. Leg. Reg. 101. 33. "Com. V. Moyer, 11 W. N. C. 34. "Act March 31, 1860, P. L. 427, § "° Com,. V. Ditssler, 1 Lane. Bar, No. 13. 27. "^Oom. V. Lennoso, 3 Brewst. (Pa.) "1 Smith's Laws, 56. 249; Com. v. Mullalley, 3 Law Times, "King v. Lulsens, 1 Dall. (Pa.) 5. N. S. 126. ■» Com. v. Ream, 1 Pa. Co. Ct. 33 ; "March 12, P. L. 85, § 1. Com. v. Jackson, 1 Pa. Co. Ct. 38; and " Com. V. MoHale, 97 Pa. 397, 39 Am. see power of jury over costs, diapter Rep. 808. XXVI., post. §§ 197, 198J GRAND JURY. 247 not appear,^® though the name may be added by order of court, after bill found.*" But where based on a constable's return in the dis- charge of his official duty, it is not required that the name of the prosecutor be indorsed thereon.®^ Such finding as the jury may make must be indorsed thereon. If marked "ignored," by mistake, it may be corrected.*^ The fact that the words "true bill" are printed is no ground for arresting judg- ment,**^ and the omission of the word "true" is amendable.** The indorsement must contain the date on which it is made,'® and the foreman must sign.** But it is sufficient if the foreman pro tem- pore does so.*^ The omission of the word "foreman" after the sig- nature is not fatal, but can be amended.** 197. The finding. — The indictment is either ignored or found to be a true bill. If the former, the power exists to dispose of the costs.*® Certain counts of the bill may be ignored, while others are found to be true. But there is no power in the grand jury to find a portion of one count to be time, and to ignore another portion. '''* When a find- ing has been made, the bill is brought into court, usually by the fore- man. It has been held, however, that it is no ground to quash that the bill was returned by a messenger, and not by the whole jury, the foreman, or a member thereof.''* 198. Becord of finding. — "In our practice the grand jury return their bills to the court, whose clerk notes on the court's minutes the title of each bill, and the finding, 'ignoramus' or 'true bill,' as the case may b& This is the recording of the finding. The body of the indictment is never recorded, and however well it might be in some instances to have a record copy to supply what sometimes happens, — a loss of the bill from the files, — or to detect an interlineation or other '" Com. V. Schall, 9 Lane. L. Rev. 332, " Bporlcs v. Com. 9 Pa. 354. 5 York Legal Record, 139. " Com. v. Bchall, 9 Lane. L. Rev. 332, "Com. V. Bovnianek, 12 Pa. Super. 5 York Legal Record, 139. Ct. 86 J Com. V. Shissler, 7 Pa. Diat. R. "Com. v. Ditzler, 1 Lane. Bar, No. 341. 13; Com. v. Dieffenbaugh, 3 Pa. Co. Ct. "Com. V. New Bethlehem, 15 Pa. 299. Super. Ct. 158; see King v. Lukens, 1 "Com. v. Noonam, 15 Phila. 372, 38 Dall. (Pa.) 5. Phila. Leg. Int. 184, 13 Lane. Bar, 20. "" Com. V. Haag, 10 Lane. L. Rev. ™ Com. v. Ferguson, 8 Pa. Dist. R. 265. The next day the jury announced 120. to the court the mistake, and substi- " See Costs, chapter xxvi., post. tuted the words "true bill." " Com. v. Oressly, I York Legal Ree- " Turner v. Com. 86 Pa. 54, 27 Am. ord, 71, 12 Lane. Bar, 52; Com. v. Rep. 683 (28th assignment oif error); Keenan, 67 Pa. 203; Bemoood v. Com. Com. V. Usner, 7 Lane. L. Rev. 57 52 Pa. 424. (though the practice of printing this on ^^Com. v. Baiter, 2 Pearson (Pa.) the back of the bill is condemned). 461. 248 CRIMINAL AND PENAL PROCEDURE. [chap. 3^ tampering with the bill, yet there is no rule of practice that demands it, and the want of it, even in a capital case, is no ground of error."''^ 199. Eecommitment of bill for correction. — Bills may be recommit- ted to correct certain defects which are not of substance. Thus, where a juror was improperly withdrawn by direction of the district attorney, it was held proper to send it back for action by all of the members. ''* And under certain circumstances when the bill has been ignored through oversight or mistake.'''* But where the defect is one of substance this cannot be done.'''' 200. Investigation of proceedings. — Improper conduct on the part of district attorney or grand jurors may be ground for setting aside their finding. In proving these acts, the grand juror cannot testify as to his own counsels or those of his fellow jurors, or to any other matters which he was sworn to keep secret. He cannot impeach his own finding by showing that he did not concur, or that he agreed only because the district attorney insisted on it.''* Nor are the district at- torney's statements admissible in support of such a motion.''^ But he may testify as to the nature of the issue or question under investi- gation, and to the fact that the jury acted upon the testimony of wit- nesses, and not upon their own knowledge or observation in making a presentment.''® He is competent to prove who the real prosecutor was in an action for malicious prosecution,''* and may contradict a witness upon the trial before the petit jury, who swore differently be- fore the grand jurj'.®" Depositions taken to show misconduct of a grand juror on a mo- tion in arrest of judgment do not constitute part of the record, and will not be considered by the appellate court.*' 201. Interference with grand jury. — Grand juries are an arm of the court, and any wilful disturbance of them in the performance of their duties is punishable. One who writes a letter to the grand jury to influence them in their actions iS responsible criminally,*^ or one "Hopkms V. Com. 50 Pa. 9, 88 Am. "Com. v. TvAtchell, 1 Brewst. (Pa.) Dec. 518. Here minutes contained title 551. of the bill, with number and term, and ™ Com. v. Green, 126 Pa. 531, 17 the entry "true bill." Atl. 878; Com. v. McGomb, 157 Pa. ''Com. V. Bradney, 126 Pa. 199, 17 611, 27 Atl. 794; Com. v. Kul-p, 17 Pa. Atl. 600. Co. Ct. 561, 5 Pa. Dist. R. 468. " See district attorney's bills, § 186. ™ Huidehoper v. Cotton, 3 Watts, 56. '"Com. V. Kaas, 3 Brewst. (Pa.) «> eordon v. Com. 92 Pa. 216, 37 Am. 422. Here in charge of burglary, leave Rep. 672. to recommit was asked to add the words " Com. v. Craig, 19 Pa. Super. Ct. 81. "in the night time." Refused. "" Com. ex rel. Jack v. Crans, 2 Clark '"Com. V. Twitchell, 1 Brewst. (Pa.) (Pa.) 172. 551; Ziegler v. Com. 22 W. N. 0. Ill, 12 Cent. Rep. 497, 14 Atl. 237. § 201] GRAND JURY. 249 who talks -with members concerning cases before them.®* A juror may himself be presented by the rest of the juiy for improper con- duct before them.** "Doom's Case, 17 Pa. Co. Ct 521, 5 " Pennsyhimiia v. Keffer, Addison Pa. Dist. R. 211. (Pa.) 290. For druukenuesB. Cn.\PTEE XL THE INDICTMENT. 202. The caption. 203. The commencement. 204. Laying time. 205. As to the statute of limitations. 206. Laying venue. 207. Names. 208. Titles and residence. 209. Description of property. 210. Description of writings. 211. Statement of the offense. 212. Certainty and sufficiency in statutory offenses. 213. Negativing exceptions in a statute. 214. Meaning and use of words. 215. Use of the videlicet or scilicet. 216. Surplusage and repugnancy. 217. Duplicity. 218. Where second offense not well charged. 219. Where statute provides for distinct acts. 220. Where several acts done at one time. 221. Matters of aggravation. 222. Words of description. 223. How taken advantage of. 224. Conclusion. 225. Reference from one count to another. 226. Joinder of counts; different offenses. 227. Joinder of counts; cognate offenses. 228. Included offenses. 229. Election. 230. Joinder of parties. 231. Effect of misjoinder. 232. Joint and separate trials. 202. The caption. — The caption is a preamble to the indictment, and originated in the English practice of removing an indictment from an inferior to a superior court for trial. It furnished to the higher court information as to the proceedings which had been taken, and was rather a transcript of material appearing in the record." Since the reasons for a full statement have ceased to exist, the record * Pennsylvania v. Bell, Addison ( Pa. ) 156, 179, 1 Am. Deo. 298. 250 § 8081 THE INDICTMENT. 251 supplying it, the same fullness of detail, as required at common law, is dispensed with. It is no longer necessary to set forth the names of the jurors who acted, or the names of the judges presiding below.'^ In Pennsylvania it customarily includes a title or description O'f the court in which the indictment is foimd, term and time of the hold- ing of the court, and the name of the county for which the grand jury is inquiring. Being a mere transcript of the record, it is strictly no part of the indictment, and a failure to give a full statement is amendable, the record itself supplying the required information.* So, the indict- ment is amendable when the title of the court is given as "oyer and terminer and general jail delivery," the words "court of" being omit- ted ;* or as "quarter sessions of the peace for the city and county of Philadelphia ;"® or the words "of the peace" are omitted after "court of quarter sessions;"® or the words "general jail delivery" after "court of oyer and terminer."^ So, where an indictment is found in the quarter sessions, though purporting to be in the oyer and ter- miner, and the trial takes place in the latter, tbe record may be amended after trial, conviction, sentence, and writ of error, so as to name the proper court, and be then certified nunc pro tunc into the oyer and terminer.* The caption may be likewise amended as to term and time, and error in this respect would be no ground to arrest the judgment Thus, where the caption described the indictment for an offense coim- mitted in July as found "April sessions, 1848," whereas, in fact it was returned in August sessions, 1848, the mistake may be cor- rected by amendment.^ Nor will the omission of the words and figures designating the term vitiate the bill, since it is a mere formal defect which is amendable.*" 203. The commencement. — The commencement of the indictment is the formal opening thereof, in which it is made to appear that the ' Peimsylvama V. Bell, Aidisoa (Pa.) Com. v. Buane, 1 C. P. Rep. 41; but 156, 1 Am. Dec. 298; Com. v. Shaffner, see contra, Com. v. Mackin, 9 Phila. 2 Pearson (Pa.) 450. 593, 29 Phila. Leg. Int. 85. 'Pennsylvania v. Bell, Addison (Pa.) ^Turner v. Com. 86 Pa. 54, 27 Am. 156, 1 Am. Dec. 298. Rep. 683. The words do not seem to 'Com. V. Shaifner, 2 Pearson (Pa.) have any legal significance. 450. 'Brovm v. Com. 78 Pa. 122. Here 'Com. V. MovM, 14 Phila. 366, 37 the venire had summoned grand jurors Phila. Leg. Int. 254. The boundaries for the quarter sessions only, of the city and county are coincident, 'Com. v. Bechtol, 4 Clark (Pa.) 306. and the word "city" may be treated as " Com. v. Miller, 14 York Legal Rec- Eurplusage. ord, 112. " Com. V. Burgin, 5 Legal Gaz. 258 ; 258 CRIMINAL AND PENAL PROCEDURE. [chap. xi. proper body, duly qualified, has acted, upon the charge set forth." It should appear that the grand jury was in the county for which it was acting, but if the words used are merely "inquiring for the body of the county," it will be presumed, after trial, that they were per- forming their duties within the county when the bill was found.-'* The commencement should also show that it was the inquest of the commonwealth.^* A due qualification of the jurors must be set forth. It is no ground to quash that the words "oaths and afiirmations" are used, since the reasonable interpretation of that phrase is that some were sworn and some were affirmed;^* or the words "oaths and affirmations, respect- fully," for "oaths and affirmations, respectively."^" If the qualifica- tion appears in the first count, the succeeding counts need only refer to it by appropriate words without a repetition. In case the first is quashed, the subsequent ones will not be made defective on this ac- count^® 204. laying time. — It is essential that the time of the alleged com- mission of the offense be set forth, so that it may be determined whether the statute of limitations has barred the prosecution. In the laying of time, any date may be fixed within the statutory period, and the averment will be supported by proof that the offense occurred at another date within that time, unless time is an element of the crime charged, as in violation of Sunday laws.^^ But the time must be prior to the finding of the indictment,-'* and some specific date must be given. It must not be laid in blank,^* and it would seem that it should be written out, and not stat,ed in figures, though such objection will not be considered after trial.*" Accuracy is requi- site, but the indictment is not defective where the words "first March" are used in place of "first day of March."*^ So long as the date can be ascertained, whether directly given or " The form in use is "The grand in- " Com. v. Jackson, 1 Grant Cas. 262. quest of the commonwealth of Pennsyl- ^ Respuhlica v. Tryer, 3 Yeates, 4.il. vania, inquiring in and for the county " Com. v. Bennett, 1 Pittsb. 261 ; of upon their respective oaths or Com. v. Major, 198 Pa. 290, 47 Atl. afiSrmations do present." 741 ; Com. v. Burk, 2 Pa. Co. Ct. 12, S. ''Com. V. Jackson, 1 Grant Cas. 262. C. 3 Lane. L. Rev. 138. " Respublicoi v. Honeyman, 2 Dall. " Pennsylvania v. McKee, Addison (Pa.) 228. A failure to do so was one (Pa.) 33 (here offense laid three of two grounds for arresting judgment months after the finding of the bill, and in this case. The judgment was re- two weeks after trial. Judgment was versed, but it would stem on the other arrested) ; Com. v. Major, 198 Pa. 290, ground, which the attorney general ad- 47 Atl. 741. mitted to he well taken. No opinion is '" Com. v. Cronin, 16 Phila. 500, 41 filed. Phila. Leg. Int. 145, 1 Lane. L. Rev. 156. "Com. V. English, 11 Phila. 439, 33 "Com. v. Jackson, 1 Grant Cas. 262. Phila. Leg. Int. 72. " Simmons v. Com. 1 Rawle, 142. § 205] THE INDICTMENT. 258 designated by reference to other parts of the indictment, it is suffi- cient. Thus, where the caption states the finding to be in "December sessions, 1818," the laying of time in the indictment on "the 12th day of August in the year aforesaid" is enough.^* Likewise, an in- dictment for fraudulent insolvency is sufficient where the time of committing the fraud is not given, but the date of the making of the false oath and schedule appears, which is connected by the words "then and there;"** or when an indictment for perjury fixes date, and proceeds to designate the court before which the offense was com- mitted, using the words "then and there" being held;** or, even if these words are not used, if the material fact is in any way so con- nected with the time and place laid elsewhere that certainty is se- cured.*^ Where a day and place are named in the beginning, they need not be repeated, but all ensuing acts may be referred to that stated.** So, the reference may be in one count to a preceding count, and the subsequent one will not be made defective by the quashing of the first.*^ 205. As to the statute of limitations.— Where it appears on the face of the indictment that the statute of limitations has barred the prose- cution, the indictment will be quashed. It is not an amendable de- fect*® The appellate court will reverse for a failure to do so under such circumstances.*" If the indictment charge the offense on a day barred, it must allege the facts and circumstances which prevent the application of the statutory bar.*" The exception pleaded must be that provided in the statute. An agreement to furnish support by the defendant in a fornication and bastardy case, which has not been complied with, is not such.^^ Though the proper practice is to give the correct time of the com- mission of the offense, with the facts which prevent the operation of the statute, yet a date may be laid within the statutory period, and on trial the correct one proved with the facts which bring it within the "Jacobs V. Com. 5 Serg. & R. 315. "Com. v. Werner, 5 Pa. Super. Ct "RespubUca v. Tryer, 3 Yeates, 451. 249, 41 W. N. 0. 48; Com. v. Bartilson, "Com. V. Williams, 149 Pa. 54, 24 85 Pa. 482. Atl. 158. ^ Rosenberger v. Com. 118 Pa. 77, 11 ''Com. V. Youlls, 5 Kulp, 231. Here Atl. 782; Com. v. Bates, 1 Pa. Super, indictment for refusal to i-eceive vote of Ct. 223, 12 Montg. Co. L. Rep. 41 qualified elector on date of election, (here time laid more than two years ■which was given, but did not state that before, but does not appear by the re- the elector was qualified on that date, port whether facts making an excep- ^ Stout V. Com. 11 Serg. & R. 177. tion were pleaded. Conviction was sus- " Com. V. Kaas, 3 Brewst. (Pa.) 422; tained). Respuilica v. Tryer, 3 Yeates, 451. " Com. v. Werner, 5 Pa. Super. Ct. ^Com. V. Owens, 3 Kulp, 230; Com. 249., 41 W. N. C. 48. V. Seymour, 2 Brewst. (Pa.) 567. 864 CRIMINAL AND PENAL PROCEDURE. [chap. xi. exocption.'^ Where the exception is pleaded in only one count, it is enough, even though that count be quashed.** 206. Laying venue. — It is necessary that the place of the commis- sion of the crime charged be laid, so that the jurisdiction of the court may appear. The same principles are applicable as in the laying of time. Having once been stated, there is no necessity for repetition, but by the use of proper words the subsequent statements may be con- nected,'* and it is immaterial that the statement referred to appears in a count subsequently quashed.*® Even where the place is incorrectly stated, if the evidence shows the offense to have been committed within the jurisdiction of the court, the variance will not be fatal. Thus, where, in fornication and bastardy proceedings in county A, the child is alleged to have been begotten in that county, whereas it was in another, the error is imma- terial when the child was bom in county A, for in such case, by act of assembly, the court of the county where the child is born has ju- risdiction of both offenses.*^ Where the indictment does not allege the offense to have been com- mitted within the county, but does charge it within the jurisdiction of the court, it is sufficient.*'^ But if the crime is such within a mu- nicipal division of the county alone, the indictment will be defective, if it charges the act merely within the county. It must name the particular part of it within which the act was done.** 207. Names. — An indictment must name the defendant whom it is intended to charge with the offense alleged, and an omission in this regard will render the indictment bad. This rule is subject to the qualification that if the name is unknown that fact may be stated.*^ The defendant may be called by the name by which he is usually known. Thus, it is sufficient if a foreigner be indicted under the " Blackman v. Com. 124 Pa. 578, 17 it was made an offense to sell liquor in Atl. 194 J Com. V. Blackburn, 3 Pa. Co. Derry township, Westmoreland county, Ct. 464. by special act. The indictment charged " Rosenberger v. Com. 118 Pa. 77, 11 the offense within the county merely. Atl. 782. Conviction reversed) ; Com. v. Keenan, "Com. V. Williams, 149 Pa. 54, 24 10 Phila. 194, 30 Phila. Leg. Int. 416 Atl. 158; Stout v. Com. 11 Serg. & R. (indictment for selling liquor contrary 177. to the local option law of the 22d ward "Com. V. Kans, 3 Brewst. (Pa.) 422. of Philadelphia). " Heikes v. Com. 26 Pa. 513. "" This question has not been raised " Com. V. Leigh, 15 Phila. 376, 38 in Pennsylvania where the defendant is Phila. Leg. Int. 184. Such a defect is unknown, but it has been where the formal and amendable. names of third parties are unknown. "Seifried v. Com. 101 Pa. 200 (here Com. v. Kaas, 3 Brewst. (Pa.) 422. § 207] THE INDICTMENT. 256 English equivalent of the foreign words, to which he has assented.*** His Christian name should be given.*^ Names of others than defendants must also be given,*^ and lie same rules as to accuracy apply. If the name of the principal, in an indictment of an accessory, or of third persons, is unknown, this must be stated.** Property may be laid as belonging to one having the possession, but not the title.** In either case it will be sufficient if the names are idem sonans, but, if not, the defect is fatal. Thus, Sensenderf is not the same sound as Sensenderfer,*^ Brison not the same as Prison,*" or Burrill not the same as Burrall.*^ If property be described as that of a corporation, the corporate name must be given;** but if the association is unincorporated, the property may be laid either in the trustees or the association. If the latter is done, an omission of a part of the name will not be fatal, but can be amended.** Statutory provision has been made where the indictment charges a fraud on partners. "With regard to frauds committed against partners and joint own- ers, it shall be sufficient in any indictment for any felony or misde- meanor committed with intent to defraud any partners or joint own- ers, to allege that the act was comnaitted with intent to defraud any one or more of the partners or joint owners named in the indictment and other persons being partners or joint owners with him or them, without stating any of the names of such other persons."^" Accuracy is likewise required in the description of a court in which perjury was committed.'^ The indictment of defendants, designated as the burgesses and eouncihnen, charges them in their official capacity, and not as indi- viduals,'^ but the charging of five men with an offense, and referring to them as ''being the board of school directors," will not be ground for arresting judgment, where there were six, one having been ap- " Alexander v. Com. 105 Pa. 1. Name "Com. v. Gillespie, 7. Serg. & R. 469, Sabato Alessandro, indicted as Sabato 10 Am. Dec. 475. Alexander. " Com. v. Demuth, 12 Serg. & R. 389. "■Com. V. Demaiin, Brightly (Pa.) Must not indict the members as individ- 441. uals. " Com. y. Graham, 1 Pa. Co. Ct. 282, " Com. v. Vofo, 14 W. N. C. 289. S. C. 3 Kulp, 289. False pretenses. Word "independent" omitted. "Com. V. Eaas, 3 Brewst. (Pa.) "March 31, 1860, P. L. 427, § 15. 422; Com. v. Bechtol, 4 Clark (Pa.) '^ Com. v. Cronim, 16 Phila. 500, 41 306. Phila. Leg. Int. 145, 1 Lane. L. Rev. "Com. V. Bowers, 3 Brewst. (Pa.) 156. Here court of Philadelphia 350. called merely the court of common "Com. V. Bowers, 3 Brewst. (Pa.) pleas, when there were four such courts. 350. Name of owner of goods. '"' Com. v. Bredin, 165 Pa. 224, 30 Atl. " PeJMisylvamia v. Huffm^m, Addison 921. (Pa.) 140. 266 CRIMINAL AND PENAL PROCEDURE. [chap. xi. pointed after the commission of the act complained of, the words "members of" being omitted."' Officers indicted for official miscon- duct should be designated as such,°* and where the charge is interfer- ing with such a person, or his assistant, his official position must be set forth.5' Advantage of misnomer must be taken by a plea in abatement,*** and an isstie may be framed and trial had to determine the ques- tion.^'' After the plea in abatement is entered, the court may allow an amendment to cure the misnomer.'* 208. Titles and residence. — By act of 1 Hen. V., chap. 5,"® it is pro- vided that in indictments "additions shall be made of their estate, mystery, and degree." The omission, where required, is ground for a motion to quash,*" or demurrer.** But it has been said in a more recent case, that tlie statute referred to was only applicable to those cases in which the outlawry of the defendant was contemplated, which, by the act of 1860, are treason, felony of death, robbery, burg- lary, sodomy, or buggery, and therefore such additions are not re- quired in an indictment for the unlicensed sale of liquors.*^ Such an omission is a defect of an extremely technical kind, and can be amended on motion*' and cannot be taken advantage of after a trial on the merits.** It is usual to state the residence of the defendant at the time of the commission of the offense, though that be not his usual residence. The correctness of such statement has been considered in Pennsylvania in an outlawry case.*^ It is too late to object to a misstatement of resi- dence, on a motion to arrest judgment after a trial on the merits.** "' Com. V. Ferguson, 8 Pa, Dist. E. *° Com. v. Watrous, 1 Lack. Legal 120. If so, amendable. Record, 431, S. C. 1 Law Times N. S. " Com. V. Miller, 2 Pars. Sel. Eq. Cas. 153. Indictment for dissuading a wit- 480. ness. "Com. V. McMenamee, 9 Phila. 596, "^ Com. v. France, 2 Brcwst. (Pa.) 29 Phila. Leg. Int. 125. Here indicted 568 (false pretenses) ; Com. v. Brazer, for interfering with an officer of the Q. S. Phila. 1847; Com. v. Vickers, 0. mayor, while performing an order of A. & T. Phila. 1847. B. Did not set forth A. B. was the "Com. v. Murphy (1889) 12 Pa. Co. mayor. Ct. 131, 1 Lack. Jur. 127, 9 Lane. L. "Com. V. Demaim, Brightly (Pa.) Rev. 294, 4 Del. Co. Rep. 71, 6 York 441; Com. v. Early, 1 Lack. Jur. 323 Legal Record, 44. This construction (plea filed, then motion to quash). would be in conflict with Com. v. " Alexamder v. Com. 105 Pa. 1. On i'Vojice, 2 Brewst. (Pa.) 568, and Com. trial of such question, though in a hom- v. Watrous, 1 Lack. Legal Record. 431, icide case, the jury may be allowed to S. C. 1 Law Times N. S. 153, both of separate. which were decided subsequent to 1860. "Com. V. Early, 1 Lack. Jur. 323. "Com. v. Williams, 149 Pa. 54, 24 Changed from Ann Early to Honora Atl. 158. Early. "Com,, v. Jackson, 1 Grant Caa. 262. "Robert's Digest of British Statutes, " Respublica v. Steele, 2 Dall.(Pa.)92. 374. "Com. V. Jackson, 1 Grant Cas. 262. § 309] THK INDICTMENT. 257 209. Description of property. — "In order to remove the difficulty of describing the ownership of property, in tlie case of partners and joint owners, in any indictment for any felony or misdemeanor committed on or with respect to any money, chattels, bond, bill, note or other val- uable security or effects belonging to or in the possession of any part- ners or joint owners, it shall be sufficient to aver that the particular subject-matter on which, or with respect to which, any such offense shall have been committed, to be the property of some one or more of the partners or joint owners named in the indictment, and of other persons being partners or joint owners with him or them, without stating any of the names of such other persons ; and in any indictment for any felony or misdemeanor, committed on or with respect to any house or building whatsoever, belonging to or in the possession of any partners or joint owners, or for any felony or misdemeanor commit- ted on or with respect to any property being in any such house or building, it shall be sufficient to aver that the particular house or building on or Avith respect to which, or on or with respect to the property being in which any such offense shall have been conmiitted, is the property of some one or more of the partners or joint owners named in the indictment and of other persons being partners or joint owners with him or them, without stating any of the names of such other persons. *'^ "With respect to property belonging to counties, cities, townships, and districts, it shall be sufficient in any indictment for any felony or misdemeanor on or with respect to any goods, chattels, furniture, provisions, clothes, tools, utensils, materials or things whatsoever, which have been, or at any time shall be, provided for or at the ex- pense of any county, city, township, or district, to be used in any court, jail, house of correction, almshouse, or other building or place, or in any part thereof respectively, or to be used for the making, al- tering, or repairing of any bridge or road, to aver that any such things are the property of such county, city, tovmship, or district."®^ For descriptions of real property, see indictments for the specific offenses, Arson, Burglary, Forcible Entry and Detainer, Malicious Mischief, Nuisance, Violating Eegulations, chapters xii.j, xiii.^ post For description of personal property, see Abortion, Counterfeiting, Cruelty to Animals, Embezzlement, False Pretenses, Frauds, Lar- ceny, Malicious Mischief, Eeceiving Stolen Goods, Kobbery, chapters XII.J XIII., post. "March 31, 1860, P. L. 427, § 14. "March 31, 1860, P. L. 427, S 16. Pa. Crlm. Proc. — 17. 258 CRIMINAL AND PENAL PROCEDURE. [chap. xi. 210. Description of \mtiiigs. — "In any indictment for forgery, ut- tering, stealing, embezzling, destroying or concealing, or obtaining by false pretenses, any instrument, it shall be sufficient to describe such instrument by any name or designation by -which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof."^' "In all other cases whatsoever in which it shall be necessary to make any averment in any indictment, as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport there- of, and in siich manner as to sufficiently identify such instrument without setting out any copy or facsimile of the whole or any part thereof."^" For description of writings, see indictments for the specific of- fenses, Forgery, Lotteries, Libel, Perjury, chapters xii., xm., post. 211. Statement of the offense. — The general principles as to the stating of the offense only will be mentioned here. For the allegations held either to be good, or defective, see the particular offenses, chap- ters XII., XIII., post. The indictment must set forth the offense with which the defendant is charged with sufficient certainty, so that it may appear that the com- mission of a crime is alleged and what offense it is. It must give the defendant reasonable notice of the charge he has to meet, and so iden- tify it that the acquittal or conviction may be subsequently pleaded in bar of a second prosecution, if necessary. The same technical nice- ty in the stating of the offense is not required as at common law. Even if not a statutory offense, all that is now necessary is a stating of the charge so plainly that it may easily be understood by the jury.''^ Such precision must appear as will enable the court to say whether an offense has been committed. ''* If matters appear from necessary implication to the court it will be sufficient Thus, where an allegation is made that defendant is guilty of bastardy, it is not necessary that a statement be made that a child was bom,''* nor is it necessary, where the indictment charges betting on election for governor to be held on a specified date, to state that the election was held on that date ;''* so, "March 31, 1860, P. L. 427, § 17. Allegation of attempt to steal, without "March 31, 1860, P. L. 427, I 18. stating any act as an assault, is bad. "Act March 31, 1860, P. L. 427, § "Com. v. Wentz, 1 Ashm. (Pa.) 269. 11. "Sherbm v. Com. 8 Watts, 212, 34 " Randolph v. Com. 6 Serg. & R. 398. Am. Deo. 460. § 211] THE INDICTMENT. 269 an averment that supervisors were elected by the duly qualified voters of the township, and took upon themselves the duties of office, is a suf ' ficient statement of election.''' But any omission of circumstances necessary to constitute the offense is fatal. Thus, to allege that defend- ant employed others to cut down trees on the land of a third party, without sitating the cutting took place,'* or to fail to state that the oath was false in perjury, is fatal.'"' The facts constituting the offense must be stated, and not a mere conclusion of law. Thus, an allegation of illegal voting on a certain date, without charging that defendant voted at any election held un- der the laws of the commonwealth, is bad ;''* or to charge that a lot- tery was illegal, when nothing is set forth to indicate it.''^ It must state the charge against the defendant with such certainty as to give him fair notice of the substance, time and place of the al- leged offense, so that he may know the charge for which he will be tried. Since the act of 1860 it is sufficient if the indictment describes the act so plainly that it can be understood by the jury. If it comes up to this standard, but does not furnish sufficient information on which to prepare a defense, a bill of particulars may be asked for.*" Prior to this enactment greater particularity was requisite. Thus, an indictment charging forgery by inserting words in receipt, without showing where inserted, whether before or after the signature, was bad,*^ or a charge that defendant erected "divers fish dams contrary to the act of April 8, 1799 ;*^ or for selling lottery tickets, where the name of the tickets or the number sold was not given f^ or for stealing promissory notes, when no description of them was given f* or a charge that officers of election were guilty of official misconduct in putting 150 names on the list of voters, without alleging who any of them were.*^ The rule as to the charging a particular specific of- fense is subject to exception in the case of a common barrator or scold, or the keeping of a bawdy or tippling house.*® The charge must be so stated that in case of a second prosecution for the same offense the acquittal or conviction may be taken advan- tage of. A defendant has the right to have the indictment so certain " Edge v. Com. 7 Pa. 275. " Pennsylvania v. McKee, Addison "Com. V. Bechtol, 4 Clark (Pa.) (Pa.) 33. 306. °' Vpdegraff v. Com. 6 Serg. & R. 5. ^^ Perdue v. Com. 96 Pa. 311. "Com. v. Gillespie, 7 Serg. & R. 469, " Com. V. Huber, 13 Lane Bar, 139. 10 Am. Dec. 475. '"Com. V. Manderfield, 8 Phila. 457. "Stewart v. Com. 4 Serg. & R. 194. 3d, 4th and 5th counts. " Com. v. Miller, 2 Pars. Sel. Eq. Cas. "Com. V. "Sew Bethlehem, 15 Pa. 480. Super. Ct 158 ; Com. v. Keenart, 67 Pa. " Per Gibson, J., in Updegraff v. 203. Com. 6 Sere. & R. 5. 860 CRIMINAL AND PENAL PROCEDURE. [chap. xi. and precise in the description of the crime charged, that the verdict may clearly indicate what he has been relieved of, or what he has to suffer.*'' 212. Certainty and sufficiency in statutory offenses.** — "Every in- dictmemt shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of the assembly prohibiting the crime, and prescribing the punish- ment, if any such there be. . . ."*® The defendant is not deprived of the constitutional right of being informed of the nature and cause of the accusation against him by this, or the succeeding sections relat- ing to particular offenses.®" This provision does not require the use of the exact words of the statute. It is sufficient if they are substantially iised.*^ Should the defendant need further information for a proper preparation of his defense, he may ask for a bill of particulars.*^ It has been said that the indictment to be sufficiently certain should come within these tests: "1st. Does it furnish sufficient information and particulars to enable the defendant properly to prepare his de- fense. 2d. Is it sufficiently precise to protect him from a second pros- ecution ?"»3 If the act be indictable under two statutes or more, the indict- ment should indicate in some way under which the charge is made,** though ordinarily the particular statute under which the indictment is framed need not be designated."^ It is sometimes necessary to do so to show a duty imposed, which the defendant is charged with hav- ing neglected. Thus, the statute was set out in full to aver properly the duty of supervisors to open a road.** But it is too late to object to a failure so to do after verdict.*'' It has been held that the indictment may be defective if in the very " Com. V. Hunter, 13 Pa. Co. Ct. 573, " Com. v. Oetmerette, 10 Pa. Super. 2 Pa. Dist. R. 707; Seifried v. Oom. 101 Ct. 598; Com. v. New Bethlehem, 15 Pa. Pa. 200; Com. v. Keencm, 10 Phila. Super. Ct. 158; Williams v. Com. 91 194, 30 Phila. Leg. Int. 416; Com. v. Pa. 403. Johnson, 13 Pa. Co. Ct. 543, 3 Pa. Dist. '''Com. v. Ramsey, 1 Brewst. (Pa.) R. 222. 422. " See also the specific offenses chap- " Com. v. Fox, 10 Phila. 204, 31 ters XII., XIII. Phila. Leg. Int. 84. Here judgment ar- '»Aet March 31, 1860, P. L. 427, § 11. rested as the indictment failed to show "" Cathcart v. Com. 37 Pa. 108. whether the offense was the giving of " Com. V. Maher, 16 Phila. 456, 40 theatrical exhibitions without a state Phila. Leg. Int. 120; Com. v. Guernsei/, license contrary to the act of 1845, or 8 Lack. Leg. News, 17; Com. v. Ruane, the license required by the act of 1850. 1 C. P. Rep. 41 ; Com. v. Mouat, 14 •" Com. v. Ruane, 1 C. P. Rep. 41. Phila. 366, 37 Phila. Leg. Int. 254 ; " Com. v. Reiter, 78 Pa. 161 ; see also Com. V. EUl, 2 Pearson (Pa.) 432; Com. v. Huntzimger, 35 Pittsb. L. J. 364. Com. V. Rosenberg, 1 Pa. Co. Ct. 273, " Phillips v. Com. 44 Pa. 197. 1 Lehigh Valley L. E. 181, 3 Lane. L. Rev. 75. §§ 213, 214] THE INDICTMENT. 261 words of the act, if those words do not charge the offense which the legislature intended to prohibit.®* Where the act of assembly uses several words to describe the of- fense, disjunctively, it has been held that the words should be con- nected in the indictment as in the act, by M'Clure, J.,®® and that they must be joined conjunctively, by Woodward, J.*"" 213. Negativing exceptions in a statute. — If a crime be generally declared to be wrong, and be constituted a general oifense, the mere fact that a proviso is added to the enactment making it inapplicable to certain persons will not make it necessary for the pleader to show that the defendant does not come within the exception. In such case advantage of the proviso must be taken as a matter of defense.^"* But if an artificial and arbitrary offense is created, only becoming such when it is executed by persons of a particular class, the fact that the defendant is within that class must be pleaded or the indict- ment will be quashed. This is true where the act describes an of- fense, with certain exceptions in the enacting clause, or whei'e the terms "except as hereinafter provided" is introduced therein.^"'^ 214. Meaning and use of words. — The language of indictments is to be understood according to its plain and natural import. Thus, the use of the word "bastardy" is a sufficient allegation that a child was born f^ the use of the word "corn," as generally understood, includes "maize" or Indian com -j^"* and the use of the word "transient" means "not lasting or permanent," as used in the act of assembly forbidding doctors from opening transient offices without a license.-"" The word "duplicate" has a known meaning, and sufficiently describes the book or writing in an indictment for forgery.^"® ISiOT will mere defects in gi-ammar or rhetoric in the indictment vitiate it, if a definite statement of a positive offense can be found therein,^'*''^ and the mere fact that it is untechnical in parts will not '"Com. V. Bechtol, 4 Clark (Pa.) 306. ment against the adulteration of foods The first portion of the act, which was to which was a proviso making it inap- given, forbids tiie employment of oth- plieable in certain eases. Held, that it ers to cut down trees of a third party, need not appear in the indictment that The intent of the legislation is to pre- the offense charged was not within the vent the actual cutting, not a eonspir- proviso) ; Com. v. Leigh, 15 Phila. 376, acy to cut. Therefore a failure to 38 Phila. Leg. Int. 184. charge the actual cutting was held to '"^ Com. v. Shelly, 2 Kulp, 300; Com. be defective. v. Davenger, 2 Luzerne Leg. Eeg. 177, »= Com. v. Bennett, 1 Pittsb. 261. S. C. 30 Phila. Leg. Int. 321. Sale of liquors "or some admixtures ^"^ Com. v. Wentz, 1 Ashm. (Pa.) 269. thereof. ■'^ Com. v. Pine, 2 Clark (Pa.) 154. "" Com. y. Bechtol, 4 Clark (Pa.) 306. ^"^ Com. v. TownUy, 7 Pa. Dist. E. ^ Com. V. Wiclcert, 19 Pa. Co. Ct. 413, 29 Pittsb. L. J. N. S. 4. 251, 6 Pa. Dist. R. 387, 5 Northampton "" Com. v. Beamish, 81 Pa. 389. Co. Eep. 387 (here was a general enact- '"Perdue v. Com,. 96 Pa. 311. 268 CRIMINAL AND PENAL PROCEDUKE. [chap. xi. render it defective, if the averments in other parts are good.^"^ Nor an abbreviation in laying time.^*" The technical words used in the statute to define the criminal act should be set forth. Thus, if the act is made a felony it should be charged to have been feloniously done. .(For the use of the various technical words, see indictments for the specific offenses.) Where knowledge is essential to a conviction, it must be alleged.*^" Techni- cal phrases may be used, such as "then and there," to designate previ- ously stated times and places.^^^ Prior to the statute of 37 Hen. VIII., chap. 8, the phrase "with force and arms" was regarded as in- dispensable in all indictments involving force or trespass. By that act it was made no longer necessary to employ it, and, though it is still in- serted, it need not be, and it has no efi'ect.*^^ 215. Use of the videlicet or scilicet. — The terms videlicet and scili- cet are synonomous, though the former is more frequently used. Such is the technical term for such phrases as "to wit," "that is to say" and "namely," sometimes abbreviated to "viz."^^^ Its purpose is "to point out, particularize, or render more specific that which has been previously stated in general language only ; also to explain that which is doubtful or obscure.""* Its use is to particularize that which was before general, or to explain that which was before doubtful or ob- scure, but it must not be contrary to the premises, and neither in- crease nor diminish, though it may work a restriction where the for- mer words were not express and special, but so indifferent that they might receive such restriction without apparent injury.^^^ When- ever a videlicet contains matter that is material and necessary to be alleged, it is considered as a direct and positive averment, and as such is traversable in the same manner as if no videlicet had been em- ployed.^^® An indictment for false pretenses will be sufficient, which lays the false representations in the videlicet}^'' In civil cases the rule is that the omission of a videlicet does not impose upon the plead- er the necessity of proving precisely as stated matter which would not "^Fitck V. Rempuhlicam, 3 Yeates, 49. treu, 1 Pearson (Pa.) 107 (where li- Technieal words to show the possession quor sold to person of known intemper- of a. freehold in forcible entry and de- ate habits). tainer not accurate, but supplied by "' Oom. v. Williams, 149 Pa. 54, 24 other averments. Atl. 158. ^"Simmons v. Com. 1 Rawle, 142. "' Com. v. Afar*w, 2 Pa. 244 ; Com., v. First March, for the first day of March. Mills. 3 Pa. Super. Ct. 161. ""OoTO. V. Johnson, 4 Clark (Pa.) "'28 Am. & Eng. Eno. Law, p. 451. 398 (here house leased, which was used "'Black, Law Diet, for bawdy house. No allegation of ""Hobart, Ch. J., in Stukeley v. Bui- knowledge on part of the lessor of the ler, Hobart, 172. purposes for which it was to be used, "° Stukeley v. Butler, Hobart, 172. and conviction set aside) ; Com. v. Lieh- "' Com. v. Graves, 23 Pa. Co. Ct. 252. §§ 316, ai7J THE INDICTMENT. 263 require such proof if averred under a videlicet, but this principle has no application to criminal pleadings.-'^* 216. Surplusage and repugnancy. — The introduction of averments which are superfluous and immaterial will not vitiate the indictment. "Where not descriptive of the identity of that which is essential, they may be rejected as immaterial. Thus, the word "feloniously," used in charging a misdemeanor, may be treated as such;^^* or the words "wilfully and corruptly" in charging an election offense contrary to the act of 1891 ;^^° or a conclusion that the act charged is against the form of the statute, when it is a common-law offense ;^^^ or the words "and agents" in a charge of larceny by bailees and agents ;^^^ or the words "and officer" in charge of embezzlement as secretary, treasurer and officer ;*''^ or the phrase "his peaceable possession as aforesaid," in the offense of forcible entry and detainer, where the allegation had already been made that the prosecutor was seised of a freehold ;^^* or the allegation of actual payment of a note, when the indictment charged the defendant with false pretenses in securing the signature to it ;^^^ or the words "with intent to cheat a foreign bank," when con- spiracy was charged to utter forged notes with intent to cheat a foreign bank and divers citizens of the commonwealth f^^ or in indictment for conspiracy to defraud certain persons named "and divers other per- sons" of certain named goods "and divers other goods," the allega- tions as to other persons and goods may be treated as surplusage ;^*^ or the words "the said" when nothing has gone before to which they can refer. ^^* As has been noticed, the offense must be clearly charged, and al- legations so repugnant as to violate this rule will render the count bad. But if the repugnant matters are immaterial, they can be treated as siirplusage. To charge the giving of a blow on the 14th, and alleging the deceased did "languish, and languishing did live un- til the 14:th, when he died," is not bad for repugnancy, since there are parts of a day. Even if so, the contradicting phrase could be treated as surplusage.*^® 317. Duplicity. — A defendant cannot be charged in one and the '" Com. V. Growcs, 23 Pa. Co. Ct. 252. ^^ RespuUica v. Shryler, 1 Dall. ^"'Staeger v. Com. 103 Pa. 469; Com. (Pa.) 68. V. Wood, 2 Pa. Super. Ct. 42. ™ Com. v. Frey, 50 Pa. 245. ^^ Com. V. Casey, 14 Pa. Co. Ct. 389, '^ Cla/ry v. Com. 4 Pa, 210. 3 Pa. Dist. R. 413, 7 Kulp, 265. ™ Com. v. Goldsmith, 12 Phila. 632, ^"^Com. V. Kay, 14 Pa. Super. Ct. 35 Phila. Leg. Int. 420. 376. '" Com. V. Howells, 18 Pa. Super. Ct. ^"^ JJutchison v. Com. 82 Pa. 472. 323. ^'^ Com. V. Leisemring, 11 Phila. 392, ^ Pen/nsvlvania v. Bell, Addison 32 Phila. Leg. Int. 168. (Pa.) 156,-1 Am. Dec. 298, 284 CEIimNAL AND PENAL PROCEDURE. [chap, xi, same count with two or more independent offenses. If so, the count is bad for duplicity. Thus, to charge embezzlement as trustees and agents, or embezzlement as trustees, agents, and bailees ;^^° or to charge the appropriation of money by defendant as consignee and bailee;'*^ or to clmrge three distinct nuisances on Hill street, Jones street, and Stanton street, respectively ;^^* or to charge selling liquor on Sunday contrary to the act of 1875, and allowing liquor to be drunk on the premises under act of 1855 ;^*^ or to charge different acts of cruelty to animals against eight defendants engaged in the construc- tion of public works ;^** or to charge the killing of two persons in one count for manslaughter j-**^ or to charge the receiving of stolen goods the property of A, and other goods the property of B ;^** or to charge fraudulently embezzling and feloniously stealing, taking, and carry- ing away ;^^'^ or to charge embezzlement by a tax collector of taies of borough, county, and state, — is bad.^*® 218. Where second offense not well charged. — If the second offense is not well charged, it may be treated as surplusage. Thus, the alleg- ing that defendant is guilty of larceny as bailee and agent is not bad, since there is no offense of larceny as agent, and this is treated as sur- plusage.*^* The joining of the sale of liquors and the giving of them is good, since to make out the crime of giving it must appear that it was done as an incident of some business or profitable employment.**" Likewise the alleging of false pretenses in securing a note, and a state- ment that the said note was paid, is not duplex, and the allegation of payment will be treated as surplusage. ■*** Or in the charging that supervisors failed to "open, mend, and repair" a certain road, the word "mend" will not render the count defective.**^ 219. Where statute provides for distinct acts. — When a statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered a phase of the same event, they may be coupled in one count. It is proper to join under this principle forcible entry and detainer;*** failure of supervisors ^^ Hutchison y. Com. 82 Fa. 472. v. Bright, 11 Pa. Dist. R. 173, where "" Com. V. Cart, 2 Pittsb. 495. the indictment was framed under the '" Com. V. Wilkesharre, 1 Kulp, 437. 107th section of the act of 1860. ™ Com. V. Schmib, 3 Kulp, 26, 6 Law "' Com. v. Miller, 20 Pa. Co. Ct. 183. Times N. S. 123. Being three municipal corporations, "' Com. V. FrescoVn, 1 1 Lane. L. Rev. could not be at the same time. 161. ^"Hutchison v. Com. 82 Pa. 472. ^Com. V. Sta/rr, 36 Pittsb. L. J. 334. '"Jillard v. Com. 26 Pa. 169. "" Kilrow V. Com. 89 Pa, 480. Not '" Com. v. Frey, 50 Pa. 245. the same offense. ""Edge v. Com. 7 Pa. 275. "" Com. V. Wood, 17 Pa. Co. Ct. 249, >" Com. v. MUler. 107 Pa. 276. S. C. 5 Pa. Dist. R. 179. But see Com. §1 220, 221] THE INDICTMENT. 263 to "open and repair" a road f'^* fornication and bastardy or adultery and bastardy ;^*^ rape and bastardy;^** failure of prothonotary to pay over money when demanded and receiving the same money and embez- zling it;^*^ unlawfully keeping house where spirituous liquors were sold without obtaining a license, and unlawfully selling without a li- cense ;^*^ selling and causing to be sold ;^*® unlawfully, directly, or indirectly offering and promising to give a bribe.-'*" Where the act uses words in describing the offense disjunctively, the count should charge them conjunctively.-'^^ 220. Where several acts done at one time. — So, the various acts done by the defendant in committing the crime charged may be set forth in one count. Thus, in an indictment charging A, B, and C with the fraudulent removing of goods it is proper to allege that A and B took them to 0, who secreted them, all in furtherance of the common design ;^"^ or the separate false pretenses;^** or several methods or phases of removal of goods, although the removal may have been ac- complished by one or more to the exclusion of others;"* or in nui- sance to allege the road to be the commonwealth's road or one lead- ing from A to B."^ When a number of acts are done at the same time, and as a part of the same transaction, though to the injury of several, they may be joined in one count. Thus, in larceny the taking of several articles at the same time from one or different owners may be alleged, and like- wise in receiving stolen goods.^^* ]!^ot only may the taking of several articles from one person be alleged in one count, but it must be done, or, on a second indictment for the larceny of a different portion of them, the former acquittal on the first indictment for a portion may be taken advantage of to bar the second prosecution.^*'' 221. Matters of aggravation. — Matters of aggravation which are stated will not render a count double. Thus, in a charge of burglary ^** Edge v. Com. 7 Pa. 275. "'^ Com. v. Lute, 9 Lane. L. Eev. 241, >« Gorman v. Com. 124 Pa. 536, 17 S. C. 5 Del. Co. Rep. 87. Atl. 26. "' Com. V. Soler, 15 Pa. Super. Ct. "» Com. V. Lewis, 140 Pa. 561, 21 Atl. 520. 501. ™ Com. V. Lewis, 6 Pa. Super. Ct. "'CoTO. V. Mentzer, 162 Pa. 646, 29 610. Atl. 720. "^ Bespublioa v. Arnold, 3 Yeatea, '« Com. V. Price, 4 Kulp, 289, 3 Pa. 417. Co. Ct. 175. '^Fulmer v. Com. 97 Pa. 503; Com. '" Com. V. Schoenhutt, 3 Phila. 20. v. Dreisiach, 29 Phila. Leg. Int. 333, S. ^"Com. V. 8ilUma/n, 8 Lack. Legal C. 1 Luzerne Leg. Reg. 543; Com. v. News 9, 15 York Legal Record, 205. Ault, 10 Pa. Super. Ct. 651; Com. v. '"Com. V. Beohtol, 4 Clark (Pa.) iCoift, 13 Pa. Super. Ct. 347. 306. See contra, Com. v. Bermett, 1 ^'' Com. v. Dreisbach, 29 Phila. Leg. Pittsb. 261. Int. 333, 1 Luzerne Leg. Reg. 543. 266 CRIMINAL AND PENAL PJJOCEDURE. [chap, yl with intent to steal, the additional allegation that the goods were stol- en is not objectionable.^^* Or to charge an attempt to dissuade and the actual dissuading of witnesses from attending court.^^* In count for assault and battery with intent to kill, the circumstances of ag- gravation may be stated disjunctively.^*" 9,22. Words of description. — Words ordinarily used to charge a specific offense may be applied merely as description, in which case the count will not be duplex. Thus, in alleging that an employee who received money from his employer did embezzle and feloniously steal it, the word "embezzle" was held to be used merely in the sense of "take away."^®^ The indictment here was imder § 107 of the act of 1860. The same words were held to make the count double in an in- dictment under § 125 of the same act.^®^ The use of the word "em- bezzle" was similarly interpreted in counts charging forgery, which were held good.^®* 223. How taken advantage of. — Advantage of duplicity may be taken by demurrer or motion to quash, but not in arrest of judg- ment.*** N^or can it be first taken advantage of on writ of error.**® 224. Conclusion. — It is an old rule of law that an indictment must conclude "against the peace and dignity" of the government whose laws have been violated. Constitutional provision was early made in Pennsylvania, and appears in the Constitution of 1874. "All prose- cutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania," and conclude "against the peace and dignity of the same,"**^^ the words to be used are "against the peace and dignity of the commonwealth," the word "same" referring to it.**^* It is necessary that these words appear,* *'' though their omission has been held to be a formal defect and amendable;*** and it is sufficient if one count concludes against the form of the statute, etc., if the second count contains the conclusion in full.**' The words of the conclusion should follow the constitutional direction. ""Becker V. Com. (Pa.) 8 Cent. Rep. ''"Com. v. Bar gar, 2 Law Times N. 388, 9 Atl. 510; Com. v. Carson, 166 S. 161. Pa. 179, 30 Atl. 985; Stocyps v. Com. 7 "^ Com. v. Livingston, 18 Pa. Co. Ct. Serg. & R. 491, 10 Am. Dec. 482 ; Com. 236, 5 Pa. Dist. E. 666, 27 Pittsb. L. J. V. Solby, 15 W. N. C. 392; HoUister v. N. S. 153. Com. 60 Pa. 103. »'"> Kilrow v. Com. 89 Pa. 480. ^Com. V. Onemsey, 8 Lack. Legal '"aPa. Const. 1874, art. 5, § 23. News, 17. '"Rogers v. Com. 5 Serg. & R. 463. '™ Scott V. Com. 6 Serg. & R. 224. "' Com. v. Sehall, 5 York Le^ Ree- "Did bite or cut off the ear of William ord, 137 ; Com. v. Danner, 5 York Legal Cessna, and with a certain Itnife the Record, 138. said William did stab or wound." '"* Com. v. Pawson, 14 Phila. 665 36 "' Com. V. Bright, 11 Pa. Dist. R. 173. Phila. Leg. Int. 444. '•" Com. V. Wood, 17 Pa. Co. Ct. 249, """ Com. v. Paxson, 14 Phila. 665, 36 S. C. 5 Pa. Dist. R. 179. Phila. Leg. Int. 444. But see Com. v § 225] THE INDICTMENT. 267 Thus the ending "to the great damage of A (the prosecutor), against the peace of the state, the government, and dignity of the same," waa held bad."o "Where the act charged is made au offense by statute, tJ*'; count must also conclude against the form of the statute.^''^ Bu* ^fiere the offense is one at common law, or is not newly created or prohibited by statute, but merely a penalty imposed thereby, this is not required.^''^ If the indictment conclude both against the form of the statute, and against the peace and dignity of the commonwealth of Pennsyl- vania, and the offense be one at common law, the phrase "against the form of the statute" may be disregarded and treated as surplusage. ■'''* It has been held in indictments for nuisance that the conclusion should contain the statement that the offense had been committed "to the common nuisance of the citizens of the commonwealth of Pennsyl- vania."*^* Under the provision of the Penal Code that objections to an indict- ment for formal defects apparent on the face thereof shall be taJjen by demurrer on motion to quash before the jury shall be sworn, it is too late to object to the conclusion for the first time on motion to ar- rest judgment.-'''® 225. Reference from one count to another. — Each count is to be con- sidered as a formal charging of a separate offense, but, for conven- ience, reference may be made in one count by the use of proper words to matters alleged in another. "Every count should appear, upon the face of it, to charge the defendant with a distinct offense, yet one count may refer to matter in any other count, so as to avoid unneces- sary repetitions."^^* So, a second count for receiving stolen goods may refer to the first count charging larceny, for allegations as to the ownership and value of property.^'^^ B may be charged in one count as abetting the "said arson," viz., an arson described in the pre- ceding count."* A statement following the counts, showing why the Schall, 5 York Legal Eecord, 137; and 489; Com. v. Searle, 2 Binn. 332, 4 Am. Com. V. Banner, 5 York Legal Eecord, Dec. 446. 138, in which cases the third count was ^''^ Pennsylvania v. Bell, Addison properly concluded; and Com. v. Lieh- (Pa.) 156, 1 Am. Dec. 298; Bespuhlioa treu, 1 Pearson (Pa.) 107, where one v. Newell, 3 Yeates, 407, 2 Am. Dee. count was held bad in not concluding 381; Gom.v. Kay, li Pa. Super. Ct. 376. against the form of the statute. "' Graffius v. Com. 3 Penr. & W. 502. "° Com. V. Jackson, 1 Grant Cas. 262. "' Com. v. Paaston, 14 Phila. 665, 36 '" Chapman v. Com. 5 Whart. 427, 34 Phila. Leg. Int. 444. Am. Dec. 565; Com. v. Liebtreu, 1 ""Com. v. Ault, 10 Pa. Super. Ct. 651. Pearson (Pa.) 107; Warner v. Com. 1 "^ Com. v. Ault, 10 Pa. Super. Ct. Pa. 154, 44 Am. Dec. 114. 651; Com. v. Kaa^, 3 Brewst. (Pa.) ™ White V. Com. 6 Binn. 179, 6 Am. 422. Dec. 443 ; Russell v. Com. 7 Serg. & R. ™ Sampson v. Com. 5 Watts & S. 385. 868 CRIMINAL AND PENAL PROCEDURE. [chap. xi. statute of limitations does not apply, may be read into both counts.*^* A later count may refer to an earlier for the fact that the finding of the grand jury was upon their respective oaths or affirmations;^^" or that they were inquiring for that county ;^*^ or for the statements as to the office held by the defendants in a prosecution for election of- fenses j'^'* or to the proper conclusion as given in another count ;^*^ or in embezzlement to the property as stated in a preceding count.-' ^* If the count to which reference is made is abandoned, the one re- ferring thereto will not be rendered defective,*"* nor if the first be quashed.**® 226. Joinder of counts; different offenses. — Several distinct felonies cannot be joined in the same indictment. If this is done, the court will compel the commonwealth to make an election.**'' By statute murder and concealing the death of a bastard may be joined ;*** and receiving stolen goods in any indictment for feloniously stealing prop- erty;'*® and any number of distinct misdemeanors may be. Thus, five liquor offenses under different acts of assembly were joined in different counts;*®" various lottery offenses in nine counts;*®"^ vari- ous forgeries;*"* and election offenses.*®^ But even in. these cases, when +he procedure and the rights of the defendant are materially different, the joinder should not be allowed.*"* 227. Joinder of counts; cognate offenses. — At common law the joinder of felonies and misdemeanors was not permitted, but this rule was early departed from in Pennsylvania. "The English rule against the joinder of a felony and misdemeanor in the same indictment has been greatly modified by modern decisions. It would be going too far to say now that it exists in any case, except it is .where the offenses ™ Rosenherger v. Com. 118 Pa. 77, Schall, 5 YoT-k Legal Record, 137; Com. 11 Atl. 782. V. Banner, 5 York Legal Record, 138. "' Respublica y. Tryer, 3 Yeatea, 451. ^'' Com. v. Shissler, 7 Pa. Dist. R. ^^ Com. V. Meads, 14 York Legal Rec- 341; Com. v. H/anson, 2 Ashm. (Pa.) ord, 132. 31 ; Com. v. Gillespie, 7 Serg. & R. 469, ""Com. V. Miller, 2 Pars. Sel. Eq. 10 Am. Dec. 475; Com. v. Dobbins, 2 Cas. 480. Pars. Sel. Eq. Cas. 380. "' Com. V. Paxton, 14 Phila. 665, 36 ™ Act March 31, 1860, P. L. 382, § 89. Phila. Leg. Int. 444, 1 Chester Co. Rep. '"Act March 31, 1860, P. L. 427, § 24. 138. But see contra, Com. v. Schall, 5 ^"Com.Y. Liebtreu,! Pearson (Pa.) 107. York Legal Record, 137, and Com. v. ™a Com. v. Gillespie, 7 Serg. & R. Banner, 5 York Legal Record, 138. 469, 10 Am. Dec. 475. "^'Gom. V. Hill, 2 Pearson (Pa.) 432. ^'^Com.v.Bargar,2 LawTimesN.S. 161. "' Com. V. HiJ«, 2 Pearson (Pa.) 432. ^"Com. v. Shwub, 5 LaJic. L. Rev. "• Com. V. Ault, 10 Pa. Super. Ct. 121 ; Com. v. Fry, 5 Lane. L. Rev. 75. 651; Com. v. Kaas, 3 Brewst. (Pa.) ^^ Com. v. Cronin, 16 Phila. 500, 41 422; iJesp-uSMoo V. Tri/er, 3 Yeates, 451; Phila. I.«g. Int. 145, 1 Lane. L. Rosenberger v. Com. 118 Pa. 77, 11 Rev. 156. Here fraudulent insolvency, Atl. 782. See contra. Com. v. Meads, and embezzlement and gambling which 14 York Legal Record, 132; Com. v. caused it, were held to be misjoined. § 237J THE INDICTMENT. 369 are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to tend to deprive the defendant of some legal advantage."^ ^* The court has it within its power to protect the defendant by compelling an election, if the mode of proceeding -will subject him to unreasonable difficulty or embarrassment.-'®^ The same offense may properly be charged in different ways in separate counts to meet the different phases of the evidence which may be adduced at the trial. Thus, there was no misjoinder in an indictment for violation of an ordinance of Philadelphia, forbidding the erection of a wooden house, shop, or warehouse, which charged in one count the building of a wooden shop and in another the building of a wooden warehouse ;^^* or in one which charged in six counts, with slight variations, the burn- ing of the same barn;*®^ or in one which alleged the ownership of property stolen to be in A in one count, and in B in another;*®* or in one for embezzlement, which in some counts charged the property to have been appropriated to the use of A, and in some to the use of B J*®" or in an indictment for forgery which alleged the altering of a receipt in different ways in four counts f°'^ or in an indictment for arson which fixed the o^vnership of property in one count in A, and in another in B.^"* If the same acts constitute two or more offenses, counts charging each offense are properly joined ; or if the pleader deems it necessary to charge the same act as constituting different offenses, in order to meet the evidence, and avoid a variance in the proof, it is proper. Thus, he may connect statutory and common-law burglary,^"^ em- bezzlement under §§ 115 and 116 of the act of 1860 by the treasurer of a corporation, with a count for fraudulently omitting to enter the money received on the company's books under § 117 f^ larceny and larceny by bailee f°* seduction and fornication and bastardy f^^ rob- bery and larceny by bailee;^"® adultery and fornication and bas- "'Agnew, J., in Eenwood v. Com. 52 '^Sampson v. Com. 5 Watts & S. Pa. 424. 385. '«> Barman v. Com. 12 Serg. & R. 70. "^ HolUster v. Com. 60 Pa. 103. See also Hunter v. Com. 79 Pa. 503, 21 ""^ Com. v. Leisenring, 11 Phila. 389, Am. Rep. 83; Com. v. Adams, 2 Pa. 32 Phila. Leg. Int. 160. Super. Ct. 46, 38 W. N. C. 571. ""'Eenwood v. Com. 52 Pa. 424, ap- ^^ Douglass v. Com. 2 Rawie, 262. parently overruling Com. v. Cart, 2 "' Staeger v. Com. 103 Pa. 469. Pittsb. 495, though the count here was •»« Com. V. Dobbins, 2 Pars. Sel. Eq. held bad for duplicity. Cas 380. '^Nicholson v. Com. 91 Pa. 390. ^" Com. V. SMssler, 7 Pa. Dist. R. 344. =» Com. v. Shutte, 130 Pa. 272, 18 "«Com. V. BTiissler, 9 Phila. 587, 29 Atl. 635. Phila. Leg. Int. 76. 270 CRIMINAL AND PENAL PROCEDURE. [chap, xl tardy f'' larceny and entering storehouse with intent to steal ;^'" lar- ceny and false pretenses;*"® larceny and receiving stolen goods j*^" housebreaking iinder the act of 1863, and maliciously and wilfully breaking window in house ;*^^ burglary, entering at night without breaking with intent to steal and receiving stolen goods ;^^* making counterfeit note and making counterfeit plate;'*** larceny and enter- ing dwelling house with intent to steal;*** burglary and larceny;**® riotous tearing down of house, riotous assault and battery, and riotous assembly to disturb the peace;*** embezzlement and false pre- tenses ;**^ kidnapping and harboring and concealing child knowing it to have been enticed away;*** counts for the specific overt acts with one for conspiracy to commit the same;**' feloniously setting fire to factory and burning with intent to defraud an insurance com- pany ;**" attempt to commit abortion, assault with intent to commit, and administering drugs with intent to commit.*** 228. Included offenses. — Likewise, where the one count charges a greater offense, other counts may charge the lesser offenses included therein, for even without a special alleging the defendant may be con- victed of a constituent offense included within the one for which he is indicted.*** So, it is proper to join with rape, assault and battery with intent to ravish ;**' with rape, assault and battery with intent to ravish, and fornication ;*** with rape, assault and battery with intent to ravish and assault and battery ;*** with rape, attempt, indecent as- sault, and assault and battery;*** with murder, manslaughter with averment of previous conviction;**^ with assault with intent to mur- '^ Gorman v. 0cm. 124 Pa. 536, 17 ™ Com. v. Sylvester, 4 Clark (Pa.) Atl. 26; Com. v. Burk, 2 Pa. Co. Ct. 12, 31; Com. v. Manson, 2 Ashm. (Pa.) 31; S. C. 3 Lane. L. Rev. 138. Com. v. Demam,, Brightly (Pa.) 441; '^ Com. V. Birdsall, 69 Pa. 482, 8 Am. Com. v. Fry, 5 Lane. L. Rev. 75; Com. Rep. 283. V. Westervelt, 11 Phila. 461, 32 Phila. '"Com. V. March, 1 Pa. Co. Ct. 81. Leg. Int. 346; Com. v. Hartman, 10 ™8tahl's Appeal, 1 Pa. Super. Ct. Lane. L. Rev. 33. 496. See Penal Code of 1860, P. L. 427, "'" Com. v. Landis, 13 Pa. Super. Ct. § 24. 134. "' Com. V. Owrson, 166 Pa. 179, 30 «' MUls v. Com. 13 Pa. 634. Atl. 985. "^ Com. v. Parker. 146 Pa. 343, 23 ^''Com. V. Stinger, 15 Phila. 375, 38 Atl. 323 (indicted for rape, convicted of Phila. Leg. Int. 184, 13 Lane. Bar, 30. fornication) ; Dinkey v. Com. 17 Pa. '"Com. V. Hand, 3 Phila. 403, 16 127, 55 Am. Deo. 542; seduction, convic- Phila. Leg. Int. 157. tion of fornication. "* Com. V. Pei-ffer, 9 Phila. 593, 29 "' Harmwn v. Com. 12 Serg. & R. 69. Phila. Leg. Int. 125. '" Stevick v. Com. 78 Pa. 460. '" Com. V. Church, 17 Pa. Super. Ct. "» Com. v. Letois, 140 Pa. 561, £1 Atl. 39. 501. "• Shouae v. Com. 5 Pa. 83. »" Com. v. Fisher, 20 Pa. Co. Ct. 296, "' Com. V. Shissler, 7 Pa. Dist. R. 344. 14 Montg. Co. L. Rep. 44. '"Com. V. Westervelt, 11 Phila. 461, '" Karme v. Com. 109 Pa. 541. 32 Phila. Leg. Int. 346. §§ 229, 230] THE INDICTMENT. 271 der, assault.^^* But counts cannot be joined under this principle un- less they are constituent offenses. Thus, involuntary manslaughter could not be joined to a count for murder, because, under an indict- ment for the latter, there can be no conviction of the former,**' though by act of assembly such a count may be joined with one for voluntary manslaughter.**" 229. Election. — If the defendant can make it appear that the joinder will subject him to imreasonable difficulty or embarrass- ment, the court has it in his power either to quash the indictment, or to compel the prosecutor to elect on which count he vdll proceed.**^ Ordinarily the court will compel an election.*** But the district at- torney is not bound to volunteer such. It is for the defendant to demand it before trial, if he thinks there is a misjoinder.*** The defect cannot be taken advantage of on demurrer,*** or on motion in arrest of judgment.**^ Where an election has been ordered, and the trial proceeds on the most serious offense, the defendant cannot object to a subsequent trial on the minor offense on the ground of a former acquittal.**^ 230. Joinder of parties. — "When more than one join in the commis- sion of an offense, all, or any number of them, may be indicted jointly for it, or, since each is severally amenable to justice for the conse- quences, each of them may be indicted separately."**'' In certain of- fenses, such as conspiracy, the crime is in its nature joint, and the in- dictment must allege the unlawful agreeing with another, though it is not necessary that all of the conspirators be made defendants.*** So, in the crime of riot, it must appear that more than one was en- gaged in the commission of the offense.**® Where joint offenses are charged in informations, the question of the expediency of jointly indicting is for the district attorney, and not for the judge, to determine.**" If the indictment be for the failure to do some duty jointly im- '^Bunter v. Com. 79 Pa. 503, 21 Am. "= Com. v. Band, 3 Phila. 403, 16 Eep. 83. Phila. Leg. Int. 157. '" Com. V. BiUerback, 2 Pars. Sel. Eq. """ Com. v. Bass, 4 Kiilp, 76, S. C. 3 Cas. 447; Walters v. Com. 44 Pa. 135; Lane. L. Rev. 279. Com. V. Cable, 7 Serg. & R. 423. ™Rice, P. 3., in Com. v. Casey, 14 ""Act March 31, 1860, P. L. 439, § 20. Pa. Co. Ct. 389, 3 Pa. Dist. R. 413, 7 "'■Barman v. Com. 12 Serg. & R. 69; Kulp, 265. Com. V. Shissler, 7 {"a. Di^ R. 341. '^ Com. v. Demai/n, 3 Clark (Pa.) =« Com. V. Shissler, 7 Pa. Dist. R. 341. 487 ; Beine v. Com. 91 Pa, 145. ^ Com. V. Stinger, 15 Phila. 375, 38 "" Permsylvania v. Buston, Addison Phila. Leg. Int. 184, 13 Lane. Bar, (Pa.) 334. 30. ""Franklin's Appeal, 163 Pa. 1, 29 ""Com. V. Demain, Brightly (Pa.) Atl. 912. 441. 278 CRIMINAL AND PENAL PROCEDURE. ichap. xi. posed on two or more by law, or for wrongly performing it, tliey should be charged together. Thus, an indictment for nuisance in fail- ing to repair roads is bad, where only one of the supervisors is charged.^*^ Election officers required by law to jointly maJce returns may be jointly indicted for failure to do so, though their duties are in other respects distinct.^** If, however, their duties are not joint, this cannot be done. Under the general election laws, the judge and inspectors are not jointly indictable for this reason.^*® It would seem that several persons may also be charged in the sev- eral counts of one indictment with different offenses arising from the same transaction,*** but different persons and different offenses cannot be joined in one count.^**'^ 231. Effect of misjoinder. — If there has been a misjoinder of par- ties, the court may direct the entry of a nolle prosequi as to some, in which way the defect may be overcome,^*' and this may be done in the discretion of the court, even if there is no misjoinder.*** In no case can the objection of misjoinder of parties be first taken advan- tage of on motion in arrest of judgment.**'' 232. Joint and separate trials. — "In all cases in which two or more persons are jointly indicted for any offense, it shall be in the discre- tion of the court to try them jointly or severally, except that in cases of felonious homicide the parties charged shall have the right to de- mand separate trials ; and in all cases of joint trials the accused shall have the right to the same number of peremptory challenges to which either would be entitled, if separately tried, and no more."**® Except in the case of felonious homicide, the granting of the separate trial is entirely within the discretion of the court, and its action is not "' Com. V. Grove, 7 Phila. 660. 591, it was held that the joint indict- "•' Com. V. Maker, 16 Phila. 456, 40 ment would not lie for the failure to Phila. Leg. Int. 120; Com. v. Boyle, 14 take an oath, for in that respect their P». Co. Ct. 561, 3 Pa. Dist. R. 591; duties are several. Com. V. Shauh, 5 Lane. L. Rev. 121; "*Com. v. Gillespie, 7 Serg. & R. 469, Com. V. Fry, 5 Lane. L. Rev. 75 (joint 10 Am. Dec. 475. Here A and B charged indictment, but objection does not seem with conspiracy to commit misde- to have been taken. meanor, then jointly with the commis- "" Com. V. Ziert, 4 Pa. Co. Ct. 394, S. sion of the offense, and then likewise C. 5 Lane. L. Rev. 138; Com. v. Miller, separately. 2 Pars. Sel. Eq. Cas. 480; Com. v. '"a Com. v. FresooJM, 11 Lane. L. Rev. Youlls, 5 Kulp, 231. These cases are 161. to be distinguished from those preced- "'Com. v. youlls, 5 Kulp, 231. ing. In Com. v. Maker, only the in- "" Com. v. Casey% 14 Pa. Co. Ct. 389, spectors were joined. In the others the 3 Pa. Dist. R. 413, 7 Kulp, 265. indictments were under the act of 1881 "' Com. v. Gillespie, 7 Serg. &, R. 469, relating to primary elections wherein 10 Am. Dec. 475; Com. v. Bradley, 16 the duties are made joint. In Com. v, Pa. Super. Ct. 561. Boyle, 14 Pa. Co. Ct. 561, 3 Pa. Dist. R. "» Act March 31, 1860, P. L. 427, S 40. § 232] THE INDICTMENT. 273 reviewable.^*® It will only be done when some good cause is shown,^®" and may be at the election of the commonwealth.^^^ If severance is allowed, the district attorney may proceed, in his discretion, with the trial of either defendant.^^^ When separate trials are granted, the counts relating to each defendant will be treated as several indict- ments.-^* The verdict of the jury in such cases may be guilty as to all or one alone.^^* If an agreement be reached as to two of three jointly in- dicted the court should receive the verdict as to them. To discharge the jury as to all would prevent a further prosecution.^^^ ^" Com. V. Place, 153 Pa, 314, 26 Atl. "^ Shay v. Com. 36 Pa. 305. 620 (libel). '"•Com. v. Bradley, 16 Pa. Super. Ct. ^ Com. V. Bumm, 45 Phila. Leg. Int. 561 (principal and accessory); Petm- 104 (conspiracy). Prior to act of 1860 syVoania v. Lovel, Addison (Pa.) 18 it was held there could be no severance ( husband and wife ) . in this oflEense. Com. v. Manson, 2 ^ Shouse v. Com. 5 Pa. 83. Ashm. (Pa.) 31. '''Com. v. Cook, 6 Serg. & K. 577, » ^ Com. V. Hughes, 11 Phila. 430, 33 Am. Dec. 465. Phila. Leg. Int. 44. Pa. Crim. Proc.— 18. CHAPTEE XII. INDICTMENTS FOR PARTICULAR OFFENSES. 233. Abandonment. 234. Abortion. 235. Adultery. 236. Arson. 237. Assault and battery. 238. Attempts. 239. Bawdy houses. 240. Blackmail. 241. Blasphemy and profanity. 242. Bribery. 243. Burglary and housebreaking. 244. Carrying concealed deadly weapons. 245. Concealing death of a bastard. 246. Contempt. 247. Conspiracy. 248. Counterfeiting. 249. Cruelty to animals. 250. Disorderly houses. 251. Disturbing public meetings. 252. Dueling. 253. Elections. 254. Embezzlement. 255. Escape. 256. False pretenses. 257. Forcible entry and detainer. 258. Forgery. 259. Fornication and bastardy. 233. Abandonment. — An indictment based on the act of June 11, 1879,^ which makes it an offense for any "person having the cus- tody or control of any minor child" to "wilfully abandon or neglect the same," should charge the act to have been "wilfully" done. But the substitution of the word "unlawfully" will not be ground for ar- resting judgment, where the evidence showed "wilfulness," and the jury were instructed that they must find from the proof that the act was wilful before they could convict. Had the objection been taken earlier, the defect could have been amended.^ ' p. L. 142. 2 Pa. Dist. R. 43, 23 Pittsb. L. J. N. S. 'Com. V. Stewart. 12 Pa. Co. Ct. 151. 59. 274 §i 834, 235] INDICTMENTS FOR PARTICULAR OFFENSES. 275 234. Abortion.— Prior to the Penal Code of 1860, killing in the perpetration of abortion -was mnrder in the second degree.^ By the 87th section it is made a distinct offense. Where death thus results the indictment must be drawn under this section, and not for mur- der.* It is not necessary, in the indictment charging the production of an abortion, to aver the quiclsness of the mother. The setting forth that she was "big and pregnant" is sufficient.® Nor is there any re- pugnancy, or inconsistency, if three counts charge quickness, and two are joined charging that the woman was "big and pregnant."® The indictment is not defective which charges "an intent to cause and procure the miscarriage and abortion of the mother (naming her), and the premature birth and destruction of the child, of which she was then and there pregnant," instead of charging the intent to cause and procure the miscarriage and abortion of the child.'' It is un- necessary for the commonwealth to particularize in the indictment either the name or the quantity of the substance charged to have been administered. * 235. Adultery. — An indictment for adultery will not be defective if drawn according to established precedents in use before the act of 1860, though it does not follow the wording of that act.* It would seem the name of the living husband or wife of the married person charged Avith the crime should be set forth. Thus, the defendant, "being a married man, and having a wife, to wit, Mary Ann Hel- frieh, in full life, did commit adultery with a certain Matilda Meyers."^" Or, "unlawfiilly did have carnal knowledge of the body of one Florence E. Miller, the said M. H. Hogentogler being then and there a married man and then and there having a lawful wife, Sarah Hogentogler."^^ And a failure to set forth the name of the husband has been held fatal.-'^ But it was held sufficient when not set forth, but alleged "carnal connection with a woman, H., not his lawful wife," the fact that he was a married man having first been stated.-'* And the indictment has been held good on motion in ar- " Com. ex ret. Chauneej/ v. Keeper of ' Gorman v. Com. 124 Pa. 536, 23 W. Prison, 2 Ashm. (Pa.) 227. N. C. 40S, 17 Atl. 26. *Com. V. Railing, 113 Pa. 37, 4 Atl. ^' Helfrieh v. Com. 33 Pa. 68, 75 Am. 459. Motion to quash sustained. Dee. 579. ' Com. y. Demain, Brightlj (Pa.) 441, '^ Com. v. Bogentogler, 11 Lane.. L. 3 Clark (Pa,) 487 (here first count Eev. 395. charged quickness and the remaining " Com. v. Corson, 2 Pars. Sel. Eq. Cas. six did not) ; Mills v. Com. 13 Pa. 631. 475. 'Mills V. Com. 13 Pa. 634. "Davis v. Com. (Pa.) 4 Cent. Rep. ^ Mills V. Com. 13 Pa. 631. 711, 7 Atl. 194. ■ Com. V. W. M. W.— , 3 Pittsb. 462. 276 CRIMINAL AND PENAL PROCEDURE. [chap, xil rest of judgment where only this description was given : "Did com- mit the crime of adultery with one Ellen Colihan, the said Thomas Gorman (defendant) being then and there a married man and hav- ing then and there a lawful wife alive."^* It has been said that the failure to set forth the name was at most a formal defect, which must be taken advantage of before trial. ■'^ If the name of the hus- band or wife of defendant be given, the fact that the person with whom the intercourse took place was not the lawful husband or wife need not be stated. -"^ And, vice versa, if the latter appears, the for- mer need not.-^®^ It is sufficient to charge that defendant committed adultery, without otherwise alleging carnal intercourse. ■^'^ By the earlier act of 1705, the fine imposed was divided between the commonwealth and the supervisors of the township where the offense was committed. Under it a failure to state the township did not render the indictment defective, for the court could ascertain it.-'* 236. Arson. — By the act of 1S06, it was made arson to burn a "barrack, rick, or stack of hay, grain, or bark." An indictment under this statute for burning a barrack, without alleging that it contained "hay, grain, or bark," was held defective.-'® An attempt to commit the felonious arson provided for by the 137th section of the Penal Code, to wit: The burning of a barn which is a parcel of a dwelling house, — must be charged to have been feloniously done. And the conviction under a count failing so to allege cannot be sustained as a misdemeanor under the 138th sec- tion, which consists in burning a barn not a parcel of a dwelling house.^" But if the indictment be drawn under the 138th section, the use of the word "feloniously" will not render the indictment bad, since it can be treated as surplusage.'*^ Under this section it is not necessary to specifically state that the barn is "not a parcel of the dwelling house."^^ If tiie allegation be made that the act was "fe- loniously, unlawfully, and maliciously" done, the failure to use the word "wilfully" will not render the count defective, since the word "maliciously" will supply it.** " Gorman v. Com. 124 Pa. 536, 23 W. " Helfrich v. Com. 33 Pa. 68, 75 Am. N. C. 405, 17 Atl. 26. Dec. 579. ^'Gormwn v. Com. 124 Pa. 536, 23 W. N. " Duncan v. Com. 4 Serg. & R. 449. C. 405, 17 Atl. 26; Davis v. Com. (Pa.) ^"Chapman v. Com. 5 Whart. 427, 34 4Cent. Rep. 711,7Atl. 194. But in Com.. Am. Dec. 565. v.Oorsora( 1848) 2 Para. Sel.Eq.Cas. 475, ^'' Com. v. WeiderhoU, 112 Pa. 584, 4 the judgment was arrested on motion. Atl. 345. "■ Belfrich v. Com. 33 Pa. 68, 75 Am. "' Staeger v. Com. 103 Pa. 469. Dec. 579. ''Staeger v. Com. 103 Pa. 469. '^a, Da/vis V. Com. (Pa.) 4 Cent. Rep. '" Chapman v. Com. 5 Whart. 427, 34 711, 7 Atl. 194. Am. Dec. 565. Arson under act of 1806. §§ 237, 338] INDICTMENTS FOR PARTICULA.R OFFENSES. 277 It is proper to join the charge of burning with intent to defraud an insurance company with other counts for arson.^* 237. Assault and battery. — This offense is a mere misdemeanor, but the use of the word "feloniously" in the indictment will not ren- der it defective. It will be treated as surplusage.^® The charge of assault and battery with intent to ravish is likewise a misdemeanor, and need not be charged to have been done "feloniously."*^ If the indictment charge assault and battery on a public officer, the fact that the party injured is such an officer must appear f^ but the indictment will be good as alleging simple assault and battery, and the court may refuse to quash, and proceed with the trial of that offense.** In case the offense is assault and battery with intent to kill, the assault and battery is the offense, and the extent of the injury only the aggravation of it, so the indictment will not be rendered defective by stating the injury disjunctively.** And in assault and battery with intent to steal from the person, the intent with which the as- sault was made must be alleged, but it is not necessary to state the property intended to be taken.*" 238. Attempts.— Section 50 of the act of March 31, 1860, provid- ing that persons indicted for crime may be convicted of attempts to commit the same, does not stand in the way of an indictment under the common law for an attempt to commit a crime.*-' The attempt follows the classification of the principal offense. If the latter be a felony, it should be charged that defendant attempted to do the felonious act, charging it as such.** It is not enough to say that a defendant attempted an offense. The particulars must be given, or it will be too uncertain. Thus, charging mere attempt to pick a pocket,*' or to commit sodomy, is bad.** Or, in alleging an attempt to commit murder, a failure to state that it was done "malicious- ly."*'' An indictment for an attempt to commit suicide will not lie in Pennsylvania, thf act not being a criminal offense.** ^* Com. V. Landis, 13 Pa. Super. Ot. Attempt to commit larceny from the 134. person. '''Com. V. Brush, 22 Pa. Co. Ct. 474. ''Com. v. Weiderhold, 112 Pa. 584, 4 "Stout V. Com. 11 Serg. & R. 177. Atl. 345 (attempt to commit arson); "Com. V. Cosier, 5 Northampton Co. Mears v. Com. 2 Grant Gas. 385 (at- Rep. 74. Quashed. tempt to commit rape) ; Haokett v. ''Com. V. Perry, 25 Pa. Co. Ct. 631, Com. 15 Pa. 95 (attempt to commit 10 Kulp, 360. burglary). ^ Scott V. Com. 6 Serg. & R. 224. " Randolph v. Com. 6 Serg. & R. 398. "Did bite or cut off the ear," etc. " Com. v. •/ , 21 Pa. Co. Ct. 623. " Rogers v. Com. 5 Serg. & R. 463. " Com. v. Brosk, 8 Pa. Dist. R. 638. » Com. V. Clarh, 25 Pa. Co. Ct. 349. «" Com. v. Wright, 11 Pa. Dist R. 144. 278 CRIMINAL AND PENAL PROCEDURE. [chap. xii. 239. Bawdy houses. — The lessor of a building who rents the same for use as a bawdy house is guilty of a misdemeanor, but a convic- tion for this offense cannot be sustained where the indictment fails to aver the leasing and the knowledge relative to the criminal design for which the property was leased.*'^ 240. Blackmail. — An indictment charging blackmail as a common- law offense cajmot be sustained. A statutory remedy has been pro- vided.^* 241. Blasphemy and profanity. — An indictment for blasphemy un- der the act of 1700 must allege that the words were spoken "profane- ljj'39 ^^ ^]^g same is true under the act of I860, which is identi- cal.*" If the blasphemy be charged as a common-law nuisance, it is an essential and an indispensable fact, which must necessarily be charged in the indictment, that the offense was public, and that the profanity was uttered in the presence, and within the hearing, of the citizens present.*^ 242. Bribery. — An indictment against a county commissioner for attempted bribery is sufScient if it allege he was duly elected and qualified, without stating that he was elected by the duly qualified voters of the county.*^ And a count under the act of April 29, 1874, charging that defendant, a councilman, "did unlawfully, directly and indirectly, offer and promise to give, etc.," is not bad for duplicity, since it is merely charging different phases of the same offense in the words of the statute.*' 243. Burglary and house breaking. — Burglary is committed when the entry occurs in the nighttime. A failure to so aver in the in- dictment is fatal, and being a defect of substance is not amendable.** In describing the building entered the words "mansion house" may be used in place of "dwelling house."*'' In charging the attempt to commit the offense, it is proper to charge that defendant tried to "fe- loniously and burglariously" enter a dwelling house, though the at- tempt itself is a misdemeanor, for the words "feloniously and burg- lariously" apply to the intent the prisoner had in view.*® Indictments under the act of 1863,*'^ for breaking in the day or "Com. V. Johnson, 4 Clark (Pa.) A. 353, 27 Atl. 843. Indictment 398. quashed. " Com. V. Walsh, 7 Lack. Leg. News, "Com. v. Barns, Legal Gaz. Rep. 455. 362. " Com. V. Silliman, 8 Lack. Leg. '" Medegraph v. Com. II Serg. & R. News, 9. 394. .Judgment of conviction reversed. "Com. v. Kaas, 3 Brewst. (Pa.) 422. *° Com. V. Spratt, 14 Phila. 365, 37 " Com. v. Pennock, 3 Serg. & R. 199. Phila. Leg. Int. 234. Demurrer sus- '" Hackett v. Com. 15 Pa. 95. tained. " Amended as to punishment March " Com,. V. Lirm, 158 Pa. 22, 22 L. R. 31, I90I, P. L. 49. §3 244-246] INDICTMENTS FOR PARTICULAR OFFENSES. 279 night with intent to commit a felony, should be drawn in the lan- guage of the statute, the act being charged to have been done "ma- liciously and wilfully," but the substitution of the word "feloni- ously" has been held not to be fatal.** The description of the property is sufficient if in the words of the act. Thus, to charge that defendant "did wilfully and maliciously enter the building of the Carnegie Steel Company, etc.," is sufficient. If the defendant desired more specific information as to the nature of the building, he could have obtained it by proper application to the court for a bill of particulars. Such exceptions cannot be taken ad- vantage of after the entry of a plea and trial.*® No allegation is re- quired as to whether the act was done in the daytime or in the night- time under the act of 1863.°° 244. Carrying concealed deadly weapons.— The indictment for this offense must allege that the weapons were concealed, and aver that they were carried "with tha intent therewith unlawfully and mali- ciously" to do injury to some person. If this is not charged, and a conviction be had, the verdict must be set aside, for no offense is al- leged.^^ 245. Concealing death of a bastard. — Under the act of 1794, now supplied by act pf March 31, 1860,®^ it was held that the indictment must show that the concealment was made "so that it might not come to light whether it was born dead or alive."^* A similar expression appears in the act of 1860. An averment must be made that the child is dead,°* which must not be left to implication.^® But the man- ner in which the woman endeavored to conceal the death need not be set forth.®* 246. Contempt. — An indictment for contempt in refusing to an- swer questions in a cause before a justice or alderman need not set forth defendant's reason for his refusal.®^ « Com. V. Ca/rson, 166 Pa. 179, 30 Atl. == P. L. 382, § 89. 985^ In Com. v. Graham, I Wilcox ''Com. v. Clark, 2 Ashm. (Pa.) 105. Rep. 209, it was held fatal, and after Judgment arrested, the evidence was in, the court directed " Boyles v. Com. 2 Serg. & R. 40. tie jury to acquit on motion of the de- "Douglass v. Com. 8 Watts, 535. It fendant. was here held insufficient to allege "that " Com. V. Johnston, 19 Pa. Super. Ct. the said A did endeavor privately to 241. Here petition for habeas corpus conceal the death of the said female to the superior court after conviction bastard," where there was no direct al- and sentence. legation of death. '°Oom. V. Carson, 160 Pa. 179, 30 Atl. "Boyles v. Com. 2 Serg. & R. 40. 985. " Com. V. Waylamd, 8 Lack. Leg, " Com. V. Oallagher, 9 Pa. Super. Ct. News, 22. 100, 43 W. N. C. 408. Sentence was im- posed by the lower court, but reversed. 280 CRIMINAL AND PENAL PEOCEDUEJ!. [ce&f. xa. 247. Conspiracy. — The gist of this offense consists in the combining and agreeing to do an unlawful act or to do a lawful cct in an unlawful manner. The indictment must therefore allege the con- spiracy with another. But if this is done, it is not necessary that the coconspirator be made a defendant.^* The allegation may be the agreeing with a person named and another unknown, in which case the acquittal of the person named will not prevent the passing of sen- tence on the one who has pleaded guilty.^® But it must charge the agreement of at least two, who may conspire together. Thus, an in- dictment alleging the agreement to be between husband and wife can- not be sustained.** The indictment for conspiracy to commit a statutory offense should allege the agreenient to do those acts which are the essential ingredi- ents of the crime. Thus, a eonspiracyto abduct a child should averthe agreement to take away a child under ten years of age from those hav- ing its legal custody, intending to deprive them thereof, or intend- ing to steal some article of apparel, or ornament, or other thing of value of use upon or about its person, as well as state the name and sex of the child.*^ "Though it may not be necessary in an indictment for conspiracy, so minutely to describe the unlawful act when it has a specific name which indicates its criminality, yet, where the con- spiracy has been to do an act prohibited by statute, the object which makes it unlawful can be described only by its particular features; and without doing so, it cannot be shown that the confederates had an unlawful purpose."®^ Conspiracy to commit fornication is well des- ignated by the term "illicit intercourse."^* Overt acts done in pursuance of the conspiracy need not be alleged, for the conspiracy is indictable if nothing be done in pursuance of it.'''* But they may be set forth.*'^ If it is done, and the acts show Uie impossibility of sustaining the conspiracy charged, the indict- ment will be held bad.** "Heine v. Com. 91 Pa. 145; Com. v. Com. 4 Pa. 210; Com. v. McKisson, 8 Demain, 3 Clark (Pa.) 487, Brigatly Serg. & R. 420, 11 Am. Dee. 630; Com. (Pa.) 441. V. Foreman, 1 Lane. Bar, No. 20; Com. ''Com. V. Edwards, 135 Pa. 474, 19 v. Eadley, 13 Pa. Co. Ct. 188. Atl. 1064. Sentence for costs. "Com. v. Foering, Brightly (Pa.) "Com. V. Allen, 24 Pa. Co. Ct. 65. 315, 4 Clark (Pa.) 29. "• Com. V. Myers, 146 Pa. 24, 23 Atl. "» Com. v. Guernsey, 8 Lack. Leg. 164. Judgment of conviction reversed. News, 13. Here the conspiracy was to " Hartmann v. Com. 5 Pa. 60. cheat and defraud, and the overt act " Com. v. Deschamps, Brightly's Di- charged in pursuance of it was the dia- gest, p. 487, Purdon's Digest, 10th ed. p. suading of witnesses from attendance 325. at court. "Heine v. Com. 91 Pa. 145; Clary v. § 248J INDICTMENTS FOR PARTICULAR OFFENSES. 261 The means to be employed to do an unlawful act by the conspira- tors need not be set forth, for they are not material ingredients of the offense."'^ If an executed conspiracy be charged, it would seem that the same particularity is required, and the means must be alleged, as in the indictment for the offense itself, though the decisions are con- flicting.®® If the conspiracy charged is the doing of a lawful act in an unlawful manner, it is, of course, necessary to show the unlawful means on the face of the indictment, so that an offense may appear. In unexecuted conspiracies it is not necessary to give a particular description of the property, which was intended to be secured,®* nor to set forth that any person was defrauded.'^* 248. Counterfeiting. — An indictment for counterfeiting the label of a workingmen's union is sufficient, which charges the offense sub- stantially in the language of the act of May 21, 1895, describes the instrument which was counterfeited by the name and designation by which it was known, and sets forth the fact of the registry with the secretary of the commonwealth.''-' The indictment under the iTith section of the Penal Code of 1860 is sufficient if the possession of the forged label or wrapper is charged substantially in the language of the act, and the intent in exactly the same words. And the bill is not rendered double by alleging in the first count the possession of genuine stamps with intent to use them to aid in the sale of goods in imitation of manufacturer's goods, and in the second the possession of counterfeit stamps, labels, and wrap- pers with like intent, since it is merely presenting different phases of the same offense.''^ An averment under this section that the wrappers in question were used on medicines "manufactured and sold by the company" is a sufficient allegation that the ovraer of the wrap- pers was a manufacturer. And the charging of the intent to use such labels in "vending the said goods, wares, and merchandise" in '^ Hazen v. Com. 23 Pa. 355; Com. v. Int. 420; Com. v. OUlespie, 7 Serg. & Hadley, 13 Pa. Co. Ct. 188; Com. v. E. 469, 10 Am. Dec. 475; the contrary Lutz, 9 Lane. L. Rev. 241, 5 Del. Co. is held in Com. v. Barger, 14 Phila. 368, Rep. 87; Twitchell v. ,Com. 9 Pa. 211; 37 Phila. Leg. Int. 274. Com. V. Quay, 7 Pa. Dist. R. 723 ; Com. " Com. v. Wilson, 1 Chester Co. Rep. V. Barger, 14 Phila. 368, 37 Phila. Leg. 538 (in which case a full review of the Int. 274, dissenting from Com. v. authorities is given) ; Com. v. Gold- Bracken, 14 Phila. 342, 37 Phila. Leg. smith, 12 Phila. 632, 35 Phila. Leg. Int. Int. 14, 8 W. N. C. 280. 420; Com. v. Galla-gher, 2 Clark (Pa.) »» Com. V. Bracken, 14 Phila. 342, 37 297. Phila. Leg. Int. 14, 8 W. N. C. 280 ; " Collins v. Com. 3 Serg. & R. 220. Uazen v. Com. 23 Pa. 355; Hartmann ""^ Com. v. Norton, 16 Pa. Super. Ct. V. Com. 5 Pa. 60; Com. v. McKisson, 8 423. Serg. & R. 420, 11 Am. Dee. 630; Com. ^^ Com. v. Eowells, 18 Pa. Super. Ct. V. Qalbraith, 6 Phila. 281; Com. v. 323. Goldsmith, 12 Phila. 632, 35 Phila. Leg. 282 CRIMINAL AND PENAL PROCEDURE. [chap. xii. imitation of those of the company is good, though there is no ante- cedent reference in the indictment to the goods manufactured by the defendant The words "the said" will be treated as surplusage.'^* 249. Cruelty to animals. — An indictment for cruelty to animals should sufficiently describe by name, color, or mark of identity the aii- imals maltreated, so as to inform the defendants distinctly as to the oifenses with which they ai-e indicted, in order that they may pre- pare themselves for trial. It is insufficient to designate them as "horses and other domestic animals."^* 250. Disorderly houses. — The gist of this offense consists in the acts complained of being a common nuisance to the public, and the indict- ment should so charge. If it is so alleged, but the jury returns a spe- cial verdict finding a disturbance to neighbors, sentence cannot be passed, for that is not the offense made punishable.^^ An indictment charging the defendant with keeping a disorderly and ill-governed house, and procuring men and women of evil name and fame, and of dishonest conversation, to frequent and come to- gether therein, at unlawful times, as well in the night as in the day, permitting them there to be and remain, drinking, tippling, and mis- behaving themselves to the great damage and common nuisance of all the liege citizens of the commonwealth, etc., is sufficient''* 251. Disturbing public meetings. — An. indictment charging the of- fense of disturbing a meeting held for social and moral purposes is sufficient when the offense is set forth in the exact language of the Code. It is not necessary that either the specific purposes for which the meeting was held or the nature of the disturbance should be set forth with particularity or detail. A bill of particulars will give the defendant notice of the specific matters, which the commonwealth may prove against him, if the indictment does not furnish sufficient information.''''' If the indictment show on its face that no such crime has been com- mitted, it will be quashed. Thus, the alleging of the disturbance " Com. V. Eowells, 18 Pa. Super. Ct. then and there lawfully assembled at a 323. certain church, known as the Manor " Com. V. Frescoln, 1 1 Lane. L. Rev. church in the township of Paint, county 161. of Clarion, for social and moral pur- '"^ Hunter v. Com. 2 Serg. & R. 298. poses, contrary, etc. For a similar de- ™ Com. V. Btewart, 1 Serg. & R. 342. soription in a summary proceeding be- " Com. V. Qennerette, 10 Pa. Super, fore a justice of the peace, under act of Ct 598. "Did wilfully and maliciously March 16, 1847, P. L. 447, § 4, which disturb and interrupt a certain meet- was held sufficient, see Com. v. Burk- ing of citizens and inhabitants being hart, 23 Pa. 521. §§ 253, 353] INDICTMENTS FOR PARTICULAR OFFENSES. 283 to be the singing by the regular choir of the church, contrary to the orders of the pastor and. rules of the church, is badJ* 252. Dueling^. — "In eases arising under the laws of this common- wealth for the restraint of the horrid practice of dueling it shall be sufficient to form an indictment generally, against either of the prin- cipals, for challenging another to fight with deadly weapons, and, not- withstanding it may appear on the trial that the defendant only ac- cepted the challenge, it shall be sufficient to convict and render him liable to the penalties of the law; and in lite manner an indictment against the seconds may be framed generally, for carrying and deliv- ering a challenge, and proof of the mere act of fighting, and the de- fendant being present thereat, shall be sufficient to convict the defend- ant upon an indictment so framed; and if the duel shall take place within this commonwealth, the mere fact of fighting shall be full and complete evidence of the charges, respectively, of giving or receiving, or of carrying or delivering a challenge, without other proof thereof."T9 2C3. Elections. — As in other cases, the indictment is sufficient if it charges the violation of the election law substantially in the words of the act of assembly.*" The information must be sufficient to sup- port the indictment. Thus, a complaint for conspiracy with persons named to make a false return will not be ground for a count for con- spiracy with unknown persons to prevent divers unknown persona from voting.*^ And the statement that more than 150 names were voted without stating any of them is insufficient.*^ A charge that the person whose vote was rejected was a qualified voter is sufficient, since the word "voter" includes "citizen."** And the allegation that the defendant "unlawfully and fraudulently" voted is good, since "fraud- ulently" includes "knowingly."** An indictment under the act of 1881 may contain a count charging a conspiracy to commit the acts forbidden therein.*^ In alleging the offense of betting on elections, it is sufficient to aver the betting that A. would be elected governor at an election to be held " Com. V. McDole, 2 Pa. Dist. R. 370, " Com. v. Hunter, 13 Pa. Co. Ct. 573, 10 Lane. L. Efiv. 119. 2 Pa. Dist. R. 707. ™ March 31, 1860, P. L. 427, § 23. »= Com. v. Miller, 2 Pars Sel. Eq. Gas. ''Com. V. Mouat, 14 Phila. 366, 37 480. Phila. Leg. Int. 254 ( indietment under ^' Com. v. Youlls, 5 Kulp, 231. 106th section of the act of 1839) ; Com. '* Com. v. Warner, 17 Pa. Co. Ct. 556. V. Maher, 16 Phila. 451, 40 Phila. Leg. " Com. v. Boyle, 14 Pa. Co. Ct 561, Int. ICO (for making false returns). 3 Pa- Dist. R. 591. 284 • CEIMINAL AND PENAL PROCEDURE. [chap. xil. on a given date, without positively averring that an election for gov- ernor was to be held on that date.^® The power to jointly indict officers of elections is discussed under Joinder of parties, § 230, anie, 254. Embezzlement. — "In any indictment for forgery, uttering, stealing, embezzling, . . . any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof."*^ Under this section it has been held sufficient to describe the property as "national bank notec for the pay- ment of $12,000."** And the use of the word "moneys" has been held enough.*® The description "divers notes called bank bills, treasury notes, and national bank notes, current money ... of the goods and chattels, property, moneys, and deposits of the said [bank], etc.," without stating the amount, was held good.®" It is a "well-recogTiized exception that counts for embezzlement by public officers need not have the same particularity in describing the funds embezzled or the persons from whom and' the times at which the money was received as is required in similar counts against private persons."®^ It would seem that if the property embezzled be not money, but securities, some facts should be given to designate them, such as their denominations."^ There should be an averment as to the ownership of the property embezzled.®* An indictment under § 114 of the Penal Code should set forth the nature of the transaction between the parties, and the purpose of the trust.®* The defendant must be described as a person within one of the classes made punishable in that section. The simple use of the word "broker" has been held sufficient,®® but the designation of de- fendant as an "agent," without stating such to be his business, was held bad.®® The same objection was made ground for arresting judg- *■ Sherban v. Com. 8 Watts, 212, 34 trial on motion in arrest of judgment, Am. Dee. 460. which is too late. " Act March 31, 1860, P. L. 427, § 17. " Com. v. fSchall. 6 York Legal Rec- "Gom. V. Leisemrinq, 11 Phila. 392, ord, 25 ; S. C. 5 York Legal Record, 137, 32 Phila. Leg. Int. 168. 9 Lane. L. Rev. 332. ™ Com. V. Scliall, 6 York Legal Record, ™ Com. v. Hag gel, 7 Kulp, 10, 6 York 24. Legal Record, 147. Indictment quashed °° Com. V. Hottenstein, 2 Woodw. Dec. for failure to allege. 477. Fourth count. °' Com. v. Fahnestook, 15 Pa. Co. Ct. " Beeber, J., in Com. v. Barge, 11 Pa. 598, 4 Pa. Dist. R. 297, 12 Lane. L. Rev. Super. Ct. 164. Not decided whether 52. indictment against tax collector must ™ Com. v. Shi^sler, 7 Pa. Dist. R. 344. state amount embezzled, or amount col- "° Com. v. Beehy, 3 Del. Co. Rep. 73, 3 lected from any particular person, for Lane. L. Rev. 358. the objection was not raised until after § 3.54J INDICTMENTS FOR PARTICULAR OFFENSES. 285 ment in Com. v. Newcomer,^'' but the supreme court in reversing said that the defect, if any, was formal, and must be taken advantage of before trial, and, if the evidence failed to show the defendant to be an "agent" within the meaning of the section, all the lovrer court could do would be to grant a new trial. A count under this section for embezzlement by the cashier of a bank must be quashed, as such a case is not therein provided for.** An indictment under § 125 may describe the defendant "as con- signee and factor,"®® and will be sufficient where the sale is charged distinctly enough to afford full notice of the offense for which he is to be tried.ioo A count under § 65 may charge different phases of the offense there- in provided for without being double.^"^ An indictment charging a school treasurer as an officer within the meaning of this section is good."2 Under the act of 1885,^"* providing for embezzlement by partners, it must be averred that the money came into the hands of the defend- ant as a copartner.^"* In an indictment under the act of 1889^°' for receiving deposits by officers of banks, knovdng the same to be insolvent, it need not appear that the money or security was converted by the defendant to his own use.^"® The indictment should allege the insolvency of the bank. It is not enough to allege this of a partner and set forth that defendant knew it.-'"'^ An allegation that defendant was engaged in carrying on a private bank is good.-"* In charges for embezzlement by clerks, servants, or other persons in the employ of another, the indictment may include distinct acts of embezzlement, not exceeding three, which may have been com- " 49 Pa. 478. Rev. 350, Affirmed in 4 Pa. Super. Ct. 1, " Com. V. Eottenstein, 2 Woodw. 14 Lane. L. Rev. 159. Though it seems Dee. 477. Second count. unnecessary, both of these indictments "" Com. V. Meads, 14 York Legal Rec- charged the reception of the deposit ord, 130. . with intent to convert. Contra, Com. ^"'Com. V. Kelly, 8 York Legal Rec- v. Delamater, 2 Pa. Dist. R. 118,— -held ord, 9. an actual conversion must be charged. "» Com. v. Mentzer, 162 Pa. 646, 29 "' Com. v. Schall, 5 York Legal Rec- Atl. 720. Receiving public moneys and ord, 137, 9 Lane. L. Rev. 332. Should converting them, with failure to pay also state the name of the depositor, over when demanded. and amount deposited. ""Corn. V. Morrissey, 86 Pa. 416. ^^ Com. v. Rockafellow, 163 Pa. 139, "'June 3, P. L. 60, § 1. 29 Atl. 757; Com. v. Smith, 11 Lane. L. "' Com. V. Teeter, 1 Lack. Jur. 28. Rev. 350, Affirmed in 4 Pa. Super. Ct. 1, Indictment quashed. 14 Lane. L. Rev. 159. The contrary was "'May 9, P. L. 145, § 1. held in Com. v. Delamater, 2 Pa. Dist. ^"^Gom. V. Rockafellow, 163 Pa. 139, R. 118. 29 Atl. 757; Com. v. Smith, 11 Lane. L. 286 CRIMINAL AND PENAL PROCEDURE. [chap. sii. mitted by him against the same master or employer, within the space of six calendar months from the first to the last of said acts.^"® This provision gives the right to include three acts in one count when with- in six months, and an averment that they have occurred vdthin that period must be made ; but such a defect must be taken advantage of before the trial, and not in arrest of judgment.^'** This section is ap- plicable only to embezzlements by the persons mentioned therein. It does not refer to the offense by a broker under § 114. In such case different embezzlements may be charged in different counts.-'^^ If the count is duplicitous in charging more than one offense, except as provided in § 28, it will be quashed.^^^ The averments must in all cases be definite and positive, and not vague. ■'^^ 255. Escape. — An indictment for an escape need not set out the of- fense with which the defendant was charged at the time of his alleged escape.^^* "Where the charge is allowing a voluntary escape by the keeper of a jail, it is unnecessary to aver that the defendant received the prisoners as keeper, when the indictment alleges they were in his custody, nor to state that keeper knew the prisoners were guilty, or that they were actually guilty, or had been convicted.^ ^* It was said in Com. v. Ramscy^^'^ that the pleader must state the offense whereof the prisoner stood charged when the indictment is dravsTi against an officer for allowing a voluntary escape, ■^■^'^ but it is probably otherwise when for a negligent escape. 256. False pretenses. — The indictment must show a pretense which consisted in the assertion of any existing fact, not a promise to per- form some act in the future. In case the latter appears, advantage may be taken of the defect in arrest of judgment, for the general verdict of guilty is a finding only oi the facts sufficiently pleaded.-'^* But, if there be both a false pretense and a promise, the alleging of ""Act March 31, 1860, P. L. 427, § Dec. 477. First and third counts de- 28. For description of property in fective on this account, such cases, see remainder of this sec- '" Com. v. Bcumsey, 1 Brewst. ( Pa. ) tion. 422. Two tests of the sufficiency of an "°CoTO. V. Bill, 2 Pearson (Pa.) indictment for a statutory offense are 432. here laid down. 1st. Does it furnish "' Oom. V. Shissler, 7 Pa. Dist. R. sufficient information and particulars 344 (ten counts for embezzlement) ; § to enable the defendant properly to pre- 28 applied to cashier of bank in Com. v. pare his defense? 2d. Is it sufficiently Hotienatein, 2 Woodw. Dec. 477. precise to protect him from a second "'Com. V. Koons, 1 Kulp, 134. prosecution? Charged the treasurer of a beneficial as- "' Weaver v. Com. 29 Pa. 445. sociation with the embezzlement of "° 1 Brewst. ( Pa. ) 422. divers sums from divers people amount- "' This was done in Weaver v. Com. ing in all to $1,200. 29 Pa. 445. "' Com. V. Hottenstein, 2 Woodw. "' Com. v. Moore, 99 Pa. 570. § aaej indictments for particular offenses. 287 both -will not take away the criminal character of the act, and the in- dictment will stand."* It must appear that there was an assertion of some fact, which, if true, would be entitled to credit, and, from its very nature, calculated to impose on a man exercising common pru- dence, foresight, and caution, and is the ground upon which credit is given.^2° An allegation of a breach of covenant is not sufficient,^*^ and the indictment is defective if it does not aver the securing of some written instrument or chattel, money, or other valuable security.'^'* The indictment must recite the matters stated by the defendant, deny their truth, and aver that they were known to be false by the defendant It must also state that a written instrument, or chattel, money, or valuable security was obtained, and that the false pretense was made for the purpose of obtaining it.^^^ It must appear what the false pretenses were.^^* The averment of defendant's knowledge of the falsity of the representations must be made,^^^ though the words "did falsely and designedly pretend" will be a sufficient allegation of this.126 "Where the obtaining of goods is alleged on a false representation as to the ownership of property, the indictment is not defective be- cause it does not state that the defendant represented it to be of suf- ficient value to pay for the goods.^^'' Nor need the indictment state that the party defrauded has made an effort to collect the money ob- tained. ^^^ Or when the pretense is made that only certain indebt- edness exists, and in fact $3,800 is owed to the wife of the defend- ^' Com. V. Wallace, 114 Pa. 405, 60 whether money was obtained as a loan Am. Rep. 353, 6 Atl. 685 (statement or gift, or as a depositary. Judgment that bank was salvent, whereas it was arrested. not, and also the promise that any fu- '^ Com. v. Frey, 50 Pa. 245 ; Com. v. ture deposits would not be used for past Oalbraith, 6 Phila. 281, 24 Phila. Leg. liabilities) ; Com. v. SMssler, 7 Pa. Int. 109; Com. v. Dennis, 1 Pa. Co. Ct. Dist. R. 344 (representation that A 278. In Com. v. Rosenberg, 1 Pa. Co. awed B, whereby money secured by C. Ct. 273, 3 Lane. L. Eev. 75, it is said in Also alleged promise of C to pay B and a dictum that this is unnecessary where a failure. The last was treated as sur- the words of the statute are followed, plusage. and Com. v. Frey is discussed and ex- •" Com. V. Getter, 19 Pa. Co. Ct. 248. plained. Here demurrer to indictment sustained, ^" Com. v. Adley, 1 Pearson (Pa.) 62. where defendant secured signature to a '^ Com. v. Rosenberg, 1 Pa. Co. Ct. tax collector's bond, on the alleged false 273, 3 Lane. L. Rev. 75. In Com. v. representation that it was a petition Usner, 7 Lane. L. Rev. 57, it did not ap- for an appointment. pear, but objection was not taken until ^ Com. V. Hoover, 6 Lane. L. Rev. after the trial, at -which defendant ad- 129. Representation that horse was mitted the statement was false. Mo- sound, tion in arrest of judgment overruled. »^ Com. T. Vsrier, 6 Lane. L. Rev. 121. '" Com. v. Fisher, 9 Phila. 594, 29 Obtaining credit on a book account. Phila. Leg. Int. 102. ^'^Com.y. Adley, 1 Pearson (Pa.) 62. ^Com. v. Shertser, 13 Lane. L. Rev. Did not aver knowledge of falsity, or 46. 288 CRIMINAL AND PENAL PROCEDURE. [chap, xit ant, need there be an averment that the wife has been paid or given a. preference.^^® Instruments of v^hich the prosecutor has been defrauded may be referred to by name and designation and need not be set out in fuU.^^** An indictment will be sustained which distinctly charges that defend- ant falsely represented that he had an interest in a certain partner- ship, and that by means of such false pretense he unlavsrfuUy obtained from a person named the latter' s signature to a certain written instru- ment commonly called a judgment note.^*^ Property obtained must be set out with reasonable certainty. Charging the receipt of "$17,000 in cash" has been held insuffi- cient ;^^^ or "twenty-four or twenty-five steers ;"^*^ or alleging the pretense to be the ownership of a sorrel horse, without further de- scription, or statement of value.^** An averment of the ownership of the property secured must also be given.^*® It is sufficient to allege that "the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to de- fraud any particular person."-^^® 257. Forcible entry and detainer. — As has been noticed, where a statute makes indictable two or more distinct acts connected with the same transaction, each of which may be considered as represent- ing a phase in the same event, they may be coupled in one count So, forcible entry and detainer may be,**'' though different acts, and a defendant may be acquitted of the forcible entry, and convicted of the forcible detainer.*** In stating the 'charge, "greater force must be averred than is ex- pressed by vi et armis." The words "and with a strong hand" should never be omitted. . . . These mords mean something more than a common trespass. They imply that the entry was accompanied with that terror and violence which constitute the offense. . . . The same description and degree of force is necessary to constitute a for- cible detainer as a forcible entry."*** The indictment must aver a prior possession of the premises by the ""Coot. V. Sfterteer, 13 Lane. L. Rev. 46. "*Com. v. Stoner, 14 Lane. L. Rev. ""Act March 31, 1860, P. L. 427, § 17. 182. '"Com. V. Sober, 15 Pa. Super. Ct. ""Com. v. Graham, 3 Kulp, 289, 1 520. The pretenses set out in detail Pa, Co. Ct. 282, 2 Del. Co. Rep. 336. did not charge separate oflfenses, and "° Act March 31, 1860, P. L. «= Com. V. BoKihop, 2 Pa. Super. Ct. '»' P. L. 196, § 3. 294. '"* Com. V. Buntzinger, 35 Pittsb. L. "' Com. V, Searle, 2 Binn. 332, 4 Am. J. 364. Dec. 446. ^ Heikes v. Com. 26 Pa. 513. '" Com. V. Cullen, 13 Phila. 442, 36 "° Com. v. Sentman, 12 Lane. Bar, 191. Phila. Leg. Int. 264. Forging writ of Judgment arrested, fieri facias in the hands of the sheriff. "" Com. v. Menefce, 2 Del. Co. Rep. »"a 1 Smith's Laws, 4. 5S, 14 W. N. C. 170. '^'' Ream v. Com. 3 Serg. & R. 207. 292 CRIMINAL AND PENAL PROCEDURE. [ohap. xii. If bastardy is charged, there need be no distinct allegation that a child was born, for the use of that word implies that fact.^'^^ Prior to the act of 1860 it was held that a failure to aver the sex of the child born was a fatal defeet.^''^ The only decision since the Penal Code of 1860 holds it to be unnecessary, but, even if necessary, to be amend- able during the trial. ■^''* Though distinct offenses, the bastardy is rather an aggravation of the fornication. Both may be joined in one count, as can adultery and bastardy,^^^ or rape and bastardy.^''® A count for rape will sus- tain a verdict of fornication.^''"' Though better practice to join in one indictment, a conviction on one bill for adultery, and on a second bill for bastardy, has been sustained."^ The indictment is good if found in the county where the child is born, though the facts show the commission of a more serious offense in connection with the fornication which took place in another coun- ty.^''* And the court will sustain the verdict though a more serious offense appears to have been committed.^^" ™ Gorman v. Com. 124 Pa. 536, 17 sequent legislation, are here fully dis- Atl. 26; Com. v. Wentz, 1 Ashm. (Pa.) cussed. 269; Com. v. Menefee, 2 Del. Co. Eep. ""Gorman v. Com. 124 Pa. 536; Dun- 55, 14 W. N. C. 170. can v. Com. 4 Serg. & R. 449. "^Com. V. Pintard (1807) 1 Browne ™ Com. v. Lewis, 140 I'a. 561, 21 Atl. (Pa.) 59. This case seems largely to 501. On whicli bill there may be a con- rest on the practice of the court to im- viction of fornication and bastardy, pose different sentences in case of male '" C'om. v. Parker, 146 Pa. 343, 23 Atl. and female children, and the charge, as 323. A constituent offense, laid in the indictment, should accord "' ^"^^ ^^f""/^^ ^^- ^- ^- ^^^' *^ with the sentence of the court (note ^^l^/, '^^^- „ ' -ir . „^ t, r. ru. , T3 i 1 c<- /-( 1 Com. V. Davidhetser, 20 Pa. Co. Ct. by ■Reportev). S^mmons v. Com. 1 goo. Statutory rape. Kawle, 14^ (IbZJ). *■» Com. v. Kommerdmer, 165 Pa. 222, '"Com. V. Cferwft/ 26 Pa. Co. Ct. 121. go Atl. 929. Convicted of incestuous In this case a blanli had been left in fornication and bastardy. Judgment the indictment. After jury sworn, the was arrested because the evidence bill was amended by inserting the sex. showed incestuous adultery and bas- The earlier cases, and the effect of sub- tardy. Reversed. CHAPTEE XIII. INDICTMENTS FOR PAETICULAR OFFENSES—CONTINUED. 260. Frauds. 261. Gambling. 262. Game. 263. Hawking and peddling. 264. Homicide. 265. Involuntary manslaughter. 266. Indecent exposure. 267. Kidnapping. 268. Labor laws. 269. Larceny. 270. T larceny by bailee. 271. Larceny by clerk. 272. Larceny from person. 273. Libel. 274. Liquor laws. 275. Lotteries. 276. Malicious mischief. 277. Mayhem. 278. Mutilation of bills. 279. Negligence or misconduct of railroad employee*. 280. Nuisance. 281. Obscenity. 282. Obstructing justice. 283. Ofiicial misconduct. 284. Perjury. 285. Pure food laws. 286. Eape. 287. Receiving stolen goods. 288. Robbery. 289. Seduction. 290. Threatening letters. 291. Violating regulations. 260. Frauds. — Common-law dieats are indictable, but it must be set fortb that the cheating was done by false weights, tokens, etc., which were calculated to deceive the public at large, and the object of defrauding others must have been successful.* The subject-matter ^ Com. V. Steen, 1 Pa. Super. Ct. 624 where it does not allege the actual de- (an indictment charging the defrauding frauding) ; Com. v. Wood/run, 4 Clark of miners of coal by false weights is bad (Pa.) 207 (the use of a false letter with 293 294 CRIMINAL AND PENAL PROCEDURE. [chap. xui. of the charge laid in the bill must not be cheating of land or the title to it, for such offense is not indictable at common law.^ Indictment for frauds on hotel or boarding-house keepers under the act of April 20, 1876, should set forth the false pretenses, and not charge the offense in the words of the act alone. This is in anal- ogy to indictments for false pretenses to which referenc3 is made by the court.^ A bill framed under act of June 12, 1878, making it criminal to omit, with intent to defraud, to make a full entry in the books of a corporation by an officer thereof, of corporate money received by him as such, must aver that the money was obtained by the defendant as such officer, and an omission to make a full entry.* An indictment for fraudulent insolvency under the act of April 4, 1798, was held fatally defective which did not allege the fraudulent concealment of defendant's estate "thereby to secure the same" or "to retrieve or expect any profit, benefit, or advantage thereby," as well as the time and place of concealment.® Under the subsequent legis- lation it has been held necessary to state the time and place of the of- fense.® 261. Gambling. — The act of March 11, 1834, '^ relating to gambling, contemplates a summary conviction by action of debt to recover a pen- alty, and not an indictment. If such is found, it will be quashed.* 262. Game. — An indictment under act June 3, 1878,' for killing or having in one's possession insectivorous birds, lies when a proceed- ing has first been had before a justice, a fine imposed, a refusal to pay, and a binding over for court. The bill may charge in one count the killing, and in another the unlawful possession.^" 263. Hawking and peddling. — The remedy provided by the a'^; of March 9, 1889, for hawking and peddling without a license, is by ac- tion for the penalty. An indictment will therefore be quashed.^^ one person does not indicate a general ° Com. v. Gronin, 16 Phila. 500, 41 intent to defraud the public) ; Com. v. Phila. Leg. Int. 145. Date laid in Gallagher, 2 Clark (Pa.) 297 (the en- blank bad. tering of a bond with intent to cheat ' §§ 18 and 19. certain creditors is not sufficient though ' Com. v. Conrad, 25 Pa. Co. Ct. 32, a count for conspiracy was sustained. 10 Pa. Dist. R. 342, 18 Lane. L. Rev. This offense was committed prior to the 191. act of July 12, 1842) . • P. L. 160. ' Com. V. Woodrun, 4 Clark (Pa.) 207. ^'' Com. v. Boettcher, 24 Pa. Co. Ct. " Com. V. Dermis, 1 Pa. Co. Ct. 278. 456, 10 Kulp. 155, 14 York Legal Rec- * Com. V. Flecker, 17 Pa. Co. Ct. 671, ord, 134, 10 Pa. Dist. R. 101. 8 Kulp, 225. ^'■Gom. v. Stiles. 7 Pa. Co. Ct. 665; " ICenpublica v. Tryer, 3 Yeates, 451. Com. v. Winslow, 7 Pa. Co. Ct. 667. § 264] INDICTMENTS FOR PARTICULAR OFFENSES. 205 The feature of the local act of May 18, 1866,1^ allowing discrimina- tion, was cured by the act of March 14, 1867,^^ and an indictment framed under it was held good.-'* 264. Homicide. — It was formerly necessary for the indictment to set forth the day and date of the stroke, and of the death, the weapons used, and the manner in which the stroke causing death was inflicted. Illustrations of such descriptions are found in the following cases.-'* In such indictments to charge that defendant with a certain stone which he held, in and upon the right side of the head of the deceased, feloniously did cast and throw, and with the stone aforesaid, the de- ceased in and upon the right side of the head feloniously did strike, sufficiently alleges that defendant threw the stone and struck the de- ceased.^® To aver deceased was assaulted on a certain date and lan- guishing did live until that date, when he died, was held not repug- nant, since the day may be divided into portions, and, even if not, the words could be treated as surplusage.-''^ To allege a blow on one day, and languishing did live until the next day, was held sufficient to charge that the death was the result of the mortal wound.-'® And a conviction for murder was sustained where the defendant was charged with putting poison in a cup, which the deceased drank, without spe- cially stating that the accused knew it was poison, or that he gave it to deceased to drink.^® But judgment was reversed where a convic- tion was had on an indictment charging that A. "feloniously, wilfully, and of his malice aforethought, did raake an assault, . . . and by the striking, kicking, and knocking to the ground of the said Benjamin Atkins, several mortal bruises, etc.," since the technical and essential epithets were not applied to the "striking, kicking, bruis- ing, and knocking."^'* By the Penal Code of 1860 it was provided that "in any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient, in every indictment for murder, "P. L. 1097, applying to Bedford, ^' White v. Com. 6 Binn. 179, 6 Am. Cumberland, Franklin, Fulton, and Dee. 443. York counties. "Pennsylvania v. Bell, Addison (Pa.) " P. L. 459. 156, 1 Am. Dec. 298. " Com. V. Shaffer, 128 Pa. 575, 18 Atl. "i«te v. Com. 29 Pa. 441. 390. " Com. V. Earle, 1 Whart. 525. ^^ Pennsylvania Y. Bell, Addison (Pa.) ^ Respuilica v. Honeyman, 2 Dall. 173, 1 Am. Dec. 298; Lute v. Com. 29 (Pa.) 228. Pa. 441; White v. Com. 6 Binn. 179, 6 Am. Dec. 443; Com. v. Earle, 1 Whart. 625. 296 CEBUNAL AND PENAL PROCEDURE. [chap. xm. to charge that the defendant did feloniously, wilfully, and of his mal- ice aforethought, kill and murder the deceased; and it shall be suffi- cient in every indictment for manslaughter, to charge that the de- fendant did feloniously kill and slay the deceased."^^ This proviaion is not in conflict with the constitutional right of the defendant to be informed of the nature and cause of the accusation against him.^^ The "nature and cause" of a criminal prosecution is sufficiently averred by charging the crime alleged to have been committed. This must always be done. The "mode or manner" refers to the instru- ment with which the crime was committed, or the specific agency used to accomplish the result. It is not necessary to aver either of these in the indictment.^^ "It is not necessary, to constitute a good in- dictment under our statute, that the weapon used should be averred, nor the manner of the killing; before arraignmeint, if it be made to appear to the court that any injustice is likely to be done the prisoner because of vagueness of the indictment, a bill of particulars may be ordered ; this, not because the prisoner has a right to demand it, but becatise the court, after trial, on proof of surprise or injustice in con- sequence of the absence of specific averment as to weapon and man- ner of killing, would set aside the verdict and grant a new trial. "^* The indictment is not defective in failing to allege that the deceased was living at the time the assault was made.^^ Even before the act of 1860, it was held that the failure to allege that the crime was com- mitted in perpetration of burglary would not be bad where it was, and evidence could be introduced to prove it.^® Attempts to commit murder should be charged so that the court could say it would be murder if the crime had been fully consum- mated.^'' The attempt, to be indictable, must be to commit a homi- cide made punishable. Attempt to commit suicide is not such.^* A count for manslaughter may be joined with one for murder, and ''Act March 31, 1860, P. L. 427, § right existed to demand a specification 20. of the evidence to be adduced by the "" Cathcart v. Com. 37 Pa. 108 ; Com. commonwealth. V. Tmtchell, 1 Brewst. (Pa.) 551. In '''Turner v. Com. 86 Pa. 54, 27 Am. this case an allocatur was refused by Rep. 083. the supreme court (see p. 610) and by "Com. v. Flanagan, 7 Watts & S. 415. the United States Supreme Court (sec "Com. v. Brosh, 8 Pa. Dist. R. 638. p. 611) when applied for on this ground. It must appear that there was malice ^ Oeorsen v. Com. 99 Pa. 388; Gamp- aforethought. Under § 82 of the Penal lell V. Com. 84 Pa. 187, 199. Code, it must appear that the attempt, "Com. V. Buccieri, 153 Pa. 535, 547, if completed, would have been murder 26 Atl. 228. Here a bill of particulars in the first degree. Something more was refused. There was no allegation than the words of the act is required, that the prisoner was surprised, and no ™ Com. v. Wright, 11 Pa. Dist. R. 144. §§ 265-269f INDICTMENTS FOR PARTICULAR OFFENSES. 297 it may allege a prior conviction for that offense, so that upon ver- dict of guilty a double punishment may be imposed.^® 265. Involuntary manslaughter. — "In any indictment for involun- tary manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for involuntary man- slaughter to charge that the defendant did unlawfully kill and slay the deceased."*" Wilful and involuntary manslaughter may be joined in the same indictment.*^ But the indictment for murder will not sustain a conviction for this offense.*^ And an acquittal of mur- der will not bar a subsequent prosecution for it.** The offense as provided in § Y9 is a technical misdemeanor. It is no ground to quash the indictment that it do.es not appear by the rec- ord that leave was given the district attorney to waive the felony, which the facts showed, in submitting the bill to the grand jury.** 266. Indecent exposure. — See Obscenity, § 281, infra. 267. Kidnapping. — Under the statute forbidding the kidnapping of negroes, an indictment which omitted the words "by force and vio- lence" as set forth in the act was held fatally defective.*^ An indict- ment for conspiracy to kidnap a child under § 94 of the act of 1860 is bad, which does not aver the name or sex of the child and that it was under the age of ten years, and allege an intent to deprive its par- ent or other person having lawful charge of it, of its possession, or to steal any article of apparel, or ornament, or other thing of value or use upon or about its person.*® It is not improper to join one count for harboring and concealing a child with knowledge that it was enticed away, with one for kid- napping.*'' 268. labor laws. — An indictment under the act of 1897,** passed "to regulate the employment and provide for the health and safety of men, women, and children in manufacturing establishments, etc," is sufficient in form when the offense charged is set out in the exact words of the act of assembly creating the offense.** 269. larceny. — It is unnecessary that an indictment for larceny should aver an intent, on the part of the defendant, to deprive the ^Kane v. Com. 109 Pa. 541. '* Com. v. Mellert, 2 Woodw. Dec. 288. "Act April 28, 1871, P. L. 244, § 1. '^ Hamilton v. Com. 3 Penr. & W. 142. '•Act March 31, 1860, P. L. 382, § "'Com. v. Myers, 146 Pa. 24, 23 Atl. 79. 164. ^Walters v. Com. 44 Pa. 135; Com. '"Com. v. Westervelt, 11 PhUa. 461. V. Gable, 7 Serg. & R. 423. "April 29, P. L. 30. "HUands v. Com. 114 Pa. 372, 18 W. "Com. v. Beatty, 15 Pa. Super. Ct. N. C. 437, 6 Atl. 267. 5. 298 CRIMINAL AJSTD PENAl, PROCEDUHE. [ohap. xiii. owner pernianeaitly of his property and to convert it to the taker's own use, against tlie will of the owner.*" The property taken, and the ownership thereof, must be alleged. In case the object stolen be a writing, it is sufficient to describe the instrument by the name or designation by which it is usually known.*^ Since the Penal Code,*^ the difficulty theretofore experienced in va- riance between the proof of property and its ownership, and the evi- dence given at the trial, is largely abrogated, amendment to fit the proof being allowed. It is not sufficient to describe the property taken as "one promissory note,"*^ or one "due bill of $15,"** or "sundry promissory notes of the value of $80,"*^ or promissory notes of a bank, not alleging as in the act that they were for the payment of money,** or check of $100, without averring it to be the "check of or on any bank."*'' Bank notes of a corporation need not be alleged to be due and unpaid, nor need it be stated that the corporation is in- corporated.** Under the act of 1860 allowing amendments in case of variance, it is too late to object to the incorrect description in ar- rest of judgment.*^ The ownership of the property must be alleged. It may be charged in one count as that of A, and in another as that of B, to meet va- rious phases of proof.^" A variance is amendable. ''^ Before the act of 1860 such a variance was fatal.^^ It cannot now be taken advan- tage of in arrest of judgment.^* As has been noticed before,^* the larceny of various articles stolen from one person at the same time,^^ or of different articles from dif- ferent persons as a part of one transaction,®® may be charged in one count. But separate larcenies from different persons occurring at " Com. V. Butler, 144 Pa. 568, 24 Atl. "° Com. v. DolUns, 2 Pars. Sel. Eq. 910. Cas. 380. "Act March 31, 1860, P. L. 427, § 17. "■ Rosenlerger v. Com. 118 Pa. 77, 11 " § 13. Atl. 782 (joint ownership alleged. *" Com. V. Henry, 2 Brewst. (Pa.) 566. Amended to charge part of the property " Com. V. Byerly, 2 Brewst. (Pa.) 588. as belonging to A and part to B) ; Com. '" Steioart v. Com. 4 Serg. & K. 194. v. Livingston, 18 Pa. Co. Ct. 236, 5 Pa. ■"CoTO. V. Boyer, 1 Binn. 201. Dist. R. 666, 27 Pittsb. L. J. N. S. 153. "Com. V. Shissler, 7 Pa. Dist. R. 341. (Charged as property of A. Amended '" M'Laughlin v. Com. 4 Rawle, 464. to read property of a partnership). Contra, Spangler v. Com. 3 Binn. 533, ''Com. v. Martin, 5 Clark (Pa.) 245. which was framed under act of 1810, "' Com. v. Living.fton, 18 Pa. Co. Ct. repealed before the case of M'Lanighlin 236, S. C. 5 Pa. Dist. R. 666, 27 Pittsb. V. Com. 4 Rawle, 464. L. J. N. S. 153. *» Com. V. Moorly, 8 Phila. 615. In- "* See Duplicity, § 217, supra. dictment "stereotype metal," proof ^ Com. v. Driesbach, 29 Phila. Leg. "stereotype plates." But see Com. v. Int. 333, S. C. 1 Luzerne Leg. Reg. 543. MoManiman, 15 Pa. Co. Ct. 495. "Fulmer v. Com. 97 Pa. 503. §§ 270-373] INDICTMENTS FOR PARTICULAR OFFENSES. 299 different dates cannot be, and the oommonwealth will be compelled to make an election.^'' An indictment for assault with intent to steal from the pocket need not state the goods or moneys intended to be stolen.®* 270. larceny by bailee. — An indictment charging larceny by bailee need not set out the facts and circumstances of the bailment.®® 271. Larceny by clerk. — It is sufficient in an indictment for lar- ceny by a clerk to aver "being then and there in the employ of the prosecutor, as clerk, collector, and agent, did, by virtue of his said employment, receive and take into his care, custody, and possession, for and in the name of his employer, a lot of cigars of the value of , of the goods, moneys, and chattels of his said employer, and then and there did fraudulently embezzle and feloniously steal, take, and carry away the same," etc.^" s 272. Larceny from person. — A count for larceny from the person is good which charges simple larceny, to which is added that the prop- erty was stolen "from the person of A., contrary," etc.®^ 273. Libel. — "When language of the character described in the stat- ute is applied to a person by name, there can be no question of its meaning or application. In such case it is only necessary, in an in- dictment, to identify the prosecutor as the person named by an aver- ment that the language was published of and concerning him. But where the language does not necessarily tend to blacken character or expose to public hatred, contempt, or ridicule, or where the person to whom it refers is not named, it becomes necessary to so frame the indictment as to show the defamatory meaning of the language and its application to tbe prosecutor." ""When the publication is not directly defamatory of any person the pleading must indicate its meaning, and to whom it refers, and for this purpose the essentials of a count are (1) an inducement, set- ting forth sufficiently the extraneous matters which, it is alleged, give the language the meaning or application contended for; (2) an adequate colloquium, showing this meaning or application; (3) an innuendo declaratory of the sense in which, it is alleged, the language '' Com. V. Shissler, 7 Pa. Dist. R. 341. own use, etc.," was held a sufficient Four larcenies in four counts. count. '''Rogers v. Com. 5 Serg. & R. 463. °° Com. v. Lovegrove, 10 York Legal "» Com. V. Baturin, 22 Pa. Co. Ct. 161. Record, 159. "That the said Myer Baturin ... "' Com. v. Mills, 3 Pa. Super. Ct. 161. being then and there the bailee of the Such a count is not turned into one for goods and chattels, moneys and property robbery by the mere use of the words aforesaid, fraudulently and feloniously "with force and arms." did tal:e and convert the same to his 800 CRIMINAL AND PENAL PROCEDURE. [chap. xiii. -.vas used. These, as a whole, must contain everything necessary to make the publication intelligible in the sense thus imputed to it, and to show its defamatory character with respect to the person to whom it is alleged to refer."**" Where the alleged libel is, in itself, and without reference to ex- traneous matter, fairly susceptible of the meaning attributed to it by the innuendoes, no inducement is required."* But it is otherwise when the extrinsic facts must be depended on to give the meaning contended for. Thus, where the injury consists in a libel which in- jures the credit of a business man, it should be alleged that he was in business at the time of publication."* And in a criminal libel on otBcers of ths state, the official character of the persons charged to have been libeled, with their duties, and the mode in which their performance of them by law is directed, must be stated.'^ The colloquium must show the application of the language.*® The indictment will not be rendered defective by inserting the colloquium after the alleged libelous words, if it is sufficient to connect the equivocal phrases with the external circumstances, and thus to show that they were intended to libel the person named.®^ Whether, in the light of the inducement and coUoquiimi, the lan- guage will fairly bear the meaning ascribed to it by the innuendo, that is to say, whether it is to be pronounced .a libel, is to be deter- mined by the court; whether that meaning was intended by the de- fendant is to be determined by the jury.®^ It is error for the court to quash the indictment if there be anything on the face of the in- dictment to give the meaning contended for."® In determining whether the innuendo is good, the court will adopt the sense which the world at large would ascribe to the words used.''" The defama- tory words must be indicated as referring to some ascertained or as- certainable person. If the words used contain no reflection on any particular individual, no averment can make them defamatory, nor can it make the person certain who was uncertain before.''^ The indictment must set forth the very words of the libel, and not ""Com. V. SvMllow, 8 Pa. Super. Ct. '■''Com. v. Wolfinger, 16 Pa. Co. Ct. 539. 257, 7 Kulp, 537. ™ Com. V. Warnagtris, 8 Kulp, 412. "^ Com. v. Swallow, 8 Pa. Super. Ct. " Com. V. Stacey, 8 Phila. 617. 539. "■ Com. V. Swallow, 8 Pa. Super. Ct. °= Com. v. Keenan, 67 Pa. 203. 539. '" Com. V. Chambers, 15 Phila. 415, 39 "Com. V. Swallow, 8 Pa. Super. Ct. Phila, Leg. Int. 208; Com. v. Wolfinger, 539. That the alleged libel was pub- 7 ICulp, 537, 16 Pa. Co. Ct. 2.57. lished of and concerning the persons " Com. v. Earris, 5 Pa. Dist. R. 671. named in the indictment while in the Here an article written in answer to one performance of their ofScial duties. signed "Cynic." § 274] INDICTMENTS FOR PARTICULAR OFFENSES. aOl the mere siatstance.''* Where there is a variance between the words alleged and those set out, the defendant naust be acquitted.''* But it has been held that where the libel consisted in an effigy, a mere mis- reeital of the words appearing thereon would not be fatal. ^* The indictment must charge the publication of the libel. Sending to the editor of a newspaper is an implied request to publish. ''* It is not necessary to aver a special intent to provoke the prosecu- tor and excite him to a breach of the peace.''® Amendments to the innuendo of an indictment to show knowledge or understanding on the part of the public are not within the pur- view of § 13 of the procedure act of 1860.''^ It has been said that the inducement is probably amendable.''^ As a demurrer to the indictment admits the facts charged therein, the court will consider the libel as malicious in such proceeding, where so charged in the bill.''® 274. Liquor laws. — To aver in the indictment that the defendant did "sell and cause to be sold" certain liquors will not render the count double.®" Nor will the charging the keeping of a tippling house and selling liquor without a license in one count.®^ 'Nor stat- ing the selling of "liquors or some admixtures thereof.®^ l^or charg- ing the sale of an intoxicating liquor called ambrosia.®* It is neces- sary that the allegation be made that the sale was without a license, but to whom the liquors were sold need not be given.®* !N"or need it when the offense is a sale on Sunday.®^ In charging a sale to minors the names should be given, if known, or if unkno^vn it sbould be so stated, and the fact of minority alleged.®® Knowledge of minority, or that person to whom the sale was made was of intemperate habits, should be averred.®'' " Com. V. Sweney, 10 Serg. & R. 173. making false and malicious affidavit, "Com. V. Haines, 4 Clark (Pa.) 17. and filing same of record. Effigy called a "Paddy," was a Shelah. '" Com. v. Schoenhutt, 3 Phila. 20, 1.5 "Johmon v. Com. (Pa.) 22 W. N. C. Phila. Leg. Int. 4. 68, 13 Cent. Kep. 80, 14 Atl. 425. '^ Com. v. Baird, 4 Serg. & R. 141; "Com. V. Wolfinger, 7 Kulp, 537, 16 GenUnger v. Com. 32 Pa. 99. Pa. Co. Ct. 257. '-Com. v. Bermett, 1 Pittab. 261. " Com. V. Wolfinger, 7 Kulp, 537, 16 »" Com. v. Beldham, 15 Pa. Super. Ct. Pa. Co. Ct. 257, possibly otherwise, 33. where sent direct to the prosecutor and " Com. v. Schoenhutt, 3 Phila. 20, 15 published to no one else. Phila. Leg. Int. 4. '"Com. V. Harris, 5 Pa. Dist. R. 671. "^ Com. v. Liehtreu, I Pearson (Pa.) "Com. V. Stacey, 8 Phila. 617. To 107. show that defendant was in business "Com. v. Liebtreu, 1 Pearson (Pa.) and thus his credit might be injured. It 107 ; Com. v. Connolly, 2 Legal Opinion, does not appear that it was done. 70. "Com. V. Culver, 1 Clark (Pa.) 361. "Com. v. Liebtreu, 1 Pearson (Pa.) Here indictment againet attorney for 107. 803' CRIMINAL AND PENAL PROCEDURE. [caAP. xiii. 275. Lotteries. — The indictment for selling lottery policies must show on its face that the lottery was illegal.** A description of the lottery should be given, and the number of tickets sold.** The per- son to whom sold and a description of the ticket should also appear, but it will be sufficient if the bill sets forth that a description of the lottery and of the ticket cannot be given, because unknown to the grand jurors.®" 276. Malicious mischief. — The indictmont need not aver that the act was mischievously done. It is sufficient if the act be charged to have been "unlawfully, wilfully, maliciously, and wantonly" done.*' Malicious mischief to animate property may be punished without averring the ovsmership of it.*^ "Inanimate property, however, can be injured only in the title, and hence, when this is the subject of indictment for malicious mischief, the right of possession or of prop- erty must be laid in somebody."** An indictment for cutting timber trees on the land of another should name the owner of the land on which they Were growing, or that the owner was unknown to the jurors.** The land must be de- scribed, but an allegation that it was situated in a certain township of the county was held sufficient.*^ The trees are sufficiently designat- ed under the act of 1700, by the words "twenty oak, timber trees."*' Under the act of 1824, it was held that the indictment must allege the actual cutting of trees, not the mere employing of others to do so.*'^ This act is now supplied by § 152 of the Penal Code of 1860. The act of 1840 made it an oilense to receive trees known to have been cut contrary to the act of 1824. To sustain an indictment un- der it, the substantive offense must -first be alleged, and then the knowingly receiving.** 277. Mayhem. — The offense is sufficiently described by charging that the defendant "voluntarily, wickedly, maliciously, unlawfully, and feloniously did gouge, pull and put out" a right eye "with in- " Com. V. Manderfield, 8 Phlla. 457. cious mischief in dismantling and tear- The first two counts referred to a "prize ing up a certain building. A failure in a lottery," and this was held suffi- to allege ownership was held ground for cient to show the illegality. The last reversal, after conviction, three did not, and a demurrer to them "Com. v. Bechtol, 4 Clark (Pa.) 300. was sustained. '" Moyer v. Com. 7 Pa. 439. "Com. V. Gillespie, 7 Serg. & R. 469, "Com. v. Hoover, 1 Browne (Pa.) 10 Am. Dee. 475. Appx. 25. "Com. V. Manderfield, 8 Phila. 457. "Com. v. Bechtol, 4 Clark (Pa.) 306. "' Com. V. Cunningham, 1 Pa. Dist. R. °» Com. v. Bechtol, 4 Clark (Pa.) 306. 573. The provision of the act of 1840 is now " Respublica V. Teischer, 1 DaH. (Pa.) supplied by § 152 of the Penal Code of 335. Killing of horse. 1860. "Davis V. Com. 30 Pa. 421. Mali- g§ 27&-280] INDICTMENTS FOR PARTICULAR OFFENSES. 308 tent, in so doing, to maim and disfigure." It need not allege the actual maiming and disfiguring.^" The technical epithet "feloni- ous" must be applied to the battery in mayhem, as in murder.^**" Under the first clause of § 80 of the act of 1860, relating to mayhem, it is necessary to charge the defendant with "lying in wait," and un- der the second clause to allege the act to have been done "volunta- rily."i" 278. Mutilation of bills.— The act of May 6, 1887, made it a mis- demeanor to mutilate, destroy, tear down, or remove any show bill, placard, programme, poster, or advertisement upon any rail fence, billboard, or other structure. This does not cover the destruction of a constable's sale bill, and an indictment for such act, framed under it, cannot be sustained. Such may be a common-law offense, and indictable as such, though the bill was rejected in the only case be- cause of the indefiniteness of the charge in not naming the constable, or stating the process, or the policy. -""^ 279. Negligence or misconduct of railroad employees. — An indict- ment framed imder the act of March 22, 1865,^"* providing a penalty where death results from the negligence or disobedience of railroad employees, need not set forth the rules of the company which the de- fendant is alleged to have disobeyed, nor of what the negligence or misconduct consisted. As in other cases, it is sufficient to substan- tially follow the statute. If sufficient information is not thus given to the defendant, he may ask for a bill of particulars.-'"* 280. Nuisance. — It is necessary that the indictment aver the nui- sance to be committed in a public place and to the annoyance of the public.^"' The place must be described as a public one. An al- legation that the nuisance existed within the limits of a borough suf- ficiently shows that it was near dwellings.^"® When situated near a highway, the road need not be described, though it is better to do so. But if located in a public highway, the contrary is true, and "Gom. V. Reed, 4 Clark (Pa.) 459. offense in Permsr/lvarUa v. Gillespie, Here said to be customary to charge Addison (Pa.) 267. "feloniously." It is a misdemeanor. "' P. L. 30. ™ Gom. V. Porter, 1 Pittsb. 502. ™ Gom. v. Starr, 36 Pittsb. L. J. 334. '" Respullica v. Beiher, 3 Yeates, 282. "^ Com. v. Linn, 158 Pa. 22, 22 L. R. This decision rested on the act of 1794, A. 353, 27 Atl. 843. Indictment for which is carried into § 80 of the Penal profanity defective because of failure to Code. See also RespuhUca v. Langoake, charge within the presence and hearing 1 Yeates, 415. of citizens. "" Com. V. i/oi'inson, 13 Pa. Co. Ct. 543, ^Delaware Division Ganal Go. v. 3 Pa. Dist. R. 222. A common-law in- Gom. 60 Pa. 367, 100 Am. Dec. 570. dictment was sustained for an analogous SO-l CRIMINAL AJSID PENAL PROCEDURE. [chap. xin. both name and termini must be given.^"^ The length and width of an overflow from an obstructed watercourse need not be given. ^"^ The locv^ in quo of the nuisance, when located on private grounds, need not be described with such particularity as will enable the sheriff to abate it in case of conviction. The court will order the defend- ant to abate it.-^"" If the indictment is for nuisance by a plank road or turnpike company, it must be set forth where and in what respect the road is defective. Otherwise it will be quashed.-'^*' The indictment may charge the common-law nuisances punishable Tuider § 178 of tlie Penal Code, which provides that every felony, misdemeanor, and offense whatever, not specially provided by the act, may and shall be punished as theretofore. To aver that defendant is "a common scold ajid disturber of the peace of the neighborhood" is good;^^^ or that defendaat, intending the morals of citizens of this commonwealth to debauch and corrupt, openly and publicly in the public highways, wicked, scandalous, and infamous words did uttei- in the hearing of the citizens of the commonwealth, etc. ;^^^ or that a certain highway where it crossed a railway "was, and yet is, unsafe, dangerous, broken, uneven, rough, obstructive for want of due repara- tion and amendment of the same," etc., without stating the specific facts which rendered the street in that condition ;^^* or to allege that a brick kiln occasioned noxious vapors which corrupted the air to the common nuisance of the neighborhood, without setting forth the spe- cial circimostances which rendered the kiln a nuisance.^ ^* The conclusion of such an indictment must be "to the common nui- sance of the citizens of the commonwealth of Pennsylvania."^^® But if the acts which might be alleged as a nuisance constitute another common-law offense, the failure to use this conclusion is not fatal, for the indictment will be good for the other crime.^^* 281. Obscenity. — This was a common-law offense. It was held that "" Com. V. McCormich, 5 Pa. Dist E. "" Com. v. Mohn, 52 Pa. 243, 91 Am. 535, 13 Lane. L. Rev. 270, 9 York Legal Dec. 153. Record, 205, 6 Del. Co. Rep. 367. "" Com. v. Mohn, 52 Pa. 243, 91 Am. ^^ Respuhlica v. Arnold, 3 Yeates, 417. Dee. 153. Second count. It was also decided in this case to be ™ Com. v. 'New Bethlehem, 15 Pa. proper to call the road, the common- Super. Ct. 158. wealth's road or a road leading from A. •" Com. v. Weitzel, 1 York Legal Rec- to B. Old. 59. '"" Com. V. MoCormiok, 5 Pa. Dist. R. "» Qraffins v. Com. 3 Penr. & W. 502. 535, 13 Lane. L. Rev. 270, 9 York Legal ^"^^ Barker v. Com. 19 Pa. 412; Com. Record, 205, 6 Del. Co. Rep. 367. v. Sharpless, 2 Serg. & R. 91, 7 Am. "" Com. V. Columbia £ W. Turn/p. Co. Doc. 632. 16 Pa. Co. Ct. 35, 12 Lane. L. Rev. 92. This decision is based on act of May 22, 1878, P. L. 85, § 1. § 282J INDICTMENTS FOR PARTICULAR OFFENSES. 305 tiie indictment for showing a lewd picture need not allege that it was shown to the public at large ;^^'^ or that scandalous, obscene, and in- famous words and gestures were to the common nuisance of the citi- zens.^^® The common-law indictment need only describe the obscene picture as '"'lewd, wicked, scandalous, infamous, and obscene" with- out describing in detail the postures and attitudes of the figures there- on.^^' Likewise, it is not necessary to set forth the obscene words used. By § 40 of the act of ISeO^*** obscenity was made a statutory of- fense. Subsequently the acts made punishable are set forth in more detail. ■'^^ tinder this act it is sufficient to charge the crimes in the words of the statute. A bill of particulars may be asked for if this does not furnish defendant sufficient information.^^^ An indictment charging the publication of "an account or descrip- tion of an instrument or apparatus for preventing conception," which does not contain a copy of the publication, or its purport, or sub- stance, is defective.^^^ 282. Obstructing justiee.— , The indictment must show that such an offense has been committed. Where the bill charges a dissuading of a witness from attendance at court, it must appear that a subpoena was issued by some person having authority to issue it.-'^* If the obstruction of an officer in the execution of process is alleged, it is sufficient to aver that the officer was "duly authorized to serve and execute the said process," and that the person interfered with had the lawful charge of the prisoner.^^" A landlord's distress warrant is not such process as is within the meaning of the act.^^* Where the indictment is for contempt for refusal to answer questions before a justice or alderman, the reason for the refusal need not be set forth. ■'^'' The indictment will not be duplicitous in charging an at- tempt and an actual dissuading of a witness from attending court. ■'^^ It is questioned whether a count would be good at common law, which '" Com. V. Sharpless, 2 Serg. & E. 91, '^' Com. v. Watrous, 1 C. P. Rep. 21, 7 Am. Dec. 632. 1 Law Times N. S. 153. '" Barker v. Com. 19 Pa. 412. '" Com. v. Armstrong, 4 Pa. Co. Ct. "° Com. V. Sharpless, 2 Serg. & R. 91, 5. It need not be averred that the of- 7 Am. Dec. 632. ficer was a special deputy. '^» March 31, P. L. 382. "^ Com. v. Leech, 27 Pittsb. L. J. 233. "•Act May 6, 1887, P. L. 84, § 3. ^" Com. v. Woj/fored, 8 Lack. Legal ^ Com. V. Eavens, 6 Pa. Co. Ct. 545. News, 22. ^"Com. V. Leigh, 15 Phila. 376, 38 ^ Com. v. Guernsey, 8 Lack. Legal PhiJa. Leg. Int. 184. News, 3. Pa. Grim. Proc— 20. 806 ORTMINAL AND PENAL PROCEDURE. [chap. xui. avers an interference with the prosecution of a criminal case, with- out alleging an interference with a particular ofBcer.^^® 283. Official misconduct.— The indictment must aver that the officers were duly qualified and took upon themselves the duties of their of- fice.^''" If this is done, it is unnecessary to allege an election by the duly qualified voters of the tovsmshJjj. Even if the election is set forth, it must appear that the defendants took upon themselves the duties of the offioe.^*^ It must be stated the duties alleged to be neg- lected were imposed upon the defendant by law. Thus, street and road commissioners appointed by virtue of a charter of incorporation of a borough, whose duties were to be fixed by ordinance, could not be indicted for neglect to repair streets, when no such ordinance or by-law was adopted.^^^ It must appear that the duty was imposed exclusively upon the defendant Thus, where the duty was jointly imposed, one alone could not be indicted.^^"'' If the duty be prop- erly stated, and tlie circumstances showing neglect, then the indict- ment can be sustained.^ ^* All of the facts and circumstances, with time and place, which ren- dered the alleged act unlawful must be averred distinctly. ■'^^ Thus, it was insufficient to describe a road alleged to be defective as one leading to A and elsewhere.'^® Or in an indictment against a justice of the peace for failure to furnish a copy of the record demanded, to omit to set forth that the legal fees had been tendered or paid at tlie time the demand was made.-'^'' And it has been held insufficient where the averment is made that the amount demanded by the justice was paid, where such sum was less than the legal fee.-'** To allege the tender of 18% cents is not un- certain, when that is the amount fixed by the act of assembly.-'*® An indictment is well charged which alleges the defendant was a duly licensed detective, and took, by color of his office, a fee or re- ward of $100 improperly. Such a bill will not be quashed because such an officer is not named in the 12th section of the Penal Code, ^^ Com. V. Allen, 24 Pa. Co. Ct. 65, 660 (supervisors, though there had been 69. The court said here it was not pre- an agreement to divide the roads). pared to say it was not good. A new "' Com. v. Reiter, 78 Pa. 161. Here trial was granted on other grounds. the act of assembly, imposing the duty ""Edge v. Com. 7 Pa. 275. upon the supervisors to open the road "' Com. V. Orove, 7 Phila. 660; for In- in question, was set out in full, sufficient allegation of election, see Com. ^™ Com. v. Rupp, 9 Watts, 114. V. Rupp, 9 Watts, 114. '=' Com. v. Orove, 7 Phila. 660. ""^ Graffina v. Com. 3 Penr. &, W. "' Wilson v. Com. 10 Serg. & R. 373. 502. ^^'Com. v. Beerirower, 3 Clark (Pa.) "'Com. V. Olerdorfer, 1 Kulp, 102 404. (supervisors); Com. v. Orove, 7 i?hila, ^^' Bailey v. Com. 5 Rawie, 59. § 284] INDICTMENTS FOR PARTICULAR OFFENSES. 307 making such an offense a misdemeanor. It would be good, at least, as a common-law indictment for extortion.^'"' A charge under § 66 of the Penal Code, forbidding councilmen and others from having an interest in public contracts, must aver that the defendant is a member of some corporation or public institution which is interested in the contract with the borough, and should set forth the contract by giving the names of the parties, the date, place, and subject-matter.^*^ An indictment under the act of June 12, 1878, must aver that the money was received by the defendant as an officer of the corporation, and that he omitted to make a full entry in the books of the company. Otherwise, it is fatally defective, and will be quashed.^*^ A bill framed under the act of 1834,^** charging two county com- missioners with being concerned in public contracts, will not be quashed because it avers that the contracts in question were made, not under the authority of the commissioners as a board, but under the authority of the two defendants acting as county commission- ers.''** 284. Perjury. — "In every indictment for wilful and corrupt per- jury it shall be sufficient to set forth the substance of the offense charged, and in what court, or before whom the oath or affirmation was taken, averring such court, or person, or body to have competent authority to administer the same, together with the proper averment, to falsify the matter wherein the perjury is assigned, without setting forth the information, indictment, declaration, or part of any record or proceeding, other than as aforesaid, and without setting forth the commission or authority of the court, or person, or body before whom the perjury was committed."^*^ If the crime be charged substantially in the words of the act, it will be sufficient. Further information, when necessary, may be obtained by a bill of particulars. ■'*® The indictment must show the offense to have been committed with- in the jurisdiction of the court. An averment by the grand inquest of Lackawanna county that the defendant "late of the said county, on the 8th day of June, in the year of our Lord, 1891, at the cotmty aforesaid, and within the jurisdiction of this court . . . did ^*'Com. V. Reilly, 21 Pa. Co. Ct. 160, ""April 15, P. L. 537, § 43. 9 Kulp. 163, following Com. v. Sa/uls- "* Com. v. Jlurd, 177 Pa. 481, 35 Atl. lury, 152 Pa. 554, 25 Atl. 610. 682. ''^Com. Y. Naylor, 8 Lack. Legal "* Act March 31, 1860, P. L. 427, § 21. News, 20. ^"WaUams v. Com. 91 Pa. 493 (per- '« Com,. V. Flecker, 17 Pa. Co. Ct. 671, jury by a sheriff in taking oath of of- 8 Kulp, 225. It did charge a false en- fice) ; Cover v. Com. 20 W. N. C 386 try. 308 CRIMINAL AND PENAL PROCEDURE. [chap. xm. unlawfully, wilfully, corruptly, and falsely swear before Hon. Daniel W. Searle, president judge of the courts of Susquehanna county, specially presiding at a session of the court of quarter sessions of the peace, then and there being held," sufficiently refers by the use of the words "then and there" to the 8th of June and the county of Lacka- wanna.^*'^ The oath must be taken before someone duly authorized to admin- ister it. It is a fatal omission to fail so to charge.^** The state- ment that defendant took "his corporal oath" before a competent court, without alleging it tx3 have been taken "upon the holy gospel of God," or "in the presence of Almighty God, with uplifted hand," is sufficient.-'*' In an indictment charging perjury for swearing falsely before election officers, it is not necessary to state in what official capacity the officer administered the oath, so long as it is averred to have been done by one having authority to administer the same. If or is it necessary that it appear that the oath was reduced to writing as required by the election laws of 1874:.^^° To constitute the crime the matters sworn to must be material. The indictment need not aver this, if it is apparent,^ ^^ but it is not sufficient that it might have been so. In such cases it must be dis- tinctly averred.^ ^^ Even if averred to be material, and it appears on the face of the indictmert that it is not, it is defective.^®* A specific allegation must be made that the matters sworn to were false. To say, "the said John T. Perdue did there and then know- ingly, fals?ly, corruptly, wilfully, and maliciously answer, depose, and swear," etc., without a further statement that the oath was a false one, is bad.^"** But to follow the statement of the matter sworn to by the averment "whereas in truth and fact the said Charles J. Rup- pie did sign, execute, and deliver the written instrument therein de- scribed" is sufficient.^^" Where the defendant has made a qualified affidavit, "to the best of the loiowledge and belief" of the affiant, the '" Com. V. WilUamSi 149 Pa. 54, 24 and being a defect of substance it is Atl. 158. not amendable. ^"Com. V. Wilson, 11 Lane. Bar, 114; ""Com. v. Wood, 13 Pa. Co. Ot. 477, Com. V. Watrous, 1 C. P. Rep. 33. 7 Kulp, 141, 2 Pa. Dist. R. 823; Com. "° RespuUica v. 'Newell, 3 Yeates, 407, v. Rupple, 1 Pa. Co. Ct. 663, 3 Lane. L. 2 Am. Dec. 381. Rev. 280; Com. v. Ryder, 12 Lane. L. ""Com. V. O'Neill, 5 Pa. Co. Ct. 209. Rev. 97. Here the court examined the It was also held in this case that a mis- bill of costs attached to the affidavit on take in name as to the person adminis- which the indictment was founded to tering the oath was amendable. determine materiality. "^Oom. V. Jermon, 29 Phila. Leg. Int. '"Perdue v. Com. 96 Pa. 311. 165. '"Com. V. Rupple, 1 Pa. Co. Ct. 663, "' Com. V. Ludwig, 19 Lane. L. Rev. 3 Lane. L. Rev. 280. 147 J Com. V. WiUon, 11 Lane. Bar, 114; g§ 285, 286] INDICTMENTS FOR PARTICULAR OFFENSES. 309 indictment for perjury must aver either that he did not so believe, or that he well knew to the contrary.^^" Not only must the falsity of the matter be averred, but the particular way in which the defend- ant did falsely swear must be alleged.^*'' The validity of indictments for perjury found while the civil pro- ceedings, in which the false testimony was given, are pending, has given rise to some conflict.-'®* "In every indictment for subornation of perjury or for corrupt bargaining or contracting with others to commit wilful and corrupt perjury, it shall be sufilcient to set forth the substance of the offense without setting forth the information, indictment, declaration, or part of any record or proceedings, and without setting forth the com- mission or authority of the court, or person, or body before whom the perjury was committad, or was agreed or promised to be commit- ted."i59 285. Pure food laws.— An indictment under the act of 1895^*" is sufficient which describe the article sold as an imitation of butter sold as and for and under the name of pure butter, without designair ing either as an article of food. I^or is a count charging this offense double, which charges that defendants "sold and offered for sale," since these are merely aspects or stages of one transaction.^*^ It is not necessary to negative the provision that the act shall not apply to sales of labeled packages, since it is not an exception in the en- acting clause, but a mere proviso, which the accused may avail him- self of in defense.-**^ 286. Rape. — It is sufficient if the indictment allege that defend- ant did feloniously ravish and carnally know the prosecutrix. If this be charged, it is not necessary to aver that the intercourse was forcible, and against the will of the woman. ■'^^ An attempt should be averred as an attempt to feloniously ravish or to have forcible in- '°° Com. V. Ryder, 12 Lane. L. Eev. 97. Com. ■«■. Davis, 10 Pa. Co. Ct. 596, 29 ^^ Com. V. Beid, 5 Kulp, 27. W. N. C. 500; Com. v. Eouser, 17 Lane. ^ By some courts it has been held L. Rev. 414, and Com. ex rel. Urich v. the indictment may be found, though the Stine, 13 Lane. L. Rev. 228, 2 Lade. trial of it will be postponed until the Legal News, 179, the prisoner was dis- termination of the civil suit. Com. v. charged from custody on habeas corpus Moore, 9 Pa. Co. Ct. 501, 20 Phila. 390, proceedings. See also Concurrence of 48 Phila. Leg. Int. 157; RespubUca v. dvil and criminal proceedings, chapter Wright, 1 Yeates, 205; Em parte Felts, i., § 1, ante. 1 Kulp, 468. In Com. ex rel. Petry v. "'Act March 31, 1860, P. L. 427, § 22. Eeintzer, 13 W. N. C. 129, it was held ™ June 26, P. L. 317. the indictment could be found to prevent ™ Com. v. Kolb, 13 Pa. Super. Ct. 347. the bar of the statute of limitations but "^ Com. v. Wichert, 19 Pa. Co. Ct. 251, the prisoner was discharged: . In Com. 6 Pa. Dist. R. 387, 5 Northampton Co. v. Dickinson, 3 Clark (Pa.) 265; Com. Rep. 387. V. Somers, 1 Northampton Co. Rep. 289 ; "" Harman v. Com. 12 Serg. & R. 69. 310 CillMlNAL AND PENAL PROCEDURE. [cuap. xiii. tercourse against the will of the woman.'®* An assault with intent to ravish should be likewise charged. If che aggravating matter is badly set out, it ca.n be disregarded, and a conviction for assault and battery sustained.'"^ To sustain a conviction for attempt to commit rape, under the act of May 19, 1887, it is not necessary that a count so charging be added, or one for assault with intent to commit rape. Under § 50 of the Penal Code of 1860, upon acquittal of the felony, the jury may find the defendant guilty of the attempt.^*® 'Nor is it necessary that there be a count for fornication and bastardy. The indictment for rape and bastardy will sustain such a conviction.'"*'' 287. Receiving stolen goods. — Counts for receiving stolen goods may be joined with those for larceny.'*^ The rules as to the descrip- tion of property are the same as those for larceny. Where the coimt charging the stealing describes the property, and the ownership there- of, it is sufficient to refer to these allegations in the count for receiv- ing by the use of the words "the said.'"** The receiving of several articles belonging to several persons is well charged in one count, where part of the same transaction,'*" and the proof as to one suffi- ciently described will sustain a verdict of guilty. The others may be stricken out by amendment, or a nolle prosequi entered as to them.''^* The property may be laid in the person having the possession of it, though not the title.'''' 288. Robbery. — It is not necessary that all the circumstances which enter into the definition of robbery at common law should be particu- larly averred in the indictment, such as that the property was taken "from bis body and against his will.""* It is sufficient to charge "feloniously did make an assault, and him, the said August Seeber in bodily fear and danger of his life, then and there feloniously did put, . . . then and there feloniously and violently did rob, seize, steal, talie, and carry away," etc.'^*^ An indictment charging larceny from the person is not converted into one for robbery by the presence of the technical words "with force and arms."'''* Similar rules as to description of property apply as in kindred of- ^'^Mears v. Com. 2 Grant Cas. 385. "'Com. v. Johnson, 133 Pa. 293, 19 ^'^ Stout V. Com. U Serg. & R. 177. Atl. 402. "'Com. V. George, 12 Pa. Super. Ct. "'Com. v. Bowers, 3 Brewst. (Pa.) 1- 350. Here the judgment was arrested '"a Com. V. Leivis, 140 Pa. 561, 21 for a fatal variance in name. Sensen- Atl. 501. " derfer was used for Sensenderf. Such ""Act March 31, 1880, P. L. 427, § 24. are not idem sonans. '•' 06m. V. Ault, 10 Pa. Super. Ct. 651. '" Acker v. Com. 94 Pa. 284. "'Com. V. Aidt, 10 Pa. Super. Ct. "'«■ Acker v. Com. 9 Pa. 284. 651. '" Com. V. MilU, 3 Pa. Super. Ct. 161. §§ 239-291] INDICTMENTS FOR PARTICULAR OFFENSES. 811 feu yes. An utter failure to prove the property alleged to hare been taken, but proof of something different, has been held such a variance as to warrant arrest of judginent.-'''* An assault with intent to rob need not state the goods intended to be taken.^'^ 289. Seduction. — It is essential to charge that tiie defendant did seduce the prosecutrix, as well as that he had illicit connection with her under promise of marriage. To aver "that the defendant did have and procure illicit connection with the prosecutrix under and by means of promise of marriage, she being a female of good repute and under the age of twenty-one years," is a mere charge of fornica- tion.1^6 290. Threatening letters.— An indictment under the act of 1876"'' for sending a threatening letter cannot be sustained where it appears tliat the writing was a demand for the paj'Taent of an honest debt, though accompanied with a threat to prosecute for a crime. The purpose of the act was to convict where the intent is to extort or gain property, money, etc., not lawfully or justly due the writer.^^^ 291. Violating regulations.— An indictment for violating the regu- lations of the board of health in cities of the first class, under the act of June 30, 1885, relating to house drainage, cesspools, etc., must aver that defendant is a master plumber, and specify the streets, sewers, buildings, houses, cesspools, etc., at which the work was done.*''® A charge for violating building regulations in Philadelphia under ordinance of June 6, 1796, need not aver the erection on "a lot or piece of gi'oimd." It will lie against the one who erected the wooden building, whether tenant or owner.**" The indictment for conducting a theatrical business without a li- cense must allege whether it is under the act of 1845, requiring a state license, or under the act of 1850.*** For requisites of bill for conducting oyster cellar without license, see Com. v. Mathes.^^^ "' Com. V. McManvmwn, 15 Pa. Co. Ct. 11 Pa. Dist. R. 180, 19 Lane. L. Rev. 495. Here alleged the taking of certain 103, 2 Blair, 187. The letter read, "If promissory notes commonly called bank you do not pay my bill by Saturday, notes. The evidence showed money. At closing time, I will have a warrant is- the conclusion of the trial the court was sued for your arrest for your disposing asked to instruct the jury to acquit, but of your goods." Indictment quashed, did not. Judgment was arrested on mo- "" Com. v. Lamhecht, 3 Pa. Co. Ct. tion. Com. v. Moorly, 8 Phila. 615, 323, 18 Phila. 505. The defect is amend- said to be too sweeping. able. "" Rogers v. Com. 5 Sorg. & R. 463. """ Douglass v. Com. 2 Rawle, 262. "' Com. V. Sohull, 1 Pa. Co. Ct. 52. '" Com. v. Foaj, 10 Phila. 204. Judg- ^"May 8, P. L. 141. ment arrested. "' Com. V. Hatch, 26 Pa. Co. Ct. 114, "^ 1 Pittsb. 142. CHAPTEE XIV. OBJECTIONS TO INDICTMENT& 292. Time to make. 293. Demurrer. 294. Motion to quash. 295. For matters not of record. 296. Where no preliminaiy examination. 297. For defects in information or transcript. 298. For errors in grand jury. 299. For matters of defense, or amendable. 300. Where offense barred. 301. Where other proceedings pending. 302. Pendency of another indictment. 303. Where first bill lost. 304. Where bill found at wrong court. 305. Effect of quashing and review. 306. Efiect of repeal of statute. 307. Variance as to place. 308. Variance as to time. 309. Variance as to name. 310. Variance in description of property. 310a. Variance in description of writings. 311. Variance in statement of offense. 312. Variance between information and indictment, 313. Amendments. 314. — of caption. 315. — of venue and time. 316. — of names. 317. — of statement of offense. 318. — of defects of substance. 319. — of joinder of parties. 320. Bill of particulars. 321. — when refused. 322. — when granted. 323. Contents. 324. Effect of. 325. Amendment of. 326. Service of copy of indictment. 292. Time to make. — "Every objection to any indictment for any formal defect apparent on the face thereof shall be taken by demur- rer, or on motion to qnash such indictment, before the jury shall be S12 § 292] OBJECTIONS TO INDICTMENTS. 3lS sworn, and not aften7ard; and every court before whom any audi objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such par- ticular, by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared.^ Even before the passage of this section, it had been held that defects not of subctance could not be taken advantage of after verdict.^ The act says the objection is to be taken before jury sworn, but it is necessary also that it be before plea entered.^ This provision will not bar subsequent objection to substantial defects. Such are not cured even by verdict, for it only finds the facts sufficiently pleaded.* A failure to object to the omission of a private act in the indict- ment is formal, and the defect cannot be taken advantage of after trial,^ or duplicity,® or misjoinder of eoimts,'' or to set forth three embezzlements in one count, without alleging the last was within six months of the first;® or to fail to state "agent" was a "professional agent;"" or that no one was alleged as principal in indictment against accessory;^" or that count was not sufficiently certain ;■'■' or omission of estato, mystery, or degree ;^^ or the name of defendant's wife in charge of adultery ;^^ or the failure of the indictment to show the im- paneling of the grand jury, or that it was found a "true bill ;"■'* or the charging of an "unlawful" abandonment, instead of "wilful" abandonment;^® or alleging sale of liquor to minors, without stating "as a beverage;"^® or using the word "feloniously" improperly,^'' or omitting an initial in the name of the owner of the property, which appeared in the information ;^* or a misnomer of the owner of prop- •Act March 31, 1860, P. L. 427, § 11. 'Com. v. Hill, 2 Pearson (Pa.) 432. ' Lutz V. Oom. 29 Pa. 441. Here the "Com. v. Nevxomer, 49 Pa. 478. conjunction "and" was omitted in con- " Com. v. Kelly, 10 Lane. Bar, 107. neeting two sentences in a, count for " Campbell v. Com. 59 Pa. 266 ; Com. murder. v. Hughes, 11 Phila. 430, 33 Phila. Leg. 'Com. V. Ramsey, 1 Brewst. (Pa.) Int. 44. 422; Com. v. Jessup, 63 Pa. 34. '= Com. v. Williams, 149 Pa. 54, 24 * Moore v. Com. 99 Pa. 570. Here Atl. 158. counts did not charge the crime of false "'Davis v. Com. (Pa.) 4 Cent. Rep. pretenses, and judgment was arrested. 711j 7 Atl. 194; Gorman v. Com. 124 See arrest of judgment, chapter xxin., Pa. 536, 17 Atl. 26. post. " Traviss v. Com. 106 Pa. 597. ' Phillips V. Com. 44 Pa. 197. " Com. v. Stewart, 12 Pa. Co. Ct. 151, 'Kilrow V. Com. 89 Pa. 4S0; Com. v. 2 Pa. Dist. R. 43, 23 Pittsb. L. J. N. S. 59. Frey, 50 Pa. 245 ; Com. v. Livingston, ^° Com. v. Jessup, 63 Pa. 34. Shars- 18 Pa. Co. Ct. 236, 5 Pa. Dist. R. 666, 27 wood, J., dissented on the ground that Pittsb. L. J. N. S. 153; Com. v. Bargar, the defect was one of substance. 2 Law Times, N. S. 161. ^'' Staeger v. Com. 103 Pa. 469. ' Com. V. Hand, 3 Phila. 403, 16 Phila. ''Evans v. Com. 5 Pa. Co. Ct. 362. Leg. Int. 157. Certiorari after trial before justice. 314 CRIMINAL AND PENAL PROCEDUEE. [chap, xiv, erty;*® or in the description of property;*" or for insufficiency in the description of the building entered.*^ Though ordinarily sufficient to object before plea entered, if a rule of court requires the filing of the demurrer or motion to quash prior to that time, it will be binding.^* ISTor will the rule be departed from because defendant had not secured counsel until less than ten days preceding the term.*' ISTot only must the objection be made at the time fixed in the act, but the court must decide before that time. If it refuses to quash then, it cannot do so afterwards.** 293. Demurrer. — The sole question raised by the demurrer to the indictment is whether the facts and circumstances set out constitute a violation of the law. If they do, then judgment must be for the commonwealth. Otherwise, for the defendant.*' There is nothing in § 11 of the Penal Code, already noticed, which deprives a defend- ant of the right to demur as theretofore, provided he does so at the proper time.*^ A demurrer will be sustained where all the facts charged, taken as true, could not malce out the criminal offense,*^ or where the alle- gations are too uncertain, and no proper description of property ap- pears.*^ But judgment will be entered for the commonwealth when the facts charge an indictable offense.*^ The omission of the Christian name of defendant, or misjoinder of counts, cannot be taken advantage of ''Com. V. Livingston, 18 Pa. Co. Ct. '^ Com. v. Quay, 7 Pa. Dist. R. 723; 236, 5 Pa. Dist. R. 666, 27 Pittab. L. J. Com. v. Bunter, 13 Pa. Co. Ct. 573, 2 N. S. 153. Here an amendment waamade Pa. Dist. R. 707. after the evidence of the commonwealth " Com. v. Galbraith, 6 Phila. 281, 24 was in. In Com. v. Bovyers, 3 Brewst. Phila. Leg. Int. 109. (Pa.) 350, a new trial was granted in '"Com. v. Kaas, 3 Brewst. (Pa.) 422. such ease where the commonwealth did No charge that burglary was committed not amend. But a new trial was re- "in the nighttime." A form for demur- fused, where no amendment, in Com. v. rer appears in this case. Kressler, 12 Phila. 628, 35 Phila. Leg. "" Com. v. Galbraith, 6 Phila. 281, 24 Int. 420. Phila. Leg. Int. 109. Indictment for "• Com. V. Moorby, 8 Phila. 615. But executed conspiracy to cheat by false the contrary was held where the proper- pretenses did not set forth the induce- ty stolen was entirely different, in Com. ments, and the property was merely de- V. MoMarwman, 15 Pa. Co. Ct. 495. scribed as "$17,000 cash." ^ Com. V. Johnston, 19 Pa. Super. Ct. '»' Com. v. Hunter, 13 Pa. Co. Ct 573, 241. 2 Pa. Dist. R. 707 (election offenses); '^Com. V. Shaub, 5 Lane. L. Rev. 121. Com. v. Qvay, 7 Pa. Dist. R. 723 (con- Rule of court required the filing ten spiraey) ; Com. v. Culver, 1 Clark (Pa.) days before the first day of the subse- 361 (libel by attorney in affidavit filed quent regular term. Held, too late to in proceeding in court) ; Com. v. Dief- file demurrers thereafter. fenbaugh, 3 Pa. Co. Ct. 299, 5 Lane. L. "Com. V. Levy, 17 Lane. L. Rev. 103. Rev. 346 (indictment for defrauding "Com. v. Prey, 50 Pa. 245. turnpike company). §§ 291, 295] OBJECTIONS TO INDICTMENTS. 315 in this way.^" If a demurrer be sustained to one count which is de- fective, this is no ground to sustain it as to other counts, though they may refer to matters in the count stricken out.^^ A judgment en- tered for the commonwealth on demurrer to the indictment is not a determination of guilt on Avhich sentence is passed, hut merely of re- spondeat ouster. The defendant may then plead.*^ Though unusual, a demurrer to the commonwealth's evidence may be entered after its case is closed. The jury may then be discharged, and the question of the guilt or innocence of the defendant left to the determination of the court.^* 294. Motion to quash. 3* — A inotion to quash is addressed to the dis- cretion of the court. It should be in writing, setting forth the grounds assigned. ^^ The court will not grant the motion unless clear reason be shown therefor.*® This discretion is reviewable, and where tbe bill is quashed on insufficient grounds, the appellate court will reverse. Thus, where the court quashed a bill alleging the erec- tion of a nuisance in a stream after receiving depositions to show that this particular erection was allowed by law.^'' Where it quashed be- cavise it believed the innuendo in the indictment for libel too broad.^* Where the lower court quashed for formal defects.®® Where it set aside the bill because based on a constable's return, and not on a pre- liminary examination.*" And in other cases noticed herein. 295. For matters not of record. — In determining the question, mat- ters not appearing upon the record may be considered by the court.*^ Evidence may be received to show that the presentment was not based on the knowledge of the grand jurors.*^ To show that grand juror was disqualified.''* To show interference with grand jury by presen- tation of paper to foreman by private counsel.** To show jury wheel '" Com. V. Demain, 3 Clark (Pa.) 487, ceny to steal promissory notes, the court Brightly (Pa.) 441. declined to qup.sh because the indictment ■" Com. V. Miller, 2 Pars. Sel. Eq. Cas. set forth the larceny of one promissory 480 (though whole bill here dismissed note. on other grounds) ; Com. v. Kaas, 3 "Com. v. Church, 1 Pa. 105, 44 Am. Brewat. (Pa.) 422. Dec. 112. ^^ Com. V. Rogers, 1 Del. Co. Hep. 517. " Com. v. Keenan, 67 Pa. 203. "SutcUson V. Com. 82 Pa. 472, 478; "Com. v. Morningstar, 144 Pa. 103, Com. V. Parr, 5 Watts & S. 345 ; but the 22 Atl. 867. commonwealth cannot be compelled to " McGullough v. Com. 67 Pa. 30. join in the demurrer. " Com. v. Bradney, 126 Pa. 199, 17 "* On the question of motion to quash, Atl. 600. see Duplicity, Joinder, and the Partic- " Com. v. Oreen, 126 Pa. 531, 17 Atl. ular Offenses, chapter XI., ante. 878; Com. v. McComb, 157 Pa. 611, 27 "Com. V. Williams, 149 Pa. 54, 24 Atl. 794. Atl. 158; Com. v. Allen, 24 Pa. Co. Ct. *' Com. v. Craig, 19 Pa. Super. Ct. 81. 65. " Com. V. Frey, 11 Pa. Co. Ct. 523, 1 ^RespuUica v. Cleaver, 4 Yeates, 69. Pa. Dist. R. 175, 9 Lane. L. Rev. 3C3, 3 Thus, where the act of 1790 made it lar- Northampton Co. Rep. 153. 818 CRIMINAL AND PENAL PROCEDURE. [chap. xiv. was not properly sealed.'*^ To show interference by the district at- torney. ^"^^ It has been said that all facts admitted or disclosed on the argument of the motion would be considered. Thus, that the libel complained of was a confidential communication of client to attorney;** or that joint defendants were husband and wife.*'' The court, in perjury, has considered the paper attached to the false affi- davit to determine the materiality of it.** But evidence will not he received to determine the question of the regularity of the behavior of the justice who held the hearing. In such case the court will not go beyond his transcript.*® If the court does receive proof of the facts alleged in the motion, it must be presumed on appeal, in the absence of a bill of exceptions, that it heard the evidence and decided correctly.^" 296. Where no preliminary examination. — The court will not quash the indictment for omission of a preliminary examination, where one of the extraordinary modes of accusation has been prop- erly resorted to.^-' But if not based on information, nor by present- ment or by allowance of court, it will be ;®^ or if based on improper presentment.^^ 297. For defects in information or transcript. — If based on an in- formation such must not be defective in substance.®* But the fact that it is unsigned does not make it insufficient.^^ The indictment must be based on the information, as has been seen.®® If the tran- script of the justice shows no offense was committed,®^ or that he had exclusive jurisdiction to punish,®* the indictment will be quashed.®' 298. For errors in grand jury.— It is not ground to quash that a ''Brown v. Com. 73 Pa. 321, 13 Am. '"Com. v. Green, 126 Pa. 531, 17 Atl. Rep. 740. 878; Com. v. McComi, 157 Pa. 611, 27 "a Zeigler v. Com. 12 Cent. Rep. 497, Atl. 794. 14 Atl. 237, 22 W. N. C. 111. Though "Com. v. Roland, 18 Lane. L. Rev. 25 no competent evidence here given. (based on information received aver- '" Com. V. Pavitt, 16 Phila. 478, 40 ring belief) ; Com. v. Clement., 8 Pa. Phila. Leg. Int. 454. Dist. R. 705 (not quashed, but sentence "Com. V. Allen, 24 Pa. Co. Ct. 65. an-ested). '' Com. V. Byder, 12 Lane. L. Rev. 97. "" Com. v. Brennan, 193 Pa. 537, 44 "Com. V. Frescoln, 11 Lane. L. Rev. Atl. 498; Com. v. Hooper, 15 Pa. Super. 161. Ct. 227, 8 Del. Co. Rep. 89. The case of '"Com. V. Roth, 8 Pa. Super. Ct. 220. Com. v. Schall, 5 York Legal Record, Not decided whether proper to present 137, is to the contrary, such evidence. '" See conformity of information and °' McCullough v. Com. 67 Pa. 30, and indictment, § 312, supra. Com. V. New Bethlehem, 15 Pa. Super. " Com. v. Fleer, 8 Del. Co. Rep. 25. Ct. 158 (constable's returns) ; Com. v. Transcript showed spoken words, indict- Hurd, 177 Pa. 481, 35 Atl. 082 (based ment for libel. on presentment after direction of court "' Com. v. Smith, 23 Pa. Co. Ct. 491. to investigate). "For informations and transcripts, "Gom.v. Miller, 14 York Legal Reo- see §§ 62-65, 110, 111, 179, ante. Old, 112. § 399J OBJECTIONS TO INDICTMENTS. 317 member of the grand jury was subject to challenge,®" unless it ap- pears that the objection was not known, or could not have been known by the exercise of reasonable diligence, at the time the challenge could have been interposed.®^ It is ground to quash if it appears that more than twenty-three grand jurors were swom,®^ or improper paper pre- sented to grand jury by private counsel f^ or interference by district attorney;®* or bill not signed by foreman;®^ or testimony of wit- nesses whose names were not indorsed on the bill.®® But such objec- tion cannot be taken advantage of in plea of abatement.®'' It is not groimd to quash that the name indorsed is a mere clerical error.®* E'or is it ground to quash where a bill is resubmitted to the grand jury, where first considered while one juror was withdrawn;®* or where the bill is first returned "ignored," and then changed to "true bill" by the erasure of the first words, and the interlineation of the new;''® or where the district attorney failed to sign the bill.''^ A motion to quash should be granted where the grand jury has been im- properly drawn.''^ But an objection to defects of form in the writ of venire must be made promptly.''* 299. For matters of defense, or amendable. — The indictment will not be quashed for matters of defense.''* Or for amendable defects, such as a failure to state defendant's estate, mystery, or degree, un- less made before the jury is sworn.' ^ A motion based on this ground will not be entertained, where the defendant fails to state what the proper addition to his name should be.''® "° Com. V. Haag, 10 Lane. L. Rev. 265. " Brown v. Com. 73 Pa. 321, 13 Am. " Com. V. Craig, 19 Pa. Super. Ct. 81. Rep. 740. "' Com. V. Leisenrimg, 2 FesLTSon (Pa.) ''Com. v. Wmdish, 176 Pa. 167, 34 466; Com. v. Salter, 2 Pearson (Pa.) Atl. 1019. Here it was held too late to 461. do so at the next term after the finding, "'Com. V. Frey, 11 Pa. Co. Ct. 523, 1 the trial of the case having been con- Pa. Dist. R. 175, 9 Lane. L. Rev. 323, 3 tinned until that time at the request Northampton Co. Rep. 153. of defendant. "Com. v. Bradney, 126 Pa. 199, 10 '* Com. v. Frey, 11 Pa. Co. Ct. 523, 1 Atl. 600; Zeiglerv. Com. (Pa.) 12 Cent. Pa. Dist. R. 175, 9 Lane. L. Rev. 323, Rep. 497, 22 W. N. C. HI, 14 Atl. 237. 3 Northampton Co. Rep. 153 (here in in- Though not proven in either of these dlctment for embezzlement against su- cases. pervisor, the motion alleged his ae- " Com. V. Dieffenbaugh, 3 Pa. Co. Ct. counts had been settled, and a balance 299, S. C. 5 Lane. L. Rev. 346. found due him); Com. v. Meads {No. "Com. V. Price. 3 Pa. Co. Ct. 175, 4 2), 14 York Legal Record, 132 (allega- Kulp, 289; Com. v. Wilson, 6 Kulp, 40. tion that the check, if altered, was al- " Jilla/rd v. Com. 26 Pa. 169. tered after its negotiation and return to "Com. V. Beldham,, 15 Pa. Super. Ct. the drawer). 33. " Com. V. Williams, 149 Pa. 54, 24 Atl. "" Com. V. Bradney, 126 Pa. 199, 17 158. An early case held the contrary. Atl. 600. Com. V. Vickers, Brightly's Digest, col. " Com. V. Haag, 10 Lane. L. Rev. 265. 492. "(;om. V. Lenox, 3 Brewst. (Pa.) 249. '"Com. v. Murphy, 12 Pa. Co. Ct. 131, Amendable. 9 Lane. L. Rev. 294. 318 CRIMINAL AND PENAL PROCEDURE. [chap. xit. 300. Where offense barred. — If the offense appears on the face of the bill to be barred by the statute of limitations it must be , quashed.'''^ And an agreement to support will not work as an estop- pel to set up the statute in an indictment for fornication and bas- tardy, but the court must quash.^* 301. Where other proceedings pending. '^ — It is no ground to quash that the bill is found during the pendency of habeas corpus proceed- ings f or that the indictment, being against public officers, has been found during the pendency of an appeal from county auditors, in- volving the moneys alleged to have been misused.*^ 302. Pendency of another indictment. — Pending a motion to quash a second and corrected indictment may be found a true bill by the grand jury, without a new binding over.®^ The pendency of the first bill is no ground for a plea of abatement to the second indictment, but the court on motion will quash the first and compel the defend- ant to plead to the last.®* E"or will a motion to quash the last be sus- tained.®* A second biU may be found on a second information for the same offense, and this furnishes no ground to quash, but the court will, on motion, set aside the first bill before compelling defendant to plead.®® 303. Where first bill lost. — Since the pendency of another indict- ment for the same offense is no bar to proceeding upon a second one, the court may order a new bill submitted to the grand jury without a second binding over, where it is made to appear that th3 first has been lost, mislaid, destroyed, or stolen.®® No notice need be given the defendant of the application to submit the new biU, where the original has been lost.®^ Though the first bill is usually supplied in the way above suggested, it may be by a certified copy of the orig- inal, upon due proof that it is an exact transcript. The defendant in '"Com. V. Bartilson, 85 Pa. 482; ^ Com. v. Clemmer, 190 Pa. 202, 42 Com. V. Seymour, 2 Brewst. (Pa.) 567; Atl. 675. The first was bad because of Com. V. Owens, 3 Kulp, 230. defect in summoning the grand jury. " Com. V. Werner, 5 Pa. Super. Ct. " Com. v. Norris, 7 York Legal Rec- 249, 41 W. N. C. 48. ord, 25, 9 Montg. Co. L. Rep. 143. Here '• For indictments for perjury during a motion was made to amend the first the continuance of the civil proceedings, indictment, and a continuance allowed see chapter I., § 1, arUe. on the ground of surprise. Instead of ''° Clark V. Com. 123 Pa. 555, 16 Atl. amending, a new information was made, 795 ; Com. v. Hoey, 8 Phila. 370 ; Com. and a new bill found, on which the trial V. McCarthy, 11 Pa. Dist. R. 161, 59 was had. Phila. Leg. Int. 107. '" Rosenherger v. Com. 118 Pa. 77, 11 '^Com. V. Hurd, 177 Pa. 481, 35 Atl. Atl. 782; Com. v. Freeman, 1 Pa. Co. 682. Ct. 392. " Com. V. Westcott, 4 C. P. Rep. 58. «' Com. v. Kwufman, 9 Pa. Super. Ct. " Smith V. Com. 104 Pa. 339. A new 310. trial was granted on the first for tech- nical defects, and a second found. §§ 804-306] OBJECTIONS TO INDICTMENTS. 319 such case has the right to be heard as to the sufficiency of the proof that it is a correct copy.®^ 304. Where bill found at wrong court. — The court may quash where the bill is found at a court prior to the one to which the de-- fendant was bound over,*^ provided the defendant has done no act to waive his right to malce the motion. This he does when he fails to appear, and allows his recognizance to be forfeited. 305. Effect of quashing and review. — If certain counts be quashed by the court as defective, the remainder will not necessarily fall, though they may refer to matters in those counts.*** The overruling of a motion to quash may, as we have seen, be the subject of review by the appellate court, but it is not ground for new trial.*^ Where evidence is received in support of the motion it must be presumed, in the absence of a bill of exceptions, that the lower court heard the evidence and decided correctly.^^ 306. Effect of repeal of statute.— The passage of an act of assembly revising the subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, mvist operate by implication to repeal the former, to the ex- tent to which its provisions are revised and supplied.'* A general act will repeal a local act dealing with the same offense.®* If the new enactment is a repeal of the former, and no saving clause is included, there can be no prosecution for the crime com- mitted prior to its passage; for the first statute is thereby rendered inoperative, and the new act can only apply to offenses subsequent thereto. Or if the proceedings have been instituted, they must fall, and the prisoner be discharged. Thus, the local act of 1865, relat- ing to bailees of livery teams, being repealed by the general act of March 22, 1887, the indictment for an offense committed in August of 1886 must be quashed, when the prosecution took place after the passage of the new act;"^ or when information is made after, the of- fense being committed before;®* or when the information had been " Gom. V. Becker, 14 Pa. Super. Ct. "Com. v. Cromley, 1 Ashm. (Pa.) 430. In this case it was presumed to be 179. Act of 1794 repealed that of 1760 regular, as nothing appeared on the rec- as to Sunday observance. No fine could ord to the contrary. be imposed for the violation of the ear- " Com. V. Haggerty, 3 Brewst. (Pa.) lier enactment when occurring subse- 285. Bound to February sessions. Bill quent to the former act. found at January sessions. "Nusser v. Com. 25 Pa. 126 (diifer- " Com. V. Kaas, 3 Brewst. (Pa.) ent procedure provided); Com. v. Do- 422. Ian, 4 Pa. Co. Ct. 287. "• Com. V. Still, 9 York Legal Record, " Com. v. Dolan, 4 Pa. Co. Ct. 287. 73. " Com. v. Brovm, 20 Pa. Co. Ct. 139, "Com. v. Roth, 8 Pa. Super. Ot 220. 7 Pa. Dist. R. 117. 820 CRIMINAL AND PENAL PROCEDURE. [ohap. xiv. made, and indictment found, and demurrer disposed of, and the en- actment was repealed, the procedings terminated f or where the trial has tcken place, but the sentence has not yet been imposed;®® or where an act is passed during the pendency of the proceeding pro- viding that the offense shall no longer be prosecuted by indictment.*' The application of these principles to the cases arising from the passage of the liquor law of May 13, 1887, gave rise to some conflict. Some courts held that all prosecutions for offenses prior to that date were terminated.^"" But a conviction was sustained where the trial took place a month later for an offense committed prior to its pas- sage, on the theory that as the act allowed the granting of licenses under the earlier acts until June 30, 188Y, it necessarily carried with it the right to punish for offenses connected with those licenses un- til their expiration.-^"^ If the act be unconstitutional as an ex post facto act, the prosecu- tion under it cannot be sustained. ^"^ 307. Variance as to place. — The place of the commission of a crime is stated in the indictment, so that the jurisdiction of the court may appear. A variance between the allegation and the proof as to it will not be fatal, where the evidence shows the offense to have been actually committed within the jurisdiction of the court.''''" 308. Variance as to time. — A variance in proof as to time is imma- terial, where time is not an essential ingredient of the offense. "It is not necessary, however, except where time enters into the nature of the offense, \o prove the exact time alleged. Any other time may be " Ahhott V. Com. 8 Watts, 517, 34 prosecutions could take place until the Am. Dec. 492. expiration of the licenses, a conviction " Genkinger v. Com. 32 Pa. 99 (lower was allowed for an offense committed court reversed for imposing sentence prior to May 13, where the indictment subsequently) ; Com. v. King, 1 Whart. was not found until August 9. Com. v. 460. Toogood, 4 Pa. Co. Ct. 282. See note to ™ Com. V. Duane, 1 Binn. 601, 2 Am. this case discussing the decisions. Dec. 497 (libel on governor. The same ^"^ Com. v. Wasson, 29 Pittsb. L. J. principle applies in civil proceedings 434, 2 York Legal Record, 211. In where the statute providing a mode of Com. v. Duffy, 96 Pa. 506, 42 Am. Rep. procedure is repealed). Com. v. Beatty, 554, and Com. v. Taylor, 2 Kulp, 364, 1 Watts, 382 (method of assessing dam- the question was raised, but the acts ages for land taken by canal company), were held not eao post facto as to the de- ™(7om. V. Shuiel, 4 Pa. Co. Ct. 12; fendants. Com. V. TurJces, 3 Pa. Co. Ct. 419. "" Heikes v. Com. 26 Pa. 513. Here '" Sanders v. Com. 117 Pa. 293, 11 in indictment for fornication and bas- Atl 63. This decision is apparently con- tardy , the proof showed the fornica- trary to the case of Genkinger v. Com. tion in anoOier county. It was held 32 Pa. 99, arising under the liquor law immaterial, since the court of the coun- of 1858, which repealed the act of 1856. ty where the child was born has j'jris- Following Sanders v. Com. in that the diction. §§ 309-310a] OBJECTIONS TO INDICTMENTS. 821 shown on the trial, if it is prior to the finding of the indictment and ■within the period prescribed by the statute of limitation."^"* 309. Variance as to name. — A difference between proof ajid allega- tion as to name may be fatal, if not amended. Thus, the judgment was arrested where the owner of property stolen was called Sensen- derfer, instead of Sensenderf, the names not being idem sonans}"^ The stating of a bank as the "Merchant's National Bank of Shenan- doah," instead of the "Merchants' Bank of Shenandoah," was held not to be fatal, when there was only one such bank to which it could re- fer.^"^ Or a variance in the record of a justice before whom a trial was held with jury by which the foreman was called "B. Whitman," when the verdict showed "Benj. Whitman," is not fatal.^"'' Such an objection must be seasonably made when the variance appears. An objection that the innuendo in an indictment for libel refers to "Wag- onseller," instead of "Wagonsall," will not first be heard on motion in arrest of judgment.*"® 310. Variance In description of property. — Variance in the descrip- tion of property may be fatal, though, since the act of 1860, amend- able. To describe "stereotype plates" as "stereotype metal" was held good in arrest of judgment.*"" But an indictment for stealing "a promissory note, commonly called a bank note," was not supported by the larceny of $17.**" Larceny of corn is supported by proof of stealing Indian corn or maize.*** If the property be laid as belong- ing to one person, and the proof shows another, there is a fatal va- riance,**^ though the defect is now amendable.**^ If the objection be not taken on the trial, it furnishes no ground to arrest the judg- ment.*** 310a. Variance in description of writings. — Difference between al- legation and proof of writings is bad, though now amendable. To '" Com. V. Major, 198 Pa. 290, 47 Atl. 495. Here judgment was arrested. The 741 (here murder laid on November objection was made on the trial, but the 11th. Death did not occur until the court told the defendant he would eon- 14th) ; Com. v. Miller, 6 Pa. Super. Ct. sider it in arrest of judgment. 35, 41 W. N. C. 231 (indictment for '^'^ Com. v. Piiie, 2 Clark (Pa.) 154. subornation of perjury laid date on ^^Com. v. Martin (1853) 5 Clark November 10. Proof showed November (Pa.) 245. Property belonged to wife, 11. See also Indictments, Laying Time, not husband, chapter xi., § 204, ante. '" Com. v. Livingston, 18 Pa. Co. Ct. ^"'Gom. V. Bowers, 3 Brewst. (Pa.) 236, 5 Pa. Dist. E,. 666, 27 Pittsb. L. J. 350. N. S. 153. And being amended cannot "° Com. V. Karpowski, 167 Pa. 225, 31 be taken advantage of in arrest of judg- Atl. 572. ment. '"Evans v. Com. 5 Pa. Co. Ct. 362. '"Com. v. Kressler, 12 Phila. 628, 35 "^Com. V. Irwin, 1 Clark (Pa.) 344. Phila. Leg. Int. 420. Property laid in "» Com. V. Moorly, 8 Phila. 615. A and B, but belonged to B. "° Com. V. McManiman, 15 Pa. Co. Ct. Pa. Crim. Proc— 21. 322 CRIMINAL AND PENAL PROCEDURE. [chap. xtp. (1080111)6 a forged receipt "for the use of Hugh Brison," instead of "for the use of Hugh Prison," was held fatal ;^^^ or the name on a lot- tery ticket as "Burrill" for "Burrall;""« or an effigy as a "Paddy" in place of a "Shelah," these terms designating opposite charac- ters.^*'' But if the effigy be correctly described, a variance as to the words appearing thereon will not matter.*** But objection to the variance, if any, must be seasonably made, and not for the first time in arrest of judgment."® 311. Variance in statement of oflfense. — Variance in the allegations of the acts constituting the offense may be fatal. Thus, the indict- ment for false pretenses could not be sustained, where it alleged a representation that a draft was good, as defendant had funds in a cer- tain bank, by proof that he said a partnership of which he was a mem ber had such funds ;*^'' or for keeping bawdy house, by proof that de- fendant leased the building for that purpose knowingly ;*^* or in per- jury, where the indictment alleged a false statement that all the raft- ers were charred to an average depth, and the proof showed a false statement that they were uniformly charred to that depth, since the statement charged might have been true, though the proven one was imdoubtedly false.*^^ An indictment charging a false representation that defendant had $300 in a certain bank is supported by proof of pretense that he had sufficient funds in bank to pay a certain biU, amounting to about $300.*^^ And a charge of nuisance by keeping a pig sty, stating that the hogs were fed with offals and entrails of beasts and other filth, is supported by proof that they were fed prin- cipally with slop, since it was immaterial what they were fed with, and the entire averment could be treated as surplusage.*^* 312. Variance between information and indictment. — Variance be- tween informations and indictments basei thereon cannot be taken advantage of in arrest of judgment.*^' 313. Amendments. — "If, on the trial of any indictment for felony or misdemeanor, there shall appear to be any variance between the statement of such indictment and the evidence offered in proof there- "' Pennsylvania v. Hu-jfman, Aiiison "^ Com. v. Johnson, 4 Clark (Pa.) (Pa.) 140. 398. "' Com. V. Oillespie, 7 Serg. & R. 469, '== Com. v. Reid, 5 Kulp, 27. 10 Am. Dee. 475. ^=» Com. v. Karpowski, 167 Pa. 225, 31 '"Com. V. Haines, 4 Clark (Pa.) 17. Atl. 572. ^''Johnson v. Com. 22 W. N. C. 68. ^" Com. v. Van Sickle, 4 Clark (Pa.) ™Gom. V. Irwin, 1 Clark (Pa.) 344. 104. Omission of the words "in," "and," "of" '"° Com. v. Bradley, 16 Pa. Super. Ct. in libelous writing. 561. See Conformity of Indictment "" Com. V. Oarver, 16 Phila. 468, 42 with Information and Return, chapter Phila. Leg. Int. 210. ix., § 179, supra. g 314] OBJECTIONS TO INDICTMENTS. 323 of, in the name of any place mentioned or described in any such in- dictment, or in the name or description of any person or persons or body politic or corporation therein stated, or alleged to be the owner or owners of any property, real or personal, which shall form the sub- ject of any offense charged therein, or the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the conamission of such offense, or in the Christian name or surname, or both Christian and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or de- scribed therein, it shall and may be lawful for the court before whom the trial shall be had, if it shall consider said variance not material to the merits of the case, and that the defendant cannot be prejudiced tliereby in his defense upon such merits, to order such indictment to be amended, according to the proof, by some officer of the court, both in the part of the indictment wherein said variance occurs, and in ev- ery other part of the indictment in which it may become necessary to amend ; and after such amendment, the trial shall proceed in the same manner, in all respects, and with the same consequences, as if no variance had occurred. And every verdict and judgment which shall be given after making such amendment shall be of the same force and effect, in all respects, as if the indictment had originally been in the same form in which it was after such amendment was made."^^® "It shall be lawful for any court of criminal jurisdiction, if such court shall see fit so to do, to cause the indictment for any offense whatsoever, when any variance or variances shall appear between any matter in writing or in print, produced in evidence, and the re- cital or setting forth thereof in the indictment whereon the trial is pending, to be forthwith amended in such particular or particulars, by some officer of the court, and after such amendment the trial shall proceed in the same manner, in all respects, as if no such variance or variances had appeared."^^^ 314. — of caption. — The caption of the indictment may be amend- ed, if necessary, it not being strictly a part of the bill.^*® It may be corrected to show the proper term;^^® to add the words "general jail '=» Act March 31, 1860, P. L. 427, § 13. ^» Com. v. Miller, 14 York Legal Rec- '" Act March 31, 1860, P. L. 42/, § 12. ord, 112; Com. v. Beohtol, 4 Clark ^"Pennsylvania v. Bell, Addison (Pa.) 306. (Pa.) 156, 179, 1 Am. Dea 298. . 32tf CRIMINAL AND PENAL PROCEDURE. [chap. xiv. delivery" to the "court of oyer and terminer;"^*" to supply the omis- sion of the words "of the peace" after "court of quarter sessions ;"^^^ to show the proper court to be quarter sessions, and not oyer and ter- miner.^^^ 315. — of venue and time. — The bill may be amended to show the commission of the crime in the county ;^^^ to show the proper date;^^* or to make the one charged intelligible.^*^ But an indict- ment appearing on its face to be barred by the statute cannot be amended so as to bring it within the bar by changing the date.^*® 316. — of names. — Amendments may be made as to names. Thus, the name of the person to whom liquor was sold may be inserted in the blank left in tlie indictment ;^*^ or the name of the defendant cor- rected ;^^^ or the name of the wife of the defendant in a charge of adultery ;^*^ or the addition of the word "independent" to the title of CM unincorporated beneiicial association whose property had been embezzled.^""^ So, averments as to ownership of the property in question may be chang'ed. Thus, where property stolen is alleged to belong to A, this may be stricken out, and "some person unknown" inserted :^*^ or where property laid as of A and B is proved to belong to B alone,^*^ or as of A and B jointly, is proved to belong partly to A and partly to B,^** the indictment may be corrected by amend- ment. Such objections must be raised during the trial, so that oppor- tunity may be had to amend. It is too late to wait until motion in arrest of judgment'** A bill may be amended by allowing the dis- "°Oom. V. Shaffner, 2 Pearson (Pa.) '^' Com. v. Owens, 3 Kulp, 230; Com. 450. V. Seymour, 2 Brewst. (Pa.) 507. "' Com. V. Burgin, 5 Legal Gaz. 258, '" Kough v. Com. 78 Pa. 495. though the contrary was held the year ™ Com. v. Early, 1 Lack. Jur. 323. before in Com. v. Mackin,, 9 Phila. 593, Changed from Ann Early to Honora 29 Phila. Leg. Int. 85. Early. ^^ Brown v. Com. 78 Pa. 122. Here ^^ Davis v. Com. (Pa.) 4 Cent. Rep. after writ of error the indictment was 712, 7 Atl. 194 — objection was not amended, and then certified to the oyer raised in this case in time. Followed in and terminer nunc pro tunc. The grand Oorman v. Com. 124 Pa. 536, 17 Atl. 26. jury finding the bill had only been sum- '" Com. v. Yolz, 14 W. N. C. 289. moned for the quarter sessions. ''^ Com. v. O'Brien, 2 Brewst. ( Pa. ) "Com. V. Leigh, 15 Phila. 376, 38 566. Phila. Leg. Int. 184. Here charged "^ Com. v. Livingston,, 18 Pa. Co. Ct. within the jurisdiction of the court, but 236, 5 Pa. Dist. R. 666, 27 Pittsb. L. J. not within county. N. S. 153. ^^ Myers v. Com. 79 Pa. 308. Changed "^ Rosenherger v. Com. 118 Pa. 77, 11 from October 11th to November 11th. Atl. 782. "" Com. V. Watrous, 1 C. P. Rep. 33. '" Com. v. Kressler, 12 Phila. 628, 35 Here set forth that "A, on April 14, Phila. Leg. Int. 420. 1879, etc., hereafter, to wit, before arbi- trators," etc., committed perjury. §§ 817-320] OBJECTIONS TO INDICTMENTS. 825 triet attorney to sign it.^*' And the omission of the estate, degree, or mystery of the defendant is a formal amendable defect.-'*' 317. — of statement of offense. — The statement of the offense may be amended in formal matters, as in striking out surplusage.-'*'' A bill charging adultery in one count, and fornication and bastardy in another, may be amended by striking out the charge of fornication, and joining the adultery and bastardy in one count.'** Where the offense of bribery is -well charged, but the legal words importing it are not inserted, they may be by amendment.'** And an indictment un- der the act of June 30, 1885, relating to regulations of buildings, sewers, and cesspools by boards of health in cities of the first class, which does not set out that defendant is a master plumber, or the lo- cation of the houses, streets, or sewers where the improper work was done, may be amended.'^" Or a failure to allege that the person to whom an insurance rebate was offered was the agent or acting for the policy holder is amendable.-'^' Likewise, the words "and of another person being a partner and joint owner with him," in describing the o-wner of the money deposited with an insolvent banker under the act of May 9, 1889, may be added, since the variance was not mate- rial to the merits of the case, nor could it prejudice the defense on its merits.^ ^^ 318. — of defects of substance.— But defects of substance cannot be amended. Thus, the court refused to allow the words "about the hour of 10 in the nighttime" to be inserted in a count for burglary.^®^ Or an addition to the innuendo in an indictment for libel to show the knowledge or understanding which the public generally had as to the identity of an anonymous writer who had been libeled.^ ^* But it has been held that an amendment to the indictment in libel tending to injure credit may be made to show that the prosecutor was in business at the time it was published.' '^ 319. — of joinder of parties. — As to the curing of misjoinder of parties, see Joinder of Parties, chapter xi.^ § 230, ante. 320. Bill of particulars. — Since the passage of the criminal proced- ^"Oom. V. Lenox, 3 Brewst. (Pa.) ^^ Com. v. Lamlrecht, 3 Pa. Co. Ot. 249; Com. v. Mullalley, 3 Law Times, 323, 18 Phila. 505, 44 Phila. Leg. Int. N. S. 126. 196. "' Com. V. Williams, 149 Pa. 54, 24 ^" Com. v. Morningstar, 144 Pa. 103, Atl. 158. 22 Atl. 867. "' See Surplusage and Duplicity, chap- "^ Com. v. Hamlett, 14 Pa. Super. Ct. ter XI., §§ 216, 217, ante. 352. ^^ Gorman v. Com. 124 Pa. 536, 17 ^'^ Com. v. Kaas, 3 Brewst. (Pa.) 422. Atl. 26. »» Com. V. Harris, 5 Pa. Dist. R. 671. "" Com. V. Harris, 3 Legal Gaz. 306, "' Com. v. Btacey, 8 Phila. 617. Legal Gaz. Hep. 455. Added "did at- tempt to bribe and' corrupt one A." 836 CRIMINAL AND PENAL PROCEDURE. [ohap. xiv. ure act of 1860, by which it was made sufficient to charge offenses substantially in the words of the act of assembly, numerous cases have arisen in which the defendant has moved to quash for insufficien- cy of description. The courts have uniformly held in such cases that this is not gi-ound to quash, though a bill of particulars may be asked for, which in a proper case the court will order. ■'^' ''Before arraignment, if it be made to appear to the court that any injustice is likely to be done the prisoner because of vagueness of the indictment, a bill of particulars may be ordered ; this, not because the prisoner has a right to demand it, but because the coifrt, after trial, on proof of surprise or injustice in consequence of the absence of spe- cific averment as to weapon and manner of killing, would set aside the verdict and grant a new trial."^^^ But by the bill of particulars is not meant a specification of the evidence to be adduced by the com- monwealth. This the prisoner has no right to ask, or the court to di- rect.*^^ 321. When refused. — It will not be granted to show the means and manner of killing, in the absence of some reasonable ground for sup- posing that it is necessary to enable the defendant fairly to defend himself. It is not to be used to fetter the prosecuting officer in the conduct of the case.''^® There is no necessity for it under such circum- stances, when the defendant and his counsel were present at the pre- liminary hearing.^®" iNor will a new trial be granted in such case for a refusal, unless it clearly appear that the defendant was sur- prised and prejudiced.^*^ There is likewise no necessity for it, in an indictment for contempt where the parties were present at the hear- ing,^ ^^ or where its purpose is to secure the specific dates on which it is alleged a house was disorderly, or to secure the residences of wit- nesses indorsed on the bill of indictment.'^^ 322. When granted. — The bill will be ordered when it is necessary that the charge be stated in more detail, so that defendant may be ^"Goersen v. Com. 99 Pa. 398 (mur- 26 Atl. 228; Com. v. McGlure, 1 Pa. Co. der) ; Williams v. Com. 91 Pa. 493 (per- Ct. 182. jury) ; Com. v. Johnston, 19 Pa. Super. "^ Com. v. Buccieri, 153 Pa. 535, 26 Ct. 241 (description of building in Atl. 228 ; (7om. v. Appie(/o*e, 1 Pa. Dist. housebreaking) ; Com. v. Oenncrette, 10 R. 127. Pa. Super. Ct. 598 (disturbing meet- "'Com. v. Volkavitch, 5 Kulp, 75. ing) ; Com. v. New Bethlehem, 15 Pa. ^^ Com. v. Eagan, 190 Pa. 10, 42 Atl. Super. Ct. 158 (nuisance) ; Com. v. Nor- 374. ton, 16 Pa. Super. Ct. 423 (counterfeit- ™ Com. v. Buccieri, 153 Pa. 535, 26 ing trade labels) ; Com. v. Meads (No. Atl. 228. 2), 14 York Legal Record, 132 (embez ^'^ Com. v. McClure, 1 Pa. Co. Ct. 182. zlement). '"' Oojh. v. Applegate, 1 Pa. Dist &, "' Com,. V. Buccieri, 153 Pa. 535, 547, 127. §§ 323-326] OBJECTIONS TO INDICTMENTS. 827 protected from a second prosecution for the same offense;*®* or to give more specific information needed for the preparation of the defense. It has been allowed on this ground for embezzlement/®^ conspiracy,* ^^ and obscenity.*®^ 323. Contents. — "When it is furnished to the defendant before plea entered, it ought to be as certain and convey as much information as a special declaration.**^ If exception be filed to the bill of partic- ulars filed, becaiise of the la,ek of sufficient particularity, the court may order a more specific bill to be prepared.*"^ 324. Effect of. — Where the bill of particulars is given, setting forth the acts to be proved by the commonwealth on the trial of the case, it will be confined in its evidence to the acts specified therein.*'"' Though this is true as to testimony covering these transactions in chief, it will not prevent a wider cross-examination of the defendant to test his general reliability and accuracy, and to test his credibility as a witness.*^* The fact that certain acts have been set forth will not preclude the commonwealth from proving confessions of the de- fendant.*'^^ 325. Amendment of. — The bill of particulars may be amended by the commonwealth, but only upon sufficient notiee.*^^ Since it may be altered or supplied to meet the exigencies of the case, it is error to quash a bill for conspiracy laid within the statutory period, because the bill of particulars averred overt acts committed more than two years prior to the commencement of the prosecution.*''* 326. Service of copy of indictment.— "Every person indicted for treason shall have a copy of the indictment and a list of the jury and witnesses to be produced on the trial for proving such indictment, mentioning the names and places of abode of such jurors and wit- ^°*Com. V. Rosenberg, 1 Pa. Co. Ct. ""Williams v. Com. 91 Pa. 493. 273, 3 Lane. L. Eev. 75. "» Com. v. Stanley, 19 Pa. Super. Ct. "' Com. V. Stanley, 19 Pa. Super. Ct. 58. Here certain accounts set forth in 58; Com. v. Tanner. 7 Northampton Co. hill. The commonwealth was allowed Rep. 74; Com. w. Maize, 4 Luzerne Leg. to cross-examine generally as to the Reg. 171, 1 Legal Record, Rep. 14, 7 books of account, concerning which he Legal Gaz. 199; Com. v. Crane, 1 Legal has been examined by the defense. Record, Rep. 134; Com. v. Roherts, 22 "''Com. v. Lovegrove, 10 York Legal Pa. Co. Ct. 214. Record, 159. ""' Com. V. Bartilson, 85 Pa. 482 ; ™ Com. v. Crane, 1 Leg. Record Rep. Com. V. Wilson, 1 Chester Co. Rep. 538. 134 (it was here held too late to do so "' Com. V. Ha/vens, 6 Pa, Co. Ct. 545. upon the trial, and the amendment was '*' Com. V. Morton, 9 Lane. Bar, 79, 6 refused) ; Com. v. Bartilson, 85 Pa. 482. Luzerne Leg. Reg. 207. "* Com. v. Bartilson, 85 Pa. 482. '" Com. V. Roberts, 22 Pa. Co. Ct. 214. 326 CRIMINAL AND PENAL PEOCEDUEE. [ohap. xiv, nesses, delivered to him three whole days before the trial."^''® The trial cannot proceed until this is done.^''® "'Act March 31, 1860, P. L. 427, i "' United States v. Insurgents, 2 Ball. 35. This section is taken from the act (Fa.) 335, 342. of Congress of April 23, 1790, § 29, U. S. Eev. Stat. § 1033, U. S. Comp. Stat 1901, p. 722. CHAPTER XV. ARRAIGNMENT AND ISSUE. 327. Arraignment. 328. When plea entered. 329. Plea of guilty. 330. Plea of not guilty. 331. Effect of entry. 332. Standing mute. 333. Where defendant is corporation. 334. Plea of nolo contendere. 335. Plea of former acquittal. 336. What constitutes acquittal. 337. Effect of partial acquittal. 338. Identity of offense. 339. Acquittal of greater offense. 340. Acquittal of lesser offensa. 341. Sufficiency of first indictment. 342. Plea of former conviction. 343. Identity of offense. 344. Conviction of greater or lesser offense. 345. Sufficiency of first indictment. 346. Review of court's action. 347. Former jeopardy. 348. Plea of statute of limitations. 349. Plea of pardon. 350. Plea in abatement. 327. Arraignment. — "In all cases of felony the prisoner shall be arraigned, and where any person on being so arraigned shall plead not guilty, every such person shall be deemed and taken to put himself upon the inquest or country for trial, without any question being asked of him how he will be tried, and the inquest shall be charged only to inquire whether he be guilty or not guilty of the crime charged against him, and no more. And wherever a person shall be indicted for treason or felony, the jury impaneled to try such per- son shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony."^ Arraign- ment was subsequently limited to those felonies which are solely tri- able in the courts of oyer and terminer,^ and in 1895 to murder alone. •Act March 31, 1860, P. L. 427. § 25. 'Act January 7, 1867, P. L. 1369, § 4. 329 830 CRIMINAL AND PENAL PROCEDURE. [chap. xv. In all oiLer eases the defendant shall only be required to plead orally or by writing indorsed on the indictment.^ When a change of venue has been granted after plea entered, a sec- ond arraignment in the county of trial is not necessary.* The entry of the arraignment on the record seems to be necessary only in cases that were at any time capital under our acts of assembly.® 328. When plea entered. — The plea must be entered before the jury is sworn. If not, the jury may be discharged, a plea entered, and a new jury impaneled.® If the date of entry be incorrectly indorsed upon the bill, it may be amended, being a clerical error.'' 329. Plea of guilty. — An entry of the plea of guilty admits the correctness of the charge in the indictment, and the court may imme- diately pass sentence. Having been entered, it can be withdrawn only by leave of court in the exercise of its discretion. When it appears that it was entered without proper consideration, it may be with- drawn.® But if the circumstances shown to the court do not impress it favorably, the application will be refused.^ And the plea of guilty to an indictment for forgery will not be withdrawn, where the pris- oner alleges as a reason that he thought the intent charged was to de- fraud A, and not B, wlien he does not deny the charge.^" It is inti- mated in Com. v. Ramsey^'^ that the court will never allow the with- drawal of the plea, for the purpose of interposing a demurrer, or mo- tion to quash. Though in a capital case the latter might be allowed. 330. Plea of not guilty. — The plea of not guilty or the general is- sue is a general denial of the facts set forth in the bill. When entered, the district attorney must join issue.-'^ The failure to so do is not, however, a fatal defect, but is amendable.-'^ 331. Effect of entry. — "Ifo verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed, nor sentence delayed, for any defect or error in the precept issued from any court, or in the venire issued for the summoning and returning of jurors, or for any defect or error in drawing, summoning, or returning any "Act May 15, 1895, P. L. 71. here sentence had been delayed three *Com. V. Pisiorms, 12 Phila. 550, 35 times at the request of the prisoner. Phila. Leg. Int. 164. Buch v. Com. 107 Pa. 486, was cited to 'Jacobs V. Com. 5 Serg. & R. 315. show that the withdrawal was a matter ' Oom. V. Raffolowitm, 8 Montg. Co. L. of right, but the court held otherwise. E«p. 210. " Com. V. Stephenson, 9 Kulp, 561. ^ Oom. V. Ohaunoey, 2 Ashm. (Pa.) "1 Brewst. (Pa.) 422. 90. Date nearly one year prior to the " This he does by the words "et de hoc correct one. dist. atty. similiter," or abbreviations ° Oom. V. Oerrity, 1 Lack. Legal Rec- thereof, according to local practice, ord, 430. ^'Wilson v. Oom 10 Serg. & R. 373; • Oom. V. Joyce, 7 Pa. Dist. R. 40O— Oom. v. Ault, 10 Pa. Super. Ct. 651. §§ 883, 838] ARRAIGNMENT AND ISSUE. 831 juror, or panel of jurors, but a trial, or an agreement to try on the merits, or pleading guilty, or the general issue in any case, shall be a waiver of all errors and defects in, or relative or appertaining to, the said precept, venire, drawing, summoning, and returning of jurors."^* Objections to indictments for formal defects must also be taken prior thereto. "Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on mo- tion to quash such indictment, before the jury shall be sworn, and not afterward ; and every court before whom any such objection shall be talcen for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by the clerk or other officer of the court, and thereupon the trial shall pro- ceed as if no such defect appeared."^' This section says before jury sworn, but it has been held to mean before plea entered.^® 332. Standing mute. — "If any prisoner shall, upon his arraignment for any offense -with which he is indicted, stand mute or not answer directly, or shall peremptorily challenge above the number of persons summoned as jurors for his trial to which he is by la-\K entitled, the plea of not guilty shall be entered for him on the record, the super- numerary challenges shall be disregarded, and the trial shall proceed' in the same manner as if he had pleaded not guilty, and for his trial had put himself upon the country."^'' Thus, where the defendant declines to plead to an indictment for libel, the court directs the plea of not guilty to be entered for him.^* In case the court does so act, and the defendant then cross-examines and calls witnesses, he cannot be heard after a conviction to object to defects in summoning or draw- ing of the grand jury.^^ 333. Where defendant is corporation. — If a corporation fails to en- ter an appearance to an indictment found against it, the court will not on motion enter a plea.^° The proper practice to secure the at- tendance of the corporation is to have a writ of venire facias ad re- spondendum issued to the sheriff, who thereupon summons the de- fendant to appear, delivering to it a copy of the indictment. Upon "Act March 31, 1860, P. L. 427, § 53, says that the trial shall in all cases be See also Juries, chapter xviil., post. a waiver of errors in jury process. •"Act March 31, 1860, P. L. 427, § 11. "Com. v. Lansford, 14 Pa. Co. Ct. "See chapter xiv., S 292, ante. 376, 3 Pa. Dist. R. 365 (indictment for "Act March 31, 1860, P. L. 427, § 26. nuisance. Not appearing, a, rule was ^^ Com. V. Place, 153 Pa. 314, 26 Atl. entered to show cause why the plea 620. should not be entered, which was re- ^'Dyott V. Com. (1839) 5 Whart. 67. fused 1 ; Com. v. North & West Branch R. Section 53 of the Penal Code of 1860 Co. 5 Kulp, 293. 833 CRIMINAL AND PENAL PROCEDURE. [chap. xv. failure to enter an appearance aiter this has been done, judgment may be taken by default.''^ 334. Plea of nolo contendere. — The plea of "nolo contendere" or "non volo contendere," although not technically a plea of guilty, is so in substance, and justifies the court in passing sentence on the de- fendant.^^ It has tho same effect as the plea of guilty so far as con- cerns the proceedings upon the indictmejit. "The advantage, howev- er, which may attend this plea is, that when accompanied by a protes- tation of the defendant's innocence it will not conclude him in a civil action from contesting the facts charged in the indictment."^* It may be withdrawn at any time before sentence.^* Such plea is but the equivalent of a confession, and cannot be used on the trial of the accessory to affect him.^^ 335. Plea of former acquittal.— The plea of autrefois acquit or con- vict is of a mixed nature consisting of matter of record and matter of fact ; of record, the indictment and verdict ; of fact, that the defend- ant is the same person and the offense is the same, and is in bar to the pending actien."^ To protect the accused from technical embarrass- ments, a section was introduced into the Penal Code of 1860 tosimpli- ' ij the pleas. "In any plea of autrefois acquit or autrefois convict, it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted, as the ease may be, of the offense charged in the indictment."^^ To the plea the commonwealth may demur, in which case the facts are admitted, but it is denied that such constitute a bar to the present prosecution. Or a replication may be filed, and the plea traversed. Either the identity of the person or offense, or both, may be denied, or the existence of such a record. "Nul tiel record" is not a good replication. The ploa should be traversed.^* This raises an issue to be determined by a jury preliminarily.^® If the verdict be for the defendant, he is entitled to a discharge, though the costs may be imposed on him.^"'' But if it be for the commonwealth, the court does not have the power to pass sentence, even in misdemeanors, "Com. V. T^eUgh Valley R. Co. 16.5 "Act March 31, 1860, P. L. 427, § Pa. 162. 27 L. R. A. 831, 30 Atl. 830, 30. i Reversing 14 Pa. Co. Ct. 341, 7 Kulp, =» Com. v. Boyer, 8 Phila. 611. 229. See this case for proceedings in " Com. v. Conner, 9 Phila. 591, 29 detail. Phila. Leg. Int. 13; Barge v. Com. 3 ^ Com. V. Holstine, 132 Pa. 357, 19 Penr. & W. 262. 23 Am. Dee. 81 ; Alten- Atl. 273. Ivrg v. Com. 126 Pa. 602, 4 L. R. A. ^ Buck V. Com. 107 Pa. 486. 543, 17 Atl. 799. ^Buck V. Com. 107 Pa. 486. ^a Com. v. Hngqins, 12 Pa. Co. Ct. " Buck V. Com. 107 Pa. 486. 496, 2 Pa. Dii3t. R. 329, 10 Lane. L. Rev. " Com. V. Moniross, 8 Pa. Super. Ct. 135, 23 Pittsb. L. J. N. S. 290. 237. §§ 336, S37J ARRAIGNMENT AND ISSUE. 838 but must enter judgment of respondeat ouster.^'' If both the pleas of autrefois acquit or autrefois convict and not guilty are entered, the trial should be had preliminarily on the first. ''^ If tried together, a general verdict of guilty in manner and form as he stands indicted will not sustain a sentence, since the finding on the plea of autrefois acquit does not appear.^^ !Ror will a general verdict of guilty, where the plea of autrefois convict had also been entered.^^ 336. What constitutes acquittal. — The plea of autrefois acquit is well made, when there has been an acquittal of the same offense, not- withstanding this was due to a misdirection of the court as to the law. Therefore an acquittal of larceny will not be reversed, though error appears, because no power to re-try exists.^* KTor will a new trial be granted under like circumstances.*^ I^or can a new trial be granted in nuisance cases after acquittal, though the power is given the appellate courts to reverse by the act of 1874.** It is immaterial that the acquittal was obtained by the fraud or misconduct of the de- fendant.*^ It must appear further that there was an acquittal. The entering of a nolle prosequi by the district attorney,*^ or an ignoring of the bill by the grand jury,*" is not such. For the effect of discharge on habeas corpus proceedings, or under the two-term rule, see those sub- jects. 337. Effect of partial acquittal.— Where the former acquittal is of a part of the charge, and a verdict of guilty as to the remainder is set aside and a new trial granted, the plea of autrefois acquit is good as to the charge of which there was an acquittal. Thus, a conviction of second degree on an indictment for murder will prevent a trial for the higher offense at the second hearing.*" Or a conviction on the sec- ond count of an indictment for larceny and inciting to commit will limit the prosecution on the second trial to the latter offense.*^ Or an acquittal on three of four counts prevents tlie commonwealth on new -.tni^l from convicting on any except the one charge of which the de- force V. Com. 3 Penr. & W. 262, 23 405, 42 W. N. C. 187, Rice, P. J., dis- Dec. 81. sents. lorn. V. Demuth, 12 Serg. & R. 389. "''Com. v. Pfhteger, 10 Pa. Dist. R. lorn. V. Demuth, 12 Serg. & R. 717. '^ Hester v. Com. 85 Pa. 139. Though ^olliday v. Com. 28 Pa. 13. a motion to discharge under the two- 7oTO. V. Steimling, 156 Pa. 400, 27 term rule was subsequently made. 297; Com. v. Seeman (Pa.) 12 '" Com. v. Miller, 2 Ashm. (Pa.) 61. .. Rep. 571, 14 AU. 329. " Com. v. Winters, 18 Phila. 667, 42 Com. V. Hayward, 4 Del. Co. Rep. Phila. Leg. Int. 344, S. C. 1 Pa. Co Ct. * 537. Com. V. Wallace, 7 Pa. Super. Ct. '^ Eollister v. Com, 60 Pa. 103. 884 CRIMI^rAL AND PENAL PROCEDURE. [chap. xt. fendant was found guilty."*^ If an indictment contain several counts, and the jury find defendant guilty of only one, this will act as an ac- quittal of others not constituent offenses of the charge of which he is found guilty.*^ 338. Identity of offense. — The second prosecution must be for the same offense as that charged in the indictment, on which the acquittal was had. A common test to ascertain whether the plea is a good bar is whetlier the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first.** Tried by this principle, a plea of former acquittal has been held to be well taken, when the judgment was arrested on the first in- dictment for fornication and bastardy, because the evidence showed the child to have been begotten in another county.*^ When the sec- ond indictment was for the larceny of other articles from the same person at the same time,** though it is for the jury to say that the taking was one and the same trarisaction.*^ And it is error to allow evidence to go to the jury of sales of liquor without a license on Sun- days, when there was a previous acquittal of sale on these Sundays, though a conviction could be had of sales on other days than Sun- day.** There is not such identity as will bar the second prosecution where the acquittal was of a railway for failure to lay out a new road in lieu of one lawfully taken, and the new charge is for unlawfully entering upon and obstructing a highway.*' Where the first was for forging election returns of a certain township, and the second for forging election returns of another to'wnship for the same election.''** Where the first is for altering and destroying ballots, and the second for mak- ing false election returns.^' Where the first indictment was for mur- " Com. V. Weller, 1 Northampton Co. versed, and sentence ordered to be Rep. 271. passed. " Com. V. Bolby, 18 Phila. 429, 42 " Com. v. Drieslach, 29 Phila. Leg. Phila. Leg. Int. 271. Here convicted on Int. 333, S. C. 1 Luzerne Leg. Reg. 543. first count. This did not act as acquit- " Com. v. Conner, 9 Phila. 691, 29 tal on count two, which was a constitu- Phila. Leg. Int. 13. ent offense, but did of count three, "Aitcmfcurff v. Com. 126 Pa. 602, 4 L. which was not. '^- ^- ^^^' ^^ Atl. 799. The error in " Com. V. Allegheny Yallev R. Co. 14 <*'» ^^^ ^^^ properly corrected in Com. Pa. Super. Ct. 336. v. Montross, 8 Pa Super. Ct. 237. '^Heikes V. Com. 26 Pa. 513. The ^^ £<""■ ^■„f"«?2*"2' ^<^^^y «• O"- 1* court of the county where the child is ,i ^"P^""' SJ" .'*'"'• „ . „ ., , ... ..,.•' ... t J. ^ Com. V. Trimmer, 84 Pa. 65. bom has jurisdiction by virtue of stat- „ p„^ ^ ^^j^ 'ig pj^i,^ 45^ 4,, utory enactment of both offenses. The p^iia. Leg. Int. 100. It was said in overruling of the plea to the second in- this case that the defendajit cannot wait dictment was held error, but the arrest- until after trial to take advantage of ing of judgment on the first was re- his former acquittal. §§ 339-^41] ARRAIGNMENT AND ISSUE. 333 der, and the second for involuntary manslaughter, there being no evi- dence on the second trial of a felonious homicide. ^^ 339. Acquittal of greater offense. — If there be an acquittal of a greater offense on which indictment there could have been a convic- tion of a lesser offense included therein, there can be no subsequent prosecution for it. Thus, an acquittal of larceny and receiving stolen goods vsrill bar a conviction for housebreaking with intent to steal the same goods, since the evidence to support the latter would have sus- tained a verdict of guilty of attempted larceny under the first indict- ment.^^ But if there could have been no conviction of the lesser, the rule is otherwise.^* 340. Acquittal of lesser offense. — Where there is an acquittal of the lesser offense, no prosecution can be had for the greater, where the evidence necessary to convict of the latter would have been sufficient to sustain a conviction on the former. Thus, an acquittal of assault and battery is a bar to an. indictment for mayhem,^^ or assault and battery to aggravated assault and battery.^* And where the acquittal negatives the presence of some essential ingredient of ike second of- fense, it is barred. Acquittal of seduction prevents trial for fornica- tion and bastardy, "'' of statutory rape bars indictment for adultery.^* 341. Sufficiency of first indictment. — Not only must it appear that there was an acquittal of an offense having elements of identity, but the first indictment must be one which is capable of sustaining a judg- ment. Thus, where the first charges a false pretense as of a date when no statute made such an act a crime, and it was not such at common law, an acquittal thereon is no bar to another indictment charging the same offense to have been committed subsequent to the passage of the act.^* Or an acquittal on a bill charging improperly a husband and wife with conspiracy would not prevent another prosecution.*'* So, it is no bar if the court first trying had no jurisdiction.®^ ^Hilands v. Com. 114 Pa. 372, 6 Atl. "" Dimkey v. Com. 17 Pa. 126, 55 Am. 267 ; Com. v. Bkeels, 13 Pa. Co. Ct. 174, Dec. 542. 2 Pa. Dist. E. 761. "^ Com. v. Mcllvmn, 17 Pa. Co. Ct. ■^ Com. V. Tad/rick, 1 Pa. Super. Ct. 174, 5 Pa. Dist. R. 175. 555, 38 W. N. C. 215. "Com. v. Zepp, 3 Clark (Pa.) 311. " Com. V. Bass, 4 Kulp, 76, 3 Lane. «° Com. v. Allen, 24 Pa. Co. Ct. 65. L. Rev. 278, 1 Lehigh Valley L. " Com. v. Eagles, 7 W. N. C. 324— the R. 299. Here there had been an elec- first trial was before a justice and jury tion to try for rape alone. The second of six. It was held no jurisdiction ex- indictment was for assault with intent isted because not based on oath or af- to ravish. There was also some doubt firmation, and because the act allowing as to whether it was the same assault, such procedure was unconstitutional. " Com. V. Morgan, 9 Kulp, 573. The act has since been held to be consti- ™ Com. V. Rosenkranz, 1 Lack. Jur. tutional. Lavery v. Com. 101 Pa. 560. 455. 336 CRIMINAL AND PENAL PROCEDURE. [chap. xv. 342. Plea of former conviction. — For the procedure in the entering and hearing of this plea reference is made to the preceding sections on former acquittal, the controlling principles being the same. 343. Identity of offense. — As in the case of autrefois acquit, there ■ must be identity of offense charged. Thus, a conviction of selling li- quor without a license in 1871, on an indictment giving neither dates nor places, "vvill bar a conviction on a second indictment dependingupon proof of the same offense on dates prior to that of the first charge, though the time fixed in the second was 1872.*^ And a conviction be- fore a mayor for sale of liquor in violation of a city ordinance will bar a later prosecution for illegal sale at the same premises previous to that date when the first conviction was for an offense necessarily more or less continuous.®* But a conviction of an insolvent banker under the act of 1889 for receiving deposits of A, knowing his bank to be insolvent, will not prevent an indictment for receiving on the same day under similar circumstances the money of B.®* 'Nov will a conviction of fornication and bastardy on June 1, prevent an in- dictment for statutory rape Avith the same female on August 10.*^ 344. Conviction of greater or lesser offense. — A conviction of a greater offense is a bar to a lesser included therein. ®® Or of the les- ser to a subsequent indictment for the greater. Thus, bastardy being an incident to fornication, a conviction for the latter is a bar to an indictment for bastardy in the county where the child was bom.*'' And of fornication and bastardy to adultery and bastardy.®* 345. Sufficiency of first indictment. — The former conviction must have been upon an indictment sufficient to sustain the judgment. Thus, where a verdict for forgery could not sustain a judgment, be- cause of a fatal variance, and it was arrested, a second indictment may be found and trial had.®^ In such ease the court should arrest judgment, but the fact that a new trial has been granted, after which a corrected indictment is fotmd, will not enable defendant to plead his former conviction.''*' 346. Review of court's action. — A defendant whose plea of autre- " Com. V. Reiher, 4 Lane. Bar, No. 14. with intent to commit the rape. Dis- " Com. V. Sheridan, 7 Lack. Legal charged on habeas corpus. News, 373. "" Com. v. Lloyd, 141 Pa. 28, 21 Atl. "Com. V. RockafelloiB, 3 Pa. Super. 411. Ct. 588 ; Com. v. Hazlett, 14 Pa. Super. <" Com. v. Neely, 2 Chester Co. Rep, Ct. 352. 191. " Com. V. Walker, 15 Pa. Co. Ct. 418, ™ Pennsylvania v. Huffman, Addison 3 Pa. Diat. R. 348. (Pa.) 140. "Com. V. Reed, 4 Lane. L. Rev. 89. ''Harrison y. Com. 123 Pa. 508, 16 Conviction for rape and pardon. Held Atl. 611. for burglary in breaking and entering § 347] AKRAIGIsrMEJTT AND ISSUE. 337 fois convict is not sustained may have the decision of the lower court reviewed, but a joint conspirator cannot object to the adverse decision on the plea of his codefendant. He has no standing to complain of this." 347. Former jeopardy. — "]^o person shall, for the same offense, be twice put in jeopardy of life or limb."^^ By this constitutional provi- sion defendants placed in jeopardy are not to be put in the same posi- tion for the same offense a second time, even though the trial has not proceeded to the point of a verdict of acquittal or conviction. The defendant is not in jeopardy until a legal jury of twelve has been impaneled and sworn to try him of the offense. An impanel- ing of eleven, followed by a discharge of them and a continuance be- cause of the exhaustion of the list of jurors,''^ or of eight already chos- en on account of the discovery that certain names were not in the wheel,''* will not avail when the new jury is sworn, since the defend- ant is not as yet in jeopardy. But if twelve be so sworn, he is, and a discharge without necessity will prevent further prosecution. A distinction is to be noticed be- tween capital offenses, und those which are not. In the latter case the jury may be discharged in case of reasonable necessity, without affect- ing the right of the commonwealth to again try. Such necessity must be reasonable. A failure of the jury to agree after due efforts to do so will justify the discharge.''^ But the incompetency of a leading witness for the commonwealth because of lack of moral and religious training does not furnish a proper excuse.'® In capital cases there must be absolute necessity. "The serious ill- ness or insanity of the defendant, and the illness, insanity, or death of the judge or a juror engaged in the trial, have been held to create a necessity for the withdrawal of a juror and a postponement of the trial ; and it is not difficult to imagine other cases in which a similar holding should be made.'"'' But illness produced by misconduct on part of the court in refusing food to the jurors^ unless a majority agreed thereto, does not furnish such necessity.''® Nor does the sep- aration of the jury over night before the trial has commenced, but aft- er if has been sworn, for if the trial had resulted in a conviction of an " Com. V. Doughty, 139 Pa. 383, 21 ™ Com. v. Hetrich, 1 Woodw. Dec. 288. Atl. 228. Assault and battery with intent to com- "Pa. Const. 1874, art. 1, § 10. mit rape. Discharged on habeas corpus '"MeFadden v. Com. 23 Pa. 12, 62 proceedings. Am. Dec. 308. " Com. v. Fitepatrich, 121 Pa. 109, 1 ■"Alexander v. Com. 105 Pa. 1. L. E. A. 451, 15 Atl. 466. " McCrea/ry v. Com. 29 Pa. 323. ™ Com: v. Glu-e, 3 Eawle, 498. ■ Pa. Crim. Proe. — 22. SS8 CRIMINAL AND PENAL PROCEDURE. [chap. xv. offense less than capital, the separation would not have been a fatal error.''® Not will the mere disagreement of the jury constitute such necessity,*" even though the last day of the regular term had arrived, for it was within the power of the court to extend it.*^ But if the defendant has been granted a new trial on motion after conviction, he cannot successfully plead former jeopardy, though when the first verdict was rendered one of the jurors attempted to ex- plain that he consented to it because he believed the defendant irre- sponsible, which statement was interrupted by the court and the ver- dict taken, and the new trial was subsequently granted on the ground that the consent of the juror might have been due to physical ex- haustion.*^ To avail himself of this plea the prisoner must have been in jeop- ardy of the crime with which he stands charged, when pleading it. He was not in jeopardy when he could not have been convicted of the second offense on the first indictment; as, e. g., he could not be con- victed of involuntary manslaughter on a trial for murder,*^ or of murder on the preliminary trial of an issue under a plea in abate- ment of misnomer.** But if a conviction could have been had the second prosecution is barred. Thus, the plea was well taken where a trial had taken place for fornication and bastardy, and while the juiy was out defendant was called to answer an indictment for statu- tory rape based on the same acts, since under § 51 of the Penal Code it was within the power of the court to discharge tlie jury as to the misdemeanor when the facts showed a felony to have been committed, and to direct an indictment and trial for the felony."* 348. Plea of statute of limitations. — As has been seen, tbis defect when apparent may be taken advantage of by demurrer or motion to quash. It was earlier held that advantage could not be taken of the statute upon trial unless specially pleaded.*® But by later decisions the right to claim its benefit under the general issue is maintained.*^ "HiUmds v. Com. Ill Pa. 1, 56 Am. 267, 1 Pa. Go. Ct. 532; Com. v. SkeeU, Rep. 235, 2 Atl. 70. 13 Pa. Co. Ct. 174, 2 Pa. Dist. R. 761. "Com. V. Cooh, 6 Serg. & R. 577, 9 '^Alexander v. Com. 105 Pa. 1. Am. Dec. 465. Here the jury was ready " Com. v. Amer, 149 Pa. 35, 24 Atl. to give a verdict as to two joint defend- 83. ants without a verdict as to the third, " Com. v. Hutohmson, 2 Pars. Sel. Eq. and the jury was discharged. Cas. 453, 1 Phila. 77. "Com. v. Fitepatrick, )21 Pa. 109, 1 "Com. v. Ruffner, 28 Pa. 259; Com. L. R. A. 451, 15 Atl. 466. Four days v. Orise, 23 Pittsb. L. J. 138, 11 Phila. had been spent in consultation. 655, 33 Phila. Leg. Int. 138. Reversed " Com. v. Lutz, 200 Pa. 226, 49 Atl. on other grounds in 81 Pa. 428, 2 W. N. 771. C. 589, 33 Phila. Leg. Int. 257; Com. v. " Hilaada v. Com. 114 Pa. 372, 6 Atl. Bunn, 1 Legal Opinion, 114. §§ 349, 350] AREAIGNMENT AND ISSUE. 839 Where the special plea has been entered, and there is a verdict for the defendant, it is held that the costs of prosecution may neverthe- . less be imposed upon him.** 349. Plea of pardon. — Such a plea may be entered, but it must be by the person to whom, and for the offense for which, it was granted. Thus, the accessory cannot take advantage of the pardon to the prin- cipal.** 350. Plea in abatement. — Defects arising from misnomer can only be pleaded in abatement, and it seems that defendant must give a bet- ter name.®" Such was done and preliminary trial had to determine the question in Alexander v. Com.^^ The pendency of another indict- ment,®^ or the irregularity of the grand jury in examining witnesses whose names are not indorsed on the bill,®^ or the pendency of a civil suit arising from the same acts,®* cannot be taken advantage of in liis way. When such plea is decided for the commonwealth, the proper • judgment is respondeat onster.^^ ''Baldimn v. Com. 26 Pa. 171. " Jilla/rd v. Com. 26 Pa. 169. "Com. V. House, 10 Pa. Super. Ct. '* Foster v. Com. 8 Watts & S. 77. 259. Libel. •^ Com. V. Demam, 3 Clark (Pa.) 487, "Foster v. Com. 8 Watts & S. 77; Brightly (Pa.) 441. Barge v. Com. 3 Penr. & W. 262, 23 Am. •^ 105 Pa. 1. Dec. 81; Jillard v. Com. 26 Pa. 169. « Smith V. Com. 104 Pa. 339. CHAPTER XVI. LIMITATION AND SETTLEMENT OP PROSECUTIONa 351. Limitation of prosecutions generally. 352. In election offenses. 353. In nuisance. 354. Embezzlement by tax collectors. 355. In forgery. 356. Officers of banks or corporations. 357. Embezzlement by trustees. 358. Penal actions. 359. In desertion. 360. Exceptions to the operation of the statute. 361. Pleading the exception. 362. Computing the period. 363. Change of statutory period. 364. How taken advantage of. 365. Settlement of cases. 366. Assault and battery. 367. False pretenses. 368. Libel. 369. Embezzlement and conspiracy to defraud. 370. Fornication and bastardy. 371. Fraudulent removal of goods. 372. Felonies and infamous crimes. 373. Effect of settlement. 374. Nolle prosequi. 375. When entered. 376. Effect of. 377. Costs; when entered. 351. limitation of prosecutions generally. — "All indictments wBIcli shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter excepted, shall be brought or ex- hibited -within the time and limitation hereafter expressed, and not after ; that is to say, all indictments and prosecutions for treason, ar- son, sodomy, buggery, robbery, burglary, perjury, counterfeiting, forgery, uttering or publishing any bank note, check, or draft, know- ing the same to bo counterfeited or forged, shall be brought or ex- hibited within five years next after the offense shall have been com- mitted; and all indictments and prosecutions for other felonies not named or excepted heretofore, in this section, and for all misdemean- 340 §§ 353, 353] LIMITATION AND SETTLEMENT OF PROSECUTIONS. 341 ors, perjury excepted, shall he brought or exhibited within two years next after such felony or misdemeanor shall have been committed. . . . And provided, also. That indictments for misdemeanors committed by any officer of a bank, or other corporation, may be com- menced and prosecuted at any time within six years from the time the alleged offense shall have been committed."^ Under this provision the prosecution for fornication and bastardy must be begun within two years of the date of the fornication.^ Big' amy takes place at the date of the second marriage, and the statute runs from that time.^ In perjury Hyg years are allowed, which in- cludes subornation of perjury.* The prosecution for conspiracy must be begun within two years from the making of the unlawful agreement. An indictment found later will not be cured by charg- ing its renewal from time to time, and an overt act within two years, for it is the agreement which constitutes the crime, the overt ax;ts merely being evidence of this; and though renewed agreements are criminal, they constitute offenses in themselves, and cannot be joined in a count alleging the original crime.® An indictment for cock fighting is in time if found witliin two years, since the proviso of the act of March 12, 1830,® requiring informations within forty-eight hours, is repealed by § 77 of the procedure acf 352. In election offenses. — Under the act of July 2, 1839,* certain election offenses were made punishable within one year after the date of commission. If, however, the crime be punishable not by the ex- press provisions of that act, but by the common law or some other en- actment, the provisions of the act of March 31, 1860, will control, and two years be allowed.® 353. In nuisance. — Where there is a repetition of the criminal of- fense, as in nuisance cases, though the beginning of the nuisance was more than two years before the beginning of the prosecution, yet a conviction of maintaining the nuisance within the statutory period ' Act March 31, I860, P. L. 427, § 77. which held that the statute did not run ' Com. V. Ruffner, 28 Pa. 259. De- until the end of the conspiracy. This cided under act of March 10, 1852, but case appears by briefs to have been be- the same provision is made in the act fore the supreme court in Com. v. Bar- of 1860. tilson, 85 Pa. 482, but is not discussed. = Gise V. Com. 81 Pa. 428 ; Com. v. Mo- ° P. L. 80, § 1. Nerny, 10 Phila. 206, 31 Phila. Leg. Int. ' Com. v. Deckard, 7 Pa. Dist. R. 400. 172. ' P. L. 519, § 128. • Com. V. Dengler, 2 Chester Co. Rep. ' Com. v. McEale, 97 Pa. 397, 39 Am. 499. Rep. 808. Conspiracy to prevent free " Com. V. Bartilson, 85 Pa. 482. See election. Com. V. Wishart, 8 Legal Gaz. 137, 343 CRIMINAL AND PENAL, PROCEDURE. [chaf. xvi. will be sustained,^" though where the fact that a certain business is a nuisance is denied, the length of time it has been in operation may be shown to prove this fact.^^ Adverse possession may be acquired against private individuals, but not against the state, and where the act consists in the erection of a building on property of the commonwealth, though the actual con- struction was many years before, the defendant may be convicted for maintaining it within two years.^* 354. Embezzlement by tax collectors. — In prosecutions of tax col- lectors for defalcation under the act of June 3, 1885, a conviction may be had, and is not barred by the statute of limitations, where the defendant has been in default as to moneys collected within two years of the finding of the indictment, although he used some of the moneys collected within the two years to make good defalcations of previous years, and although he paid into the treasury during the two years more money than he had collected in that time.** 355. In forgery. — By the act of 1860 certain forgeries could be prosecuted within five years. This was subsequently extended to any forgery. "Hereafter the offense of forgery, whether the same be a misdemeanor or felony, shall not be held barred by the statute of limitations when the indictment therefor shall have been broiight or exhibited within five years next after the offense has been com- mitted."!* 356. Officers of banks or corpcrations. — Special provision was also made in the act of 1860 for ofiicers of banks or other corporations, the period of limitation being fixed at six years. By the act of June 12, 1878,*® this was extended and modified as follows: "Indict- ments for misdemeanors committed by any officer, director, receiver, superintendent, manager, broker, attorney, agent, employee, or mem- ber of any bank, body corporate, or public company, municipal, or quasi-municipal corporation, may be commenced and prosecuted at any time within four years from the time the alleged offense shall have been committed." Persons employed by the gas works depart- ment of the city of Philadelphia come within this supplementary pro- "(7om. V. T(m Siclde, i Clark (Pa.) Whart. 469; Com. v. Miltenberger, 7 104. Watts, 450. " Com. V. Miller, 139 Pa. 77, 21 Atl. " Com. v. MoCullough, 19 Pa. Super. 138; Com. v. Rush. 11 Lano. L. Rev. 97. Ct. 412. "Com. f. Moorehead, 118 Pa. 344, 12 "Act March 23, 1877, P. L. 26, § 1. Atl. 424; Northern C. B. Co. v. Crnn. "P. L. 196, § 6. 9 W. N. C. 129; Com. v. M'Donald, 16 '» (7«ip v. Com. 109 Pa. 363. Serg. & R. 390; Com. v. Alburger, 1 §§ 857-360] LIMITATION AND SETTLEMENT OF PROSECUTIONS. 843 357. Embezzlement by trustees. — "AH indictments for embezzle- ment by administrators, executors, guardians, and trustees may be brought or exhibited at any time -within five years from the final de- cree of the court adjudicating the final accounts of the said trus- tees."!^ 358. Penal actions. — Except in those cases where the act of assem- bly expressly directs a shorter time, all actions, suits, bills, indict- ments, or informations shall be brought for any forfeiture, upon any penal act of assembly made or to be made, whereby the forfeiture is or shall be limited to the commonwealth only, within two years after the offense was committed, and at no time afterwards. Where the forfeiture is for the benefit of the person who prosecuted, then within one year, but if not done within that time by the person having the right, then within one year after that year by the commonwealth.-'^ This act was extended to the penalties provided in the act of April 12, 1828,!® relating to circulation of small notes by banks by the act of April 21, 1841 f to fines directed to be paid treasurers and county commissioners for the use of the county by the act of July 16, 1842 f^ and to fines payable to counties, whether in whole or in part by act of February 24, 1845." 359. In desertion. — These statutes are ineffective as to desertion proceedings,^® and it has been held that a lapse of twenty years from the time of desertion will not bar an action under the act of 1836 to enforce support.^* In the collection of amounts due after judgment entered, the statute runs from the end of the first week after the de- cree is entered, or from the date of the last payment to the wife. Only such sums are collectible as accrue within six years prior to the is- suing of the execution.^^ 360. Exceptions to the operation of the statute. — Under certain conditions the statute does not begin to run from the commission of the offense. "If the person against whom such indictment shall be brought or exhibited, shall not have been an inhabitant of this state, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person "Act April 23, 1889, P. L. 48, § 1. ^ Com. v. Kerhey, 8 Pa. Dist. R. 671, " Act March 26, 1785, 2 Smith's Laws, 30 Pittsb. L. J. N. S. 162. 299, § 6. ^Delwware County Directors of Poor "P. L. 328. V. Mercer, 2 Clark (Pa.) 75. '°P. L. 249, § 13. "Com. v. Steiger, 12 Pa. Co. Ct. 334, " P. L. 374, § 55. 2 Pa. Dist. R. 493, 10 Lane. L. Rev. 11. « P. L. 69, § 1. 34 1 CRIMINAL AND PENAL PROCEDURE. [chap. xvi. at any period within a similar space of time during whicli he shall be an inhabitant of, or usually resident within, this state."^® This does not apply to eases where the crime has merely been un- discovered. That will not prevent the statute running from the time of the commission of the criminal act. "Crimes are generally com- mitted in secret, and if the difficulties in discovering them arrested the running of the statute, it would be rendered almost nugatory."^^ So the statute runs in false pretenses from the making of the rep- resentations, notwithstanding the concealment of the offense by the defendant.^^ Nor will the privilege of defendant from arrest for a portion of the time affect it.^' !N"or is the time lengthened as to one imprisoned in another county, though a detainer be there lodged for him.*" Nor will an agreement to support work as an estoppel to setting up the statute on an indictment for fornication and bas^ tardy. ^^ The provision applies where one has absented himself from the state or usual residence therein. In such case the statute does not commence to run until his retum.^^ No difficulty is encountered if the fugitive goes beyond the state. But suppose he conceals him- self within the state ? "Whether the exception applies in such case is a question of some dispute. In Blackman v. Com?^ the supreme court did not decide it. In Com. v. Blackburn,^* where the indict- ment was found nearly five years after the offense was committed, the court declined to charge that, to come within the exception, the jury must find the defendants were without the state, but said it was immaterial whether vrithin or without, if escape was made to avoid arrest. So, where the defendant went to Philadelphia to en- gage in business, it was left to the jury to say whether this was done to avoid arrest, and, if so, the case came within the exception.*^ One decision is found to the contrary, where there was concealment within the state.^® If the defendant be an enlisted officer in the army =»Act March 31, 1860, P. L. 427, § "^Com. v. Werner, 5 Pa. Super. Ct. 77. 249, 41 W. N. C. 48. " Com. V. Ruffner, 28 Pa. 259. "■ Blachmwn v. Com. 124 Pa. 578, 23 ^ Com. ex rel. Whitaker v. The Sher- W. N. C. 464, 46 Phila. Leg. Int. 326, iff, 3 Brewst. (Pa.) 394. 20 Pittsb. L. J. N. S. 28, 17 Atl. 194; " Com. V. Bunn, 1 Legal Opinion, 114 Com. v. Bates, 1 Pa. Super. Ct. 223, 12 -—privilege of member of legislature. Montg. Co. L. Eep. 41. By the Constitution of 1S74 no such i» 124 Pa. 578, 23 W. N. C. 464, 46 privilege exists in criminal eases. Com. Phila. Leg. Int. 326, 20 Pittsb. L. J. N. ex rel. Bullard v. Keeper of Jail, 13 S. 28, 17 Atl. 194. Phila. 573, 35 Phila. Leg. Int. 80, 4 \V. ■* 3 Pa. Co. Ct. 464. N. C. 540. »■ Com. v. Smith, 19 Pa. Co. Ct. 397. " Com. V. Woodward, 1 Chester Co. A similar determination is found in Rep. 102. That would not prevent the Com. v. Merrick, 2 Dauphin Co. Rep. 120. finding of an indictment. '"Heist v. Heist, 25 Pa. Co. Ct. 87. §§ 361, 362] LIMITATION AND SETTLEMENT OP PROSECUTIONS. 346 the exception cannot apply, for residence within the state continues in such case at defendant's usual place of abode.^'^ 361. Pleading the exception. — Where an indictment is found for an offense ordinarily barred by the statute, the time should be laid as of the date when it occurred, and the circumstances which bring it within the exception should be set forth. But it is not fatal if a time be laid within the statute, and upon the trial the actual date be proved with the facts which prevent it being barred.^* Or the counts charging the offense may be followed by a presentment show- ing the exception.^* If the statxitory exception be not pleaded, the indictment must be quashed,*" when it appears on its face that the statutory period has elapsed. To prove the exception the common- wealth must show the issuance of the warrant, the flight of the de- fendant and his absence from his usual place of residence within the state, and the efforts to learn his whereabouts with a view to arrest. This is sufficient to make a prima facie ease. The commonwealth is not bound to show where the defendant was.*^ 362. Computing the period. — When the statute fixes a period with- in which the prosecution shall be commenced, the finding of the in- dictment by the grand jury is the initial point The mere making of an information is not sufficient.*^ But it is not necessary that the case be prosecuted to final judgment within that time,*^^ or that sen- tence be passed.** By the use of the words "brought and exhibited," as used in the act of 1860, a personal showing of the indictment to the defendant is not meant, but the mere finding of the same.** The court has the power to call a grand jury for one of the regular quar- terly terms of criminal court, as previously fixed, ordered, and ad- vertised, to meet prior to the term so fixed for holding the regular term, and at a time for holding an adjourned session of court, in or- " Graham v. Com. 51 Pa. 255, 88 Am. 249, 41 W. N. C. 48; Com. v. Bartilson, Dee. 581. Here conviction of adultery 85 Pa. 482 ; Com. v. Owens, 3 Kulp, 230 ; set aside. The defendant had not en- Com. v. Seymour, 2 Brewst. (Pa.) 567. listed for several months after the com- ^ Blachman v. Com. 124 Pa. 578, 23 mission of the offense, and was fre- W. N. C. 464, 46 Phila. Leg. Int. 326, quently where the warrant could be 20 PittsK L. J. N. S. 28, 17 Atl. 194; served. Com. v. Bates, 1 Pa. Super. Ct. 223, 12 "Blackmem v. Com. 124 Pa. 578, 23 Montg. Co. L. Rep. 41. W. N. C. 464, 46 Phila. Leg. Int. 326, 20 "^ Com. v. Baas, 57 Pa. 44S. Pittsb. L. J. N. S. 28, 17 Atl. 194; Com. '^a Com. ex rel. WMtaker v. The Sher- V. Blachhum, 3 Pa. Co. Ct. 464. iff, 3 Brewst. (Pa.) 394. "' Roseriberger v. Com. 118 Pa. 77, 11 ''Com. v. Alsop, 1 Brewst. (Pa.) 328, Atl. 782. 6 Phila. 371, 24 Phila. Leg. Int. 196. "Com. V. Werner, 5 Pa. Super. Ct. ''Com. v. Anspach, 15 W. N. C. 414. 841 CRIMINAL AND PENAL PROCEDURE. [chap. xvi. der to pass upon indictments which woiild otherwise have come be- fore them at a regular term, and might then have been barred.*® In computing the time, the day on which the offense was com- mitted is to be excluded in determining whether the statutory limit has been passed. Thus, an indictment on September 9, 1895, for an act done on September 9, 1893, is not barred.*® 363. Change of statutory period. — Wliere an act of assembly is passed by which the statutory period for prosecution is increased, it is applicable to offenses committed before the act, which are not at the time of its enactment as yet barred.*^ But where the immunity from prosecution has been absolutely acquired by the completion of the period of limitation, such act is not applicable, for it would be an ex post facto law. 364. How taken advantage of.— It had been held that the statute of limitations must be specially pleaded,** but this decision has been overruled by the supreme court.*® The defense may be raised by demurrer or motion to quash,°° or submitted for trial to the jury without being specially pleaded,®^ but should not be first raised on motion in arrest of judgment.®^ 365. Settlement of cases. — "In all cases where a person shall, on the complaint of another, be bound by recognizance to appear, or shall, for want of security, be committed, or shall be indicted for an assault and battery or other misdemeanor, to the injury and damage of the party complaining, and not charged to have been done with intent to commit a felony, or not being an infamous crime, and for which there shall also be a remedy, by action, if the party complain- ing shall appear before the magistrate who may have taken recogni- zance or made the commitment, or before the court in which the in- dictment shall be, and acknowledge to have received satisfaction for such injury and damage, it shall be lawful for the magistrate, in his "Com. V. Smith, 16 Pa. Co. Ct. 568, Com. v. Hutchinson, 2 Pars. Sel. Eq 12 Lane. L. Rev. 329. Cas. 453, 1 Phila. 77. « Com. V. Wood, 17 Pa. Co. Ct. 133, « Com. v. Hutchinson, 2 Pars. Sel. Eq. 5 Pa. Dist. R. 179, 26 Pittsb. L. J. N. Cas. 453, 1 Phila. 77. S. 181, 1 Lack. Legal News, 404. *' Com. v. Ruffner, 28 Pa. 259. See also " Com. V. Duify, 96 Pa. 506, 42 Am. Com. v. Blackburn, 3 Pa. Co. Ct. 464. Rep. 554. Here forgery committed, "" C?om. v. Buren, 1 Legal Opinion, 114. which, under the act of 1860, would be " Com. v. Ruffner, 28 Pa, 259 ; Com. barred in two years. Before this time v. Grise, 23 Pittsb. L. J. 138, 11 Phila. elapsed the act of 1877 increased the pe- 655, 33 Phila. Leg. Int. 102, Reversed on riod to five years. Held, the case was other grounds in 81 Pa. 428, 2 W. N. C. controlled by the latter enactment, and 589, 33 Phila. Leg. Int. 257; P. L. 427, a prosecution could be maintained § 9. though begun more than two years after "" Com. v. Alsop, 1 Brewst. (Pa.) 328, the commission of the offense. See also 6 Phila. 371, 24 Phila. Leg. Int. 196. §§ 366, 367] LIMITATION AND SETTLEMENT OF PROSECUTIONS. 347 discxetion, to discharge the recognizance which may have been taken for the appearance of the defendant, or in case of committal, to dis- charge the prisoner, or for the court also, where such proceeding has been returned to the court, in their discretion, to order a nolle pros- equi to be entered on the indictment, as the ease may require, upon payment of costs ; Provided, That this act shall not extend to any as- sault and battery, or other misdemeanor, committed by or on any of- ficer or minister of justice."^* "This act, it will be observed, does not apply to all misdemeanors. It is expressly restricted to such as are (1) to the injury and damage of the party complaining; (2) such as are not charged to have been done with intent to commit a felony ; (3) such as are not infamious crimes; and (4) those for which there shall also be a remedy by action. These conditions must all concur. If either be wanting, the act does not apply."** In assault and battery, it is made the duty of the justice to dis- miss the proceedings, at the mutual request of the complainant and defendant, mailing a record of the same in his docket with the agree- ment, though the justice must be satisfied that such settlement will not injure the safety of the citizens, or the peace of society.®^ Though the justice may discharge a case after hearing for lack of sufficient evidence, yet where the defendant has been held for court he cannot, under the enactments above recited, settle the case without the consent of the complainant.** Even when the magistrate does permit the settlement in the cases in which allowed by the 9th section of the criminal procedure act, the information with all the proceed- ings thereon should be returned to court.*'' 366. Assault and battery. — Assault and battery cases, not charged to have been done with an intent to commit a felony, may be settled, and a contract to pay money or give property to the complainant for so doing is not against public policy, but is enforceable.*® 367. False pretenses. — "There is nothing in the law to prevent the prosecutor in a case of false pretenses from compounding the offense, and abandoning the prosecution. If the defendant will make resti- tution, there is no legal objection to its reception by the prosecutor, "Act March 13, 1860; P. L. 427, § 9. for court. Subsequently he tendered " Sterrett, J., in Pearce v. Wilson, the fine and costs, and the justice set- Ill Pa. 14, 56 Am. Rep. 243, 2 Atl. 99. tied the case. On certiorari held im- ■» Act March 17, 1806, 4 Smith's Laws, proper. 318, § 1. ■" Charge to Orcmd Jury, 3 Pittsb. '°Com. V. Lauhacher, 4 Pa. Co. Ct. 174. 606. Here under the act of June 8, " Rushworth v. Dwyer, 1 Phila. 26; 1881, a fine was imposed, which the de- Castner v. Cornell, 1 Luzerne Leg. Oba. fendant refused to pay, and gave bail 58. 543 CRIMINAL AND PENAL PROCEDURE. [chap. xvi. the offense being merely a misdemeanor. If the defendant may make restitution, he may do so by paying the cash, or he may give his note or other obligation therefor, if the prosecutor is willing to ac- cept it."^^ And such obligation given may be sued on, and a recov- ery had.®" 368. Libel. — Libel prosecutions come within the class of cases which may be settled.®^ 369. Embezzlement and conspiracy to defraud. — But the act does not contemplate the settlement of all misdemeanors. "It is very evi- dent, from the phraseology of the act, that it was not intended to ap- ply to misdemeanors of so grave a character as either of those in ques- tion, but only to such as are to the personal injury and damage of the prosecutor, and do not specially affect the public."*^ So, it has been held that embezzlement could not be settled, and an obligation given in satisfaction was founded on an illegal consideration and could not be enforced.^^ To take advantage of this defense the de- fendant must prove the agreement.®* But if the security be given by a third party to secure an extension of time for a debtor who has so settled, we have a new consideration, and the obligation is enforce- able."" 370. Fornication and bastardy. — Of fornication and bastardy pro- ceedings, it was held under the act of 1819, now supplied by the act of 1860, which authorized the entry of a nolle prosequi upon settle- ment by the pajiies, that they were for a private wrong, and could be terminated by them.®" Since the act of 1860, obligations given in set- tlement of these cases have been enforced between the parties, the ™ Paxson, J., in Steinhaker v. Wilson, Co. Ct. 28. The contrary was held by Lejal Gaz. Rep. 76. lower courts in Philadelphia £ R. B. Co. '" Steinbaker v. Wilson, Legal Gaz. v. Slemmer, 6 W. N. C. 451, and Wil- Rep. 76; Rothermal v. Hughes, 134 Pa. Hams v. Dreshler, 14 W. N. C. 211. The 510, 19 Atl. 677; Geier v. Shade, 109 latter case, decided soon after Riddle v. Pa. 180. In this case a new warrant was Hall, 99 Pa. 116, distinguished it by issued on the same information. The saying the offense there was larceny, but right to reinstitute the criminal pro- that could not be said of the later de- ceeding after settlement is not dis- terminations, cussed. «* Swope v. Jefferson F. Ins. Co. 93 Pa. " Com. V. Place, 7 Montg. Co. L. Rep. 251 (mere threats of prosecution do not 164. And where the recognizance has justify the inference that the security been forfeited after the settlement, of was given as the result of an agreement which the district attorney is not not to prosecute) ; Saalfield v. Manrow, aware, the forfeiture will be remitted. 165 Pa. 114, 30 Atl. 823. "" Sterrett, J., in Pea/rce v. Wilson, 111 ^ Saalfield v. Manrow, 165 Pa. 114, 30 Pa. 14, 56 Am. Rep. 243, 2 Atl. 99. Atl. 823. 'middle V. Hall, 99 Pa. 116; Pea/rce " Maurer v. Mitchell, 9 Watts & S. V. Wilson, 111 Pa. 14, 56 Am. Rep. 243, 69, overruling a dictum to the contrary 2 Atl. 99; Saalfield v. Manrow, 165 Pa. in Shenk v. Mingle, 13 Serg. & R. 29. 114, 30 Atl. 823; Ash v. Jackson, 26 Pa. § 371] LIMITATION AND SETTLEMENT OF PROSECUTIONS. 849 obligation being held not to be based on an illegal consideration.*^ But it has been held, though the courts usually recognize such com- promise between the parties, and order the esntry of a nolle prosequi, that the district attorney is not bound to do so, if he thinks the piiblic interest requires a prosecution, but may proceed.** In Com. v. Pyott,^^^ Clayton, J., said, in refusing a motion for a rwlle prosequi after a settlement by the parties, "the crime of fornication and bas- tardy is an offense against public morals and decency. It is not within the spirit of the act of assembly. The persons assuming to settle, both the prosecutrix and the defendant, were guilty of a mis- demeanor. It is clear that the parties to a crime cannot be permit- ted to settle it. If the act should be so construed as to include such crimes as fornication, adultery, and the like, there could be no con- viction for these offenses. This certainly cannot be the true intent of the act."*® The question has been adjudicated by the appellate court in Com. v. Scott,'"' in which it was said : "In fornication and bastardy cases the motl:er is not the only person interested, and con- sequently she has not the exclusive right to relieve the putative father from the maintenance of his offspring, and before or after conviction she has no power to contract in regard to the right of the guardian, directors, or overseers of the poor, who may be charged with the sup- port of the child." Therefore, an offer of a conti-act between the prosecutor and her parents and the defendant, releasing him from all costs and charges and claims, is properly rejected as irrelevant and immaterial.^^ An agreement to pay a contingent fee to an attorney to secure a settlement in such a case is against public policy, and cannot be col- lected." 371. Fraudulent removal of goods.— Where the offense charged was the removal of goods of a debtor to another county to prevent a levy on them by the sheriff, the agreement to settle was sustained.''* And it is immaterial in such a case that the prosecutors are members of a copartnership engaged in the business of banking.''* " Pflaum V. McGlintock, 130 Pa. 369, " Com. v. Scott, 7 Pa. Super. Ct. 590, 18 Atl. 734; Stumpf's Appeal, 116 Pa. 42 W. N. C. 407, 29 Pittsb. L. J. N. S. 33, 8 Atl. 866; Rohrheimer v. Winters, 77. 126 Pa. 253, 17 Atl. 606; Romig v. '^ Ormerod v. Dearman, 100 Pa. 561, HinUe, 7 Pa. Co. Ct. 145. 45 Am. Eep. 391. Though question here " Com. V. Wicks, 2 Pa. Dist. R. 17. raised, it was not decided whether such ''"a.3Del.Co.Rep.533,6 Lane. L. Rev. 129. cases could be settled under the act of °" For contrary remarks as to adultery, 1860. see Dreher, P. J., in Romig v. HirUcle, '"Brown v. McCreigJit, 187 Pa. 181, 7 Pa. Co. Ct. 145, 149. 41 Atl. 45. "7 Pa. Super. Ct. 590, 42 W. N. C. '"■ Brown v. McCreight, 187 Pa. 181, 407, 29 Pittsb. L. J. N. S. 77. 41 Atl. 45. 830 CRIMINAL AXD PENAL PEOCEDURE. [chap. xvi. 372. Felonies and infamous crimes, — Larceny, being a felony, can- not be compromised,'"' nor forgery, which is an infamous offense.''* Though the agreement to compound the felony or infamous crime is void, yet, if the agreement be fully executed, the plaintiff cannot recover back the money paid, or the value of his services, where he has performed labor in lieu of money.'''' 373. Effect of settlement.-— Where a iwlle prosequi is entered by the district attorney with leave of court after a settlement by the parties, it will be a termination of the prosecution, and it cannot be reopened.''* 374. Nolle prosequi. — A voile prosequi in criminal proceedings is nothing but a declaration on the part of the prosecuting officer that he will not at that time prosecute the suit further. At common law it could be entered as to any offense without special leave of court. The act of March 29, 1819,^® expressly limited the power to assault and battery and fornication and bastardy by consent of the parties, and to prosecutions for keeping tippling houses with consent of the court. No statutory increase of this power appears, except the au- thority conferred by tlie 29th section of the Penal Code relating to the settlement of cases by the parties concerned, already noticed.*" Yet the common-law power is universally recognized, and the privi- lege exercised with leave of court even in homicide cases.*^ "No dis- trict attorney shall, in any criminal case whatsoever, enter a nolle prosequi, either before or after bill found, without the assent of the proper court in writing first had and obtained."** It has been held that this does not require the manual signature of the judge, if the order is put in writing by the clerk, for that is the action of the court.** The nolle prosequi may be entered as to one or more of several de- fendants who have been indicted jointly,** or as to one portion of a count which renders it duplicitous.*' 375. When entered. — It may be entered at any time before the "Conmey v. MacFarlane, 97 Pa. "Hester v. Com. 85 Pa. 139; Com v 361. Evan», 26 Pa. Co. Ct. 90. "Bredin's Appeal, 92 Pa. 241, 37 Am. '"Act March 31, 1860, P. L. 427, § 29. Rep. 677; National Bank v. Kirk, 90 This is taken from the act of May 3 Pa. 49. 1850, P. L. 654, § 1. " Oornnell v. Walton, 6 Kulp, 451. " Com. v. Kohl, 17 Lane. L Rev 159 " Com. V. Kohl, 17 Lane. L. Rev. 159, 14 York Legal Record, 21. 14 York Legal Record, 21. '* Com. v. Casey, 14 Pa. Co. Ct 389 " 7 Smiths Laws, 227, § 4. 3 Pa. Dist. R. 413, 7 Kulp, 265; Com v! ""See Gallagher v. Franklin County, Youlls, 5 Kulp, 231. 5 Pa. Co. Ct 432; Berks County v. Pile, " Kilrow v. Com. 89 Pa. 480 18 Pa. 493. |§ 376, 377] LIMITATION AND SETTLEMENT OP PROSECUTIONS. 351 jury is sworn.*" And the consent of the defendant is not required.*^ But it seems that such cannot be done after the jury is sworn, for the prisoner is then in jeopardy,*® though not until that time.** 376. Effect of. — Such action is practically a stay of proceedings, and is not a bar to a subsequent indictment for the same offense,*" or may be so far canceled as to permit a revival of proceedings on the original bill.*^ But it may be final where entered as a result of a settlement by the parties.*^ And is sufficient termination of the prosecution to sustain an action for malicious prosecution.*^ 377. Costs ; when entered. — If the nolle prosequi be entered before bill found because the prosecution is unfounded, the county is liable for the costs;** but where the biU is found the county cannot be so charged.*^ "Gallagher v. FrankUn County, 5 "^Hester v. Com. 85 Pa. 139; Com. v. Pa. Co. Ct. 431 ; Com. v. Evrnis, 26 Pa. Kohl, 17 Lane. L. Rev. 159, 14 York Co. Ct. 90. Legal Record, 21. " Com. V. Evans, 26 Pa. Co. Ct. 90. '' Com. v. KoM, 17 Lane. L. Rev. 159, " Com. V. Kohl, 17 Lane. L. Rev. 159, 14 York Legal Record, 21. 14 York Legal Record, 21 ; Com. v. Ev- "' Moore v. Murphy, 34 Pittsb. L. J. ams, 26 Pa. Co. (X. 90, though the state- 407. ments in these eases are dicta. In Com. " Gallagher v. franklin County, 5 Pa. v. Seymour, 2 Brewst. (Pa.) 567, a nol. Co. Ct. 431. pros, was entered after the trial had be- ''Berks County v. Pile, 18 Pa. 493; gun, but the effect of so doing is not ex- Agnew v. Cumberland County, 12 Serg. pressly stated. & R. 94 ; Com. v. Winskey, 1 Pa. Co. CS. " McFadden v. Com. 23 Pa. 12, 62 Am. 77 ; Com. v. Torrey, 1 Legal Record Rep. Dec. 308. 298; Zink v. Schuylkill Count]/, 1 Lega] "Hester v. Com. 85 Pa. 139; Com. v. Chronicle, 191. Ames, 26 Pa. Co. Ct. 367; Com. v. JIlit- ler, 8 Ashm. (Fa.) 61. CHAPTEE XVn. TRIAL, 378. Before regular judges. 379. Before judges specially presiding. 380. Regular sessions. 381. Special courts. 382. Continued courts. 383. Joint and separate trials. 384. Principals and accessories in feloniea. 38.5. Principals and accessories in nusdemeanora. 380. Consolidation of indictments. 387. Continuance of trial. '388. Two-term rule. 389. When applied. 390. In fraudulent insolvency. 391. Effect of discharge. 392. Review of proceedings. 393. Change of venue. 394. Application for. 395. Proceedings; when granted. 396. Disposition of prisoner. 397. Removal of indictments to supreme eoTiri* 398. Insanity at arraignment. 378. Before regular judges. — The criminal courts before whom the defendant is to be tried have been discussed under the head of Juris- diction} The president judge of the court of common pleas shall have the power to hold courts of quarter sessions and oyer and ter- miner in each judicial district;^ or either the president judge, or the additional law judge, may so act.^ Where more than one county is included in a separate judicial district, the president judge of the court of common pleas may preside in the absence of the associate judge,* and where a president judge and an additional law judge are provided in any district, they may hold separate courts at the same time.^ By the act of 1834, the president judge of the court of com- mon pleas, with the associate judges thereof, or one of them, unless the judges of the supreme court or some of them shall be sitting as 'Chapter n., supra. "Act May 9, 1889, P. L. 172, § 1. 'Act April 7, 1876, P. L. 19, § 1. "Act May 18, 1845, P. L. 25, § 1; Car- " Act April 7, 1870, P. L. 19. roll v. Oom. 84 Pa. 107. 352 § 379] TRIAL. 833 a court of oyer and terminer in the respective county, may hold conrts of oyer and terminer at the times appointed for holding the courts of quarter sessions.® If the associate judges alone meet, or the presi- dent judge in the absence of both the associates, it is required that the court alone be opened and then adjourned until a quorum can at- tend.'' Special provision is made for Philadelphia county f for Al- legheny county;" for Fulton county;^" for Lancaster county ;^^ and for Lawrence county.'^ 379. Before judges specially presiding.— Ordinarily the trial is to be held before the judge of the court given jurisdiction, but under certain circumstances the duly qualified judicial officer of another court may act in his stead. By the act of 1843,^^ the act of April 14, 1834, was extended to the court of quarter sessions and oyer and terminer, so as to allow substitution of the president judge of an ad- joining district when the regular court was disqualified by interest, title, or relationship, or by having been of counsel. In 1853^* the power was extended to any president judge of any judicial district, though not in an adjoining district. This was followed by the act of 1856,^' which provides that whenever a president judge shall be a party in any suit, prosecution, or proceeding in any court over which he presides, such suit, prosecution, or proceeding shall be tried and heard before the president judge residing nearest the place of such trial, who shall be disinterested. Then came the statute of 1860, which enacted : "In case of the sicloiess of a president judge in any judicial district in Pennsylvania, or of the sickness of his family, or of his inability to hold the regular term of courts in any county from any cause whatever, it shall be lawful for him to call upon any other president judge in the commonwealth ... to hold said regu- lar term of courts, and said president judge so called upon is hereby authorized and empowered to discharge the duties appertaining to said office as fully as the regularly commissioned president judge of said district could do if present."^® The constitutionality of this leg- islation was passed upon by the supreme court and its validity up- held.^^ Similar determinations had been made by the appellate "Act April 14, 1834, P. L. 333, § 58. "Act January 19, 1863, P. L. 3, § 1. • Act April 14, 1834, P. L. 333, § 60. " Act March 8, 1872, P. L. 273, § 1. 'Act February 3, 1843, P. L. 8, §§ 3- "P. L. 133, § 8. 5; act March 14, 1877, P. L. 77, § 1. "Act April 18, 1853, P. L. 573. »Act February 27, 1875, P. L. 62, §§ '"April 22, 1856, P. L. 122. 1, 2; act May 4, 1865, P. L. 842, § 1; "Act April 2, 1860, P. L. 123. Myers v. Com. 79 Pa. 308. "Application of Judges, 64 Pa. 33. "Act March 22, 1860, P. L. 233, § 1. Pa. Crim. Proc. — 23. 3D4 CRIMEVf AL AND PENAL PROCEDURE. [chap. xvn. court on the earlier legislation, upholding the power of the judge to preside in a county other than that for which elected.-'* By the act of 1887, similar power is given where necessary to the proper despatch of business. "Whenever, in the opinion of the president judge of any of the courts, civil or criminal, of any judi- cial district of this commonwealth, the proper despatch of business in said courts shall require it, the said judge is authorized and empow- ered to procure the assistance of any president jjidge, or additional law judge, of any other district in the commonwealth, to try or assist in the trial of civil or criminal cases and transaction of other busi- ness before the several courts of the said district at any regular term, adjourned court, or in vacation."^* When so called, both judges, or either of them, may transact busi- ness in all the courts. "It shall be lawful for the president judge of the district calling in the assistance of any judge, and the judge called upon to assist him, severally, to try the cases on the same trial list at the same time, with one and the same panel of jurors, and transact any other business that may properly come before said court, so that it shall be lawful for the said judges, or either of them separ- ately and at the same term and time, to hold separate trials, or courts for trial, hearing, and disposition of cases, or causes in the common pleas, orphans' court, oyer and terminer, and general jail delivery, quarter sessions of the peace, and in equity ; and the courts of such districts may, at any regular, special, or adjourned term, direct sep- arate venires to issue for a succeeding term, in the manner provided for by law for ordinary venires in the common pleas, and to regulate trial lists for said courts, issue subpoenas, and make all orders, which maybe judged necessary and convenient. Motions, arguments, and de- crees may be made in each branch of said courts, with the same effect as if made in the court held by the president judge of such district And, when more than one trial is going on at the same time, the pro- thonotary, or clerk, or his deputy, shall keep the court minutes of the respective courts and record all proceeding in each case, in the same minute book of such court, precisely as if but one court is being held. The said president or additional law judge, so called in, shall be en- titled to receive the sum of $10 for each day so employed outside of his district, and 10 cents for each mile necessarily traveled in the performance of such duty, to be paid in the same manner as judges " Com. V. Zephon, 8 Watts & S. 382 ; Com. 33 Pa. 338 ; Com. v. Oreen, 58 Pa. Re Pennsylvania Hall, 5 Pa. 204; Kil- 226; Com. v. Martin, 2 Pa. 244. Patrick v. Com. 31 Pa. 198 ; Foust v. " Act March 24, 1887, P. L. 14, § 1. §§ 380, 381] TRIAL. 855 are now by law paid; Provided, That the amount to be received by any judge, under the provisions of this act, shall not exceed the sum of $500 in any year."^" The constitutionality of this legislation has also been affirmed.^* Where so acting, there is a presumption, in the absence of a record, that the visiting judge was called in pursuance of, in conformity with, and for the purposes designated by, the sev- eral acts of assembly conferring such power upon the judges of the lower courts."* These acts furnish the means of supplying a president judge when necessary, but they give no right to associate judges, in the absence of the president judge, or a law judge, to call a member of the bar, as amicus curiae, to the bench to advise them how to conduct a trial and how to decide quections of law that may arise, and thus take the place of the law judge. When this is done, even though the consent of the defendant be regularly filed, the criminal trial is a nullity.** 380. Eegular sessions, — Regular sessions are to be held at least four times a year,** and the time of such holding may be fixed by the respective courts, provided, in case of change, that notice thereof be published in not less than two newspapers in each county of the dis- trict .at least thirty days before the time so fixed for the taking effect of such order.*® Special provision is made for Philadelphia coun- ty,*® and for Allegheny county.*^ 381. Special courts. — By tho act of 1834, provision was made for adjourned sessions of regular court, but directing that in such case no business should be transacted which required the intervention of a grand or petit jury.*^ Under this enactment a jury trial at such an adjourned session was a nullity, notwithstanding the fact that the consent of the defendant was expressly given ;*^ but by the 59th sec- tion of that act special courts were allowed in times of emergency in pursuance of precepts previously issued for that purpose by the court.^" By subsequent legislation, such courts are provided for: "It shall and may be lawful for the several courts of quarter sessions of the peace of this commonwealth, whenever the public business shall require it, to fix adjourned or special courts of quarter sessions, for "Act March 24, 1887, P. L. 14, | 2. act Au^st 7, 1883, P. L. 323, § 10. See ^ Com. V. Bell, i Pa. Super. Ct. 187, also Grand Jury, chapter x., ante. 40 W. N. C. 496. " Act March 13, 1867, P. L. 420, § 1. « Com. V. Bell, 4 Pa. Super. Ct. 187, "Act February 27, 1875, P. L. 62, § 1. 40 W. N. C. 496. " Act April 14, 1834, P. L. 333, § 51. ""Com. V. Collom, 1 Pa. Super. Ct. " Mills \. Com. 13 Pa. 627. 542. "Act April 14, 1834, P. L. 333, § 59; "Act April 14, 183':', P. L. 333, § 46. Briceland v. Com. 74 Pa. 463; WUte v. "Act March 18, 1875, P. L. 28, § 1; Com. 6 Binn. 179, 6 Am. Dec. 443. 858 CRIMINAL AND PENAL PROCEDURE. [chap. xvii. the purpose of trying issues in criminal cases, and transacting the other business of such court, and to recognize parties and witnesses for their appearance at such courts, as if they were regular ses- sions.'"*^ Adjourned courts are provided for Philadelphia county,^^ for Allegheny county,^^ and for Lancaster county.** 382. Continued courts. — The continuance of courts was provided for by the act of 1834. "The courts of quarter sessions of the sev- eral counties of this commonwealth are respectively authorized and empowered to continue their session during such time as may be nec- essary to complete the trial and sentence of any person, whose trial shall have been commenced during the period limited by law for hold- ing the said courts."^^ This legislation gave the right to adjourn from day to day until the case was concluded. Thus, where the jury began the consideration on the last day of the term, and the verdict of guilty was not rendered until three days beyond, the determination was sustained.^® Or where the jury was not completed until the last day of the term, the court was adjourned from day to day and pro- ceeded with the trial of the case f.fter the expiration of the term.*^ Further legislation as to continuance is found for all courts except those of cities of the first class. "From and after the passage of this act, the courts of eoromon pleas, the courts of oyer and terminer, and general jail delivery, and the courts of quarter sessions of the peace of the several counties of this commonwealth may, at any term or ses- sion, direct said courts to continue at the following term or session one or more weeks in addition to those already provided by law, and, for such additional week or weeks, to issue venires for jurors as re- quired for the regular terms or sessions, and may also, if necessary in the opinion of said courts, continue any of said courts (the regu- lar terms or sessions inclusive) during a next succeeding week or weeks and detain the general panel of jurors in attendance, without the issuing of a new venire for the said additional week or weeks, and enforce the attendance of parties and witnesses during such continued terms or sessions by all proper orders and process; Provided, That the provisions of this act shall not apply to cities of the first class."** " Act April 22, 1850, P. L. 543, § 12. county, act February 27, 1875, P. L. 62, "= Act April 14, 1834, P. L. 333, § 37. § 3. ""Act April 14, 1851, P. L. 555, § 5. ^ Briceland v. €om. 74 Pa. 463; Com. =*Act March 30, 1852, P. L. 207, v. Fitzpatrick, 121 Pa. 109, 1 L. R. A. f 4. 451, 15 Atl. 466. "Act April 14, 1834, P. L. 333, § 49; "^ Carroll v. Com. 84 Pa. 107; Com. v. for Philadelphia county, act April 14, Painton, 5 York Legal Record, 140. 1834, P. L. 333, § 47; for Allegheny '"Act June 10, 1881, P. L. 113. §§ 333, 3S4] TRIAL. 357 Tke constitutionality of this act Kas been passed upon and ap- proved.** 383. Joint and separate trials. — "In all eases in which two or more persons are jointly indicted for any offense, it shall be in the discre- tion of the court to try them jointly or severally, except that, in cases of felonious homicide, the parties charged shall have the right to de- mand separate trials; and in all cases of joint trials, the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more."*" Prior to this act, it had been held that the offense of conspiracy being a joint offense, a separation of defendants for the purpose of trial could not be granted.*^ It is entirely within the discretion of the court below to determine whether the defendants shall be given separate trials, and the exercise of this discretion is not reviewable.*^ It being within the control of the court to try jointly, or separately, a separate trial of two defend- ants at the election of the commonwealth is good though a third be jointly indicted, but not tried.*^ And the fact of such joinder in the indictment is not such prejudice to the defendant as to furnish ground to q\iash.** Conversely, it is not ground for a new trial that the two jointly indicted were tried together.*® If a separate trial is granted, the court will not interfere with the discretion of the district attorney in his selection as to which of the defendants he will first try.*« Provision was made for the separate trial of infants by the act of 1893, which was declared unconstitutional. Similar requirements are found in the siibstituted act of 1901, establishing juvenile courts.*'^ 384. Principals and accessories in felonies. — ''If aay person shall become an accessory before the fact to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon."*® '"'If any person shall become an accessory after the fact '"Com. V. Bell, 4 Pa. Super. Ct. 187, "Com. v. Bradley, 16 Pa. Super. Ct. 40 W. N. C. 496. 561. "Act March 31, 1860, P. L. 427, § 40. ^' Com. v. Bumm, 19 Phila. 530, 45 "Com. V. Manson, 2 Ashm. (Pa.) Phila. Leg. Int. 104. 31; Com. V. SkupmsU, 9 Phila. Leg. Int. "Shay v. Com. 36 Pa. 305. 54. "Act May 21, 1901, P. L. 279. See " Com. V. Place, 153 Pa. 314, 26 Atl. also Jurisdiction, Juvenile Courts, chap- 620. Here refused an indictment for ter ii., § 28, ante. libel. " Act March 31, 1860, P. L. 427, § 44. "Com. V. Hughes, 11 Phila. 430, 33 Phila. Leg. Int. 44. 358 CRIMINAL AND PENAL PROCEDURE. [chap, xvil to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in force or that may be hereafter in force, he may be indicted and convicted as an accessory after the fact to the principal felony, together with the principal felon, or aft- er the conviction of the principal felon, or may be indicted and con- victed of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may therefore be punished in like manner as an accessory after the fact to the same felony, if convicted as an accessory, may be punished ; and the offense of such person, howsoever indicted, may be inquired of, tried, determined, and punished, by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act, by reason of which such person shall have become accessory, had been committed at the same place as the principal felony ; Provided, always, That no person who shall be once duly tried for any such offense, whether as an accessory after the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offense.''*® The subjoined cases are rendered obsolete by this legislation.^** The accessor}' may now be indicted and tried as the principal felon.^^ So, it is no ground to arrest judgment that there is no count in the indictment charging the defendant as an accessory.^^ The in- dictment need not show upon its face that the principal was ar- raigned.^* ISTor need it aver the guilt of the principal.^* But in the trial such guilt must be proved and a plea of nolo contendere entered by the principal is m)t sufficient to show this.°* If the principal and the accessory be joined in separate counts of the same indictment, and separate trials be awarded, the joinder is not prejudicial to the pris- oner and is not ground for quashing the indictment, or arresting the judgment.®* 385. Principals and accessories in misdemeanors. — "And every per- son who shall counsel, aid, or abet the commission of any misde- meanor, punishable under this act, for whom no punishment has been hereinbefore provided, shall be liable to be proceeded against and punished as the principal offender.'"''' This section provided "Act March 31, 1860, P. L. 427, § 45. "Brandt v. Com. 94 Pa. 290. '° Stoops V. Com. 7 Serg. & R. 491, 10 "Com. v. Kaas, 3 Brewst. (Pa.) 422. Am. Dec. 482; Sampson v. Com. 5 Watts " Com. v. Kelly, 10 Iianc. Bar, 107. & S. 385; Holmes v. Com. 25 Pa. 221. ''Buck v. Com. 107 Pa. 486. "Com. V. Hughes, 11 Phila. 430, 33 "Com. v. Bradley, 16 Pa. Super. Ct. Phila. Leg. Int. 44; Campbell v. Com. 561. 84 Pa. 187; Com. v. Kern, 1 Brewst. "March 31, 1860, P. L. 382, § 180. (Pa.) 350. §§ 886, 337] TRIAL. 359 only for misdemeanors punishable under the act of 1860. To remedy this defect, the act of 1893 was passed, which provides: "And ev- ery person who shall counsel, aid, or abet the commission of any mis- demeanor punishable under any act of assembly of this common- wealth, for whom no punishment is provided, shall be liable to be proceeded against and punished as the principal offender."^* 386. Consolidation of indictments. — The court in the exercise of its discretion may order two or more separate indictments against the same defendant, to be tried at the same time. Thus, two charges for a conspiracy found at two different sessions were ordered so tried, the defendant being allowed four challenges for each.^^ So, it was held proper to order the trial of three separate larcenies at the same time.®" And the trial of a second indictment against the same defendant may take place before the same jury, when consent is given thereto by both sides.®^ If separate verdicts and judgments be entered on dif- ferent indictments tried together, separate appeals must be taken to secure review.*^ 387. Contimiance of trial. — Motions for continuance are addressed primarily to the discretion of the court, and its determination of the application rests upon the exercise of this sound discretion, and is not reviewable in the absence of abuse. The pendency of another indictment, or of a civil proceeding aris- ing from the same facts, ordinarily vail not furnish a ground for the postponement of the trial, unless the criminal charge arises from the very proceeding which is still pending, as in perjury committed in the civil case.** SufHcient time and opportunity to prepare the defense should be granted. It was refused where the senior counsel had been em- ployed for one month though the junior counsel had been retained for but five days.®* And where counsel was appointed by the court on Friday and the trial took place on Monday."® And the trial may even be begun in the absence of counsel for the defendant where he was aware that the case would be pressed and efforts were made to secure his attendance before proceeding. A new trial will not be granted under such circumstances, where no objection is made by the ■» June 3, 1893, P. L. 286, § 1. "' See Concurrence of Civil and Crim- "' Withers v. Com. 5 Serg. & R. 59. inal Proceedings, chapter i., § 4, ante. "Com. V. Dupes, 14 Pa. Co. Ct. "Com. v. Buoowri, 153 Pa. 535, 26 238. Atl. 228. '^^ PernisyVeamJia v. Sullivan, Addison '^ Com. v. Bemek, 168 Pa. 603, 32 Atl. (Pa.) 143. 109, — especially where it did not appeal "' Com. V. Schollenherger, 17 Pa. that the defendant could have been Super. Ct. 218. aided by the delay. 860 CKIMINAL AND PENAL PROCEDUKE. [ohap. xvn. defendant, and the attorney does appear subsequently, whereupon the case is continued until the next morning.®** A continuance may be allowed on the allegation of the absence of a witness material to the defendant.®'^ But such action is within the sound discretion of the judge, and will not be reversed in the absence of clear abuse of discretion.'*^ It will be refused where asked for the purpose of securing the attendance of a witness regularly subpoenaed whose testimony is necessary in support of a motion to quash the bill of indictment, and who has gone to another county,*® or to await the appearance of a witness for a like purpose who is outside of the state.''" And in no case will it be allowed where the evidence of the witness desired was rendered unimportant by the admissions of the district attorney ;'^ or where it appears that the defendant has made no effort to secure the attendance of the witness, though he had op- portunity to do so ;''^ or where it does not appear that the absent wit- ness can be had at the time to which the trial is continued.''^ It will be granted where the prisoner is called for trial at a term earlier than that to which he was bound by his recognizance, but if he refuses the postponement, when offered, he cannot complain after a verdict of guilty. ''* So, it may be granted or. the ground of surprise where the indictment does not conform to the information;'^ or on a trial of an indictment for treason where no list of witnesses has been furnished.'^® But it will not be allowed to permit the defendant to apply to the court of common pleas for a commission to determine his present sanity."^ After the jury is sworn, it may be dismissed and the case con- tinued, if there be any interference with the jurors impaneled, but the action of the court on such an application is discretionary and will not be reversed unless an abuse be distinctly charged and clear- ly established.'* 388. Two-term rule. — "If any person shall be committed for trea- son or felony, or other indictable offense, and shall not be indicted and tried sometime in the next term, session of oyer and terminer, "Com. V. Cannon, 13 Phila. 456, 36 '''Com. v. Gross, 1 Ashm. (Pa.) 281. Phila. Leg. Int. 400. '" Com. v. Wmnemore, 1 Brewst. "'TCing v. Rapp, 1 Dall. (Pa.) 9. (Pa.) 356. '"Com. V. Eazlett, 16 Pa. Super. Ct. "Com. v. Hooper, 15 Pa. Super. Ct. 534; Com. V. Carson, 3 Phila. 219, 15 227, 8 Del. Co. Rep. 89. Phila. Leg. Int. 325. '" Com. v. Lewis, 15 W. N. C. 205. "'Com. V. Craig, 19 Pa. Super. Ct. 81. '" RespuUica v. Molder, 1 Dall. (Pa.) '"Com. V. Dietrich, 7 Pa. Super. Ct. 33. 615, 42 W. N. C. 459. " WeUer v. Com. 119 Pa. 223, 13 Atl. " Com. V. Winnemore, 1 Brewst. 427. (Pa.) 356. "Com. V. Ha«?e«*,16Pa.Super.Ct. 534. § 389] TRIAL. 361 general jail delivery, or other court where the offense is properly cog- nizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required on the last day of the term, sessions, or court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, mentioning their names, could not then be produced; and if such prisoner shall not be in- dicted and tried the second term, session, or court after his or her commitment, unless the delay happen on the application or with the consent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment; Provided, always, That nothing in this act shall extend to discharge out of prison any person guilty of, or charged with, treason, felony, or other high misdemeanor in any other state, and who by the Constitution of the United States ought to be delivered up to the executive power of such state, nor any person guilty of, or charged with, a breach or violation of the laws of the nations."'® This is a re-enactment of the 3d section of the act of Eebruary 18th, 1785 ; the words "or other indictable offense," after the word "felony" have been introduced in the new enactment.*" 389. When applied. — The use of the words "term and sessions" does not mean a mere period of time in which the court might have sat, but an actual session available in law and in fact for the trial ; and all circumstances of physical, moral, or legal necessities, which pre- vent trial, are exceptions which take a case out of the statute. Thus, where there were irregular courts held, because of the absence of two judges, under the act of February 3, 18-13, these will not count as sessions.** So, where the challenge to the ai'ray of grand jurors was sustained for tw^o successive terms on motion of another than the de- fendant, so that it was impossible to find the bill of indictment, the rule will not be applicable.®^ And where, as a matter of law, the de- fendant cannot be tried within two terras, the rule could not be in- voked.®* Where the postponement is due to the act of the defendant, or "Act March 31, 1860, P. L. 427, § 54. "Com. v. Allegheny County Sheriff For Philadelphia, see act March 13, & Gaoler, 16 Serg. & R. 304. Prior to 1867, P. L. 420, § 4, fixing the expira- the act of 1860, a conviction of the prin- tion of the fourth term as the period. cipal was necessary before the trial of ™ Report on the Penal Code, 51. the accessory. Here the principal had *" Com. v. Brown, 11 Phila. 370, 32 fled and the outlawry commenced was Phila. Leg. Int. 430, 2 W. N. C. 153. not completed within that period. " Clark V. Com. 29 Pa. 129, Overrul- ing in effect Com. v. Prophet, 1 Browne (Pa.) 135. 363 CRIMINAL. AND PENAL PROCEDURE. [chap, xvii occurs by reason of his request, lie is not entitled to a discharge at the expiration of the second term. Thus, where the prisoner is held awaiting a second trial granted on his motion, the rule does not ap- ply, for it refers only to the period of time intervening between the commitment and the first trial f* or where a continuance is obtained when the commonwealth is prepared for trial, though he be held for four terms, after his rearrest, his recognizance having been for- feited f^ or where the defendant keeps the witnesses of the common- wealth away;®^ or where delay is caused by defendant's motion to quash the array f or where it becomes impossible to try because of a contagious disease of the defendant, the case may be postponed, al- though the prisoner insists on trial;** or where the defendant is a fugitive from justice.** It has been said that the inability of the commonwealth to procure the attendance of witnesses, though every effort was made, thus causing delay, would prevent the running of the rule, but if it appears to the court that there was small likelihood of the witness ever appearing, the prisoner will be discharged.^" It would seem that all of these acts referred to, providing for a dis- charge, were intended for the protection only of those imprisoned, and not for the defendant released on bail.*^ 390. In fraudulent insolvency.— In case of indictment for fraudu- lent insolvency, it is provided : "If no bill shall be presented to the grand jury at the next sessions, or if the bill shall not be found, or if the indictment shall not be tried at the second session after the commitment of such petitioner, unless the postponement of the trial takes place at the instance of such petitioner, or if, upon trial, such debtor be acquitted, it shall be the duty of the court of common pleas to discharge him from imprisonment, upon his proceeding as is pro- vided by the insolvent laws."*^ Under this enactment, the prisoner is entitled to a discharge where the indictment is not foimd at the next session.** But it applies only to those defendants who are im- prisoned.** " Com. ex rel. McOurk v. County "° Com. v. Pulte, 14 Phila. 398, 37 Prison Superintendent, 97 Pa. 211. Phila. Leg. Int. 493; Com. v. Hale, 13 " Com. V. Pulte, 14 Phila. 398, 37 Phila. 452, 36 Phila. Leg. Int. 285, 7 W. Phila. Leg. Int. 493; Com. v. Ecmfman, N. C. 359. 9 Pa. Super. Gt. 310. °° Com. v. Brummer, 8 Phila. 607. *■ Respublica v. Arnold, 3 Yeates, 263 ; " EespuiUoa v. Arnold, 3 Yeates, 263 ; Com. ex rel. Haggerty v. Philadelphia WentzeVs Appeal, 160 Pa. 252, 28 Atl. County Prison Superintendent, 4 694. Brewat. (Pa.) 320. "^ Act March 31, 1860, P. L. 382, § 133. "Ex parte Walton, 2 Whart. 501. "Re Garrison, 4 Kulp, 248. "^ Com. V. Allegheny County Jailer, 7 " Wentxel's Appeal, 160 Pa. 252, 28 Watts, 366. Atl. 694. §§ 391-394] TRIAL. 863 391. Effect of discharge.— The effect of discharge under the two- term rule is to prevent a further prosecution, but if the record shows that a nolle prosequi has been entered, as to the defendant, before the making of the motion for discharge under this act of assembly, the prisoner may be reindicted subsequently and tried.®^ 392. Review of proceedings. — The proceeding is es,gentially one of habeas corpus, though not such in form. It would seem that the deci- sion of the lower court, on tlie motion, may be reviewed;^® or that a new application may be made to the appellate court.®'^ 393. Change of venue. — "In criminal prosecutions the venue may be changed, on application of the defendant or defendants, in the fol- lowing cases : First. When the judge who, by law, is required to try the same, is a near relative of the prosecutor, or of the defendant, or of the person injured, or has knowledge of facts which make it nec- essary that he should be a witness in the case. Second. When, upon the application of a defendant in a felony, it is made to appear to the satisfaction of the court that, from undue excitement against the prisoner, in the county where the offense was committed, a fair trial cannot be had, or that there exists in that county so great a prejudice against him that he cannot obtain a fair trial, or that there is a com- bination against him, instigated by influential persons, by reason of which he cannot obtain a fair trial. Third. When, upon the trial of any criminal case, an unsuccessful effort has been made to pro- cure and impanel a jury for the trial of the defendant, and it shall be made to appear to the court by the written affidavit of some cred- ible witness that a fair trial cannot be had. Fourth. When, upon second trial of any felonious homicide, the evidence on the former trial thereof shall have been published within the county in which the same is being tried, and the regular panel of jurors shall be ex- hausted without obtaining a jury."®* 394. Application for. — "All applications for changes of venue shall be made to the court in which the indictment shall be pending, in such manner as the said court shall direct, and before the jury shall be sworn therein ; and if the said court shall be satisfied of the propriety of such change of venue, and that the causes assigned therefor are true, and are within the provisions of the 1st section of this act, it shall be ordered that the venue thereof shall be changed to some ad- "Eester v. Com. 85 Pa. 139. "Ex parte Walton, 2 Whart. 501; " Clark V. Com. 29 Pa. 129 ; Com. v. Com. ex rel. McGurk v. County Prison Kaufman, 9 Pa. Super. Ct. 310; Went- Superintendent, 97 Pa. 211. zel's Appeal, 160 Pa,. 252, 28 Atl. 694. <^ Act March 18, 1875, P. L. 30, § 1. 364 CRIMINAL AND PENAL PROCEDURE. [chap, xvii, joining or convenient county where tlie causes alleged for a change do not exist."®* The application will be refused where no proofs are offered in support of it.*"" The motion is addressed to the sound discretion of the trial court, and when no abuse of this discretion appears, a refusal to grant such an application will not be reviewed by the supreme court.^"^ Thus, it has been refused when it was alleged that the judges of the court were needed as witnesses j^"^ where the application made at a second trial, supported by affidavits of counsel, was based upon the state of public opinion in reference to the case;*"^ where it was asked on the ground of prejudice, being supported by affidavits of the prisoner and two citizens;^"* and where a previous trial for murder had taken place, the testimony of which had been reported in the newspapers, thereby making it difficult to secure a jury.^"^ A change of venue has been granted where the court was satisfied that the prejudice in the community against the defendant was such as to preclude a fair trial.-"'® 395. Proceedings; when granted. — "When an order for a change of venue shall be made, the clerk of the courts shall make out a full and complete transcript of the record and proceedings in said cause, and transmit the same, together with the indictment and all the other papers on file, to the clerk of the court to which the venue is changed, which transcript shall be entered on the minutes of said court; and the trial of said case shall be conducted in the court to which it shall be removed in all respects as if the indictment had been found in the county to which the venue is changed ; and the costs accruing from a change of venue shall be paid by the county in which the offense was committed.'""'' Where the venue is changed, the prisoner having been arraigned and pleaded to the indictment in the county in which he was originally brought for trial, he need not be rearraigned and asked to plead again in the county to which the trial has been re- moved.-"'^ 396. Disposition cf prisoner. — "When the court has ordered a '"Act March 18, 1875, P. L. 30, § 2. "» Com. v. Cleary, 148 Pa. 26, 23 Atl. ^""Rizzolo V. Com. 120 Pa. 54, 17 Atl. 1110. '520. ^"Oom. V. Coyle, 3 York Legal Rec- "' Gom. V. Allen, 135 Pa. 483, 19 Atl. ord, 171. 957. ""Act March 18, 1875, P. L. 30, § 3. "" Com. V. Graham, 5 Kulp, 157. ™ Com. v. Pistorius, 12 Phila. 550, 35 "" Com. V. Allen, 135 Pa. 483, 19 Atl. Phila. Leg. Int. 164. 957. ^'^Com. V. Bucoieri, 153 Pa. 535, 20 Atl. 228. §§ 397, 398] TRIAL. 305 change of venue, it shall require the accused, if the offense is bailahle, to enter into a recognizance with good and sufficient sureties, to be approved by the court or judge, in such sum as the court may di- rect, conditioned for his appearance in the court to which the venue is changed, at the first day of the next term thereof, and to abide the order of such court; and in default of such recognizance, or if the offense be not bailable, a warrant shall be issued, directed to the sher- iff, commanding him to safely convey the prisoner to the jail of the county where he is to be tried, there to be sp.fely kept by the jailer thereof until discharged by due course of law; and the court shall bind the witnesses on the part of the commonwealth to appear before the court in ■which the prisoner is to be tried. "^"® 397. Removal of indictments to supreme court. — See Jurisdiction Supreme Court for the removal of cases into the supreme court for trial by certiorari. 398. Insanity at arraignment. — The 66th section of the Penal Code of 1860 provides for the finding by the jury whether or not the defendant was insane at the time of the commission of the offense. "The same proceedings may be had if auy person indicted for an offense shall, upon arraignment, be found to be a lunatic, by a jury lawfully impaueled for the purpose, or if, upon the trial of any person so indicted, such person shall appear to the jury, charged with such indictment, to be a lunatic, the court shall direct such finding to be recorded , and may proceed as aforesaid."-'-'" "It is only in cases of doubt as to the sanity of the prisoner at the time of the arraignment, that a prelim- inary inquiry by a special jury is to be ordered ; wherefore, neither the assertion of the prisoner and his counsel, nor the production of affidavits, nor the entry of a plea of present insanity upon the rec- ord, can of themselves suffice to produce the state of doubt which is a necessary prerequisite to the ordering of the inquiry. It follows that the judicial mind may be informed by a personal inspection of the prisoner, an examination of him, either public or private, inqui- ries from attending physicians and others about him, and other facts or testimony ; but, if thereafter the trial judge have no doubt of the prisoner's sanity, he is neither bound, nor would he be justified, in ordering the preliminary inquest. "^^^ It is too late to ask for an examination on the suggestion of present insanity, where the pris- "» Act March 18, 1875, P. L. 30, § 4. 427. Here the preliminary examination "° Act March 31, 1860, P. L. 427, § 66. was refused and the action of the court *" Webler v. Com. 119 Pa. 223, 13 Atl. was aflSrmed, Sterrett, J., dissenting. 866 CRIMINAL AND PENAL PROCEDURE. [chap. xvii. oner has pleaded and the jury has been impaneled. In such case, the one jury must determine both the question of present insanity and the guilt or innocence of the defendant''*^ ■" Taylor v. Com. 109 Pa. 2ISSL CHAPTER XVIII. JURIES. 399. Jury commissioners. 400. Meeting of board. 401. Filing oath. 402. Oath of officers selecting names. 403. Selection of names. 404. Who may be chosen. 404a. Exemption from jury service. 405. Number to be chosen. 406. Time of choosing. 407. Removing old names. 408. Filling the wheel. 409. Certifying list. 410. Sealing and custody of the wheel and kqj, 411. Penalty for failure to seal and lock. 412. Opening the wheel. 413. Drawing juries from the wheel. 414. Where persons dead or removed. 415. Order of drawing. 416. Lists of those drawn. 417. Jury process. 418. Direction and execution of writ. 419. Summoning jurors. 420. In Philadelphia. 421. Where sheriff disqualified. 422. The return. 423. Swearing to. 424. Number to be summoned. 425. Mistake in names of those summoned. 426. Waiver of defects. 427. Talesmen. 428. When ordered. 429. To whom issued. 430. Who summoned. 431. Number summoned. 432. Talesmen in Philadelphia. Jury commissioners. — "Trieimially ... tie qualified electors of the several counties of the commonwealth shall elect, in the manner now provided by law for the election of other county of- ficers, two sober, intelligent, and judicious persons to serve as jury commissioners in each of said coimties for the period of three years 387 368 CRiaUNAL AND PENAL PEOCEDUKE. [chap. xvm. ensuing their election ; but the same person or persons shall not be el- igible for re-eleetion more than once in any period of six years ; Pro- vided, That each of said qualified electors shall vote for one person only as jury commissioner ; and the two persons having the greatest number of votes for jury commissioner shall be duly elected for jury commissioners in said county."^ The legislature by enacting that the election should be conducted in the manner provided for the election of other county officers clear- ly conveyed the intent to make the jury commissioners county officers ; and the newly elected ones cannot take office imtil the 1st Monday of January subsequent to their election.^ The 2d clause of the act does not prohibit a re-election once in six years, or a continuous serv- ice of six years by an election and a re-election.* If the jury commissioner holds his office under color of an election by the people, and has actually entered upon it, and is performing his duties, he will he a, de facto officer, and, as against everyone ex- cept the commonwealth, who may object on quo warranto proceed- ings, his acts are binding.* In ease of vacancy in office by reason of sickness, death, or other unavoidable cause, or in case of neglect or refusal to serve therein, it shall be the duty of the president judge to appoint some suitable person for the balance of the term.* 400. Meeting of board.— "It shall be the duty of said jury commis- sioners, president judge, or additional law judge of the respective dis- trict, or a majority of them, to meet at the seat of justice of the re- spective counties at least thirty days before the first term of the court of common pleas in every year, and thereupon proceed with due dil- igence to select alternately from the whole qualified electors of the respective county at large a number such as at the term of the court of [common] pleas next preceding shall by the said court be desig- nated, of sober, intelligent, and judicious persons to serve as jurors in the several courts of such county during that year; and the said jury commissioners, president judge, or additional law judge, or a majority of them, shall, in the mode and manner now directed by law, place the names of persons so selected in the proper jury wheel, and the said jury wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof • Act April 10, 1867, P. L. 62, § 1. * Com. v. Clemmer, 190 Pa. 202, 42 ' Re Bucks County jurors, 20 Pa. Co. Atl. 675. Ct. 36. »Aet AprU 10, 1867, P. L. 62, § 7. 'Com. v. Clemmer, 190 Pa. 202, 42 Atl. 675. §§ 401, 402] JUEIES. 369 in the custody of tlie sheriff of said county.""' By section 4 of the same act, the provisions of earlier statutes as to the drawing of the jury by the sheriff and county commissioners is repealed. Special provision is made for Philadelphia county by the act of 1858.'^ The judge and jury commissioners sitting as a board are entitled to have sufficient clerical force to record their proceedings.^ 401. Filing oath.— The Constitution of 1874 provides that county officers shall talce an oath of office therein prescribed, and file the same with the prothonotary of the county.® "Whenever, by existing laws, it shall be the duty of any person connected vnih. the selection or drawing of jurors to be sworn, the oath required to be taken shall be reduced to writing, subscribed by the person qualified, and filed in the office of the prothonotary of the court of common pleas, as a part of the records thereof."^'' This act contemplates the filing of a single oath for each year, and not a new one at each drawing.^ ^ A failure to comply with this provision is ground for challenge to the array, if the objection be seasonably taken.^^ But it is not in time when first raised in the third term after the finding of the bill of indictment.-'* The fact that the jury commissioners have taken the oath which is reduced to writing and signed before the deputy recorder and left with him, before the beginning of their official terms, will not render invalid the official acts subsequently done by them, since such filing is directed merely for the purpose of preserving the oath ac evidence that it has been taken, and the act of filing may be performed at any time.^* The judge who aids in the selection of names need not take the oath, since his official oath is suffioient.^^ 402. Oath of officers selecting names. — Before the jury commis- sioners and sheriff shall proceed to select or draw juries, they shall severally take the oath or affirmation now prescribed by law to be taken by the sheriff and county commissioners before selecting and drawing jurors.^® The form of oath referred to is as follows : "You, •Act April 10, 1867, P. L. 62, § 2. "Act March 18, 1874, P. L. 46, § 4. 'Act April 20, 1858, P. L. 354, § 1. ^^ Com. v. Byrne, 1 Kulp, 378; Kit- The supreme court no longer sits at nisi tcmninn Ins. Co. v. Adams, 110 Pa. 553, prius since the Constitution of 1874, 1 Atl. 443. art. 5, § 3. '^ Com. v. Byrne, 1 Kulp, 378 ; Com. 'Re Bucks County Jurors, 20 Pa. Co. v. Rush, 11 Lane. L. Rev. 164. Ct. 36. The practice is here condemned " Com. v. Derschuck, 1 Kulp, 377. of appointing clerks by jury commis- ^^ Com. v. Valsalka, 181 Pa. 17, 37 sioners before the organization of the Atl. 405. board; also of appointing attorneys at ^^ Klemmer v. Mt. Penn Gravity R. law to such positions. Go. 163 Pa. 521, 30 Atl. 274. •Pa. Const, art. 7, § 1. "Act April 10, 1867, P. L. 62, § 3. Pa. Crim. Proc. — 24. 870 CIIIMINAL AND PENAL PROCEDURE. [chap. xvm. and each of you do (swear or affirm) that you ■will use your ut- most endeavors and diligence in making impartial selection of com- petent persons for jurors during the ensuing year, and that you will not suffer partiality, favor, affection, hatred, malice, or ill will, in any case or respect whatever, to influence you in the selecting, draw- ing, or returning of jurors ; but that you will, in all respects, honestly conform to the true intent and meaning of the acts of assembly in such case made and provided."^ ^ The form must comply with that pre- scribed by the act of 1834, or the indictment will be quashed ;^^ but it is not necessary for the jury commissioners to take the whole oath prescribed by the act of 1834 before drawing juries from the jury wheel which has been filled by their predecessors in office.^® The sheriff should omit such parts of the oath as are not applicable to him. The words, "make an impartial selection of competent per- sons," would not apply to him.^" But an oath must be taken by this ofilcer where he aids in the dravsring of the jury.^-' Proceeding in the selection of names by the jury commissioners without taking the requisite oath would be ground for quashing the array; but the appellate court will not reverse where the motion is based on that ground, when the court below, after hearing the evi- dence, finds that the officers were properly qualified.^^ 403. Selection of names. — The persons to fill the wheel are the jury commissioners, president judge, or additional law judge, or a major- ity of them.-" It is, therefore, no ground to quash, to allege that the judge was not present. The jury commissioners can act without him.^* The same was held under the earlier act providing for a se- lection by the sheriff and commissioners ; and the fact that the former was not at all times present was immaterial.^^ "Not is it fatal that the judge who was actually present was a plaintiff in a case to be heard during the year when the jurors would serve.^® The names are to be selected alternately.^'^ Therefore, if each offi- cer prepares a separate list and places it in the wheel, the array is "Act April 14, 1834, P. L. 333, § 87. '* Com. v. Manfredi, 162 Pa. 144, 29 " Com. V. Rush, 11 Lane. L. Rev. 164. Atl. 404. " Com. V. Smith, 16 Pa. Co. Ct. 577, '" Com. v. Lippard, 6 Serg. & R. 395. 12 Lane. L. Rev. 337. " Wallace v. Jameson, 179 Pa. 98, 36 ™ Klemmer v. Mt. Perm Gravity B. Atl. 142. The objection in this case was Co. 163 Pa. 521, 30 Atl. 274. raised too late. Even if it had been " Com. v. Rush, 11 Lane. L. Rev. 164. made in time, it would not have been en- ^ Camplell v. Com. 84 Pa. 187. Here tertained. A change of venue could the oath filed was dated the 17th, and have been asked for, but the judge could it was insisted that the selection of not be prevented from performing a names began the day before. duty imposed upon him by law. " Act April 10, 1867, P. L. 62, § 2. " Act April 10, 1867, P. L. 62, § 2. §§ 404, 404a] JURIES. 371 quashable.^* But the coiirt will not quash on the presentation of a mere affidavit based on information and belief, which makes such an allegation, it not being supported by evidence.^* The mere fact that each had a list of names to aid in selection does not render the selec- tion vicious.^" 404. Who may be chosen. — Sober, intelligent, and judicious per- sons are to be chosen as jurors from the whole qualified electors of the respective county.^^ They are not to be selected for party purposes.^* And it would be ground to qftash, if it were shown that the jurors were chosen for political or personal reasons.^^ Names should be se- lected by those authorized, and not by individuals who prepare lists for the commissioners' use.^^ And it is improper for a jury commis- sioner to give copies of the names proposed to others to pass upon.*® In the names decided upon, persons privileged or exempted from jury service should not be included ;** but the mere fact that a juror has been placed in the wheel a second time during one year, the first ar- ray having been quashed, is no ground for objection by the defend- ant.-" When a new selection of names is ordered, it would be improper to replace as a whole all of those removed.** But some may be chosen from among those taken out*® And it would be error to order that none of those persons should be included in the new selection, since jurors must be chosen from the whole qualified electors of the county.*" 404a. Exemption from jury service. — "It shall not be lawful to re- turn to the wheel, or to any of them (if there be several), the name of any person who may have served as a juror during the year in which such service shall be rendered ; nor shall it be lawful to put the name of the same person, during the same year, into two or more different wheels containing the names of jurors for the courts of the respec- " Com. V. Baranowski, 5 Pa. Co. Ct. '" Com. v. Baranowshi, 5 Pa. Co. Ct. 642, 45 Phila. Leg. Int. 370; Kell v. 642, 45 Phila. Leg. Int. 370. Here a Brillmger, 84 Pa. 276. list was given to a member of the ^ Com. V. Zuern, 16 Pa. Super. Ct. Knights of Labor, who struck off at 588. least one name. "Com. V. Bentz, 20 Pa. Co. Ct. 568. '"Act 14, 1834, P. L. 333, § 125. " Act April 10, 1867, P. L. 62, § 2. " Com. v. Clemmer, 190 Pa. 202, 42 ^ Re Bucks County Jurors, 20 Pa. Co. Atl. 675. Ct. 36. =" Kell V. Brillinger, 84 Pa. 276. ^Klemmer v. Mt. Penn Gravity R. "Com. v. Clemmer, 190 Pa. 202, 42 Co. 163 Pa. 521, 30 Atl. 274. It was Atl. 675. here said that no consent of the defend- *' Com,, v. Baranowski, 6 Pa. Co. Ct. ant would waive such a defect. 157. « Com. v. Bedell, 26 Pittsb. L. J. 85. 872 CRIMINAL AND PENAL PROCEDUKE. [chap, xtiii. tive county; and every sheriff and every conunissioner who shall in- tentionally offend herein, or shall consent thereto, shall forfeit and pay to the respective county, for the use of the fund aforesaid, a sum not less than $10, nor more than $30, at the discretion of the court of quarter sessions of the peace of the respective county."*^ In Philadelphia, citizens are not compelled to serve for two succes- sive years.*^ Members of the ^National Guard are made exempt dur- ing their terms of service.^* Those claiming exemption are bound to file an affidavit with the clerk of the board for selecting and drawing jurors, setting forth the ground on which they claim their exemption, as provided by act May 31, 1870.** In cities, election officers may claim exemption from jury service during their terms of service.*^ 405. Number to be chosen. — The number of persons to be chosen shall be designated by the court of common pleas at the term of court next preceding the annual meeting of the jury commissioners to make such selection ; and if no such order be made then the same number shall be chosen as in the preceding year.** A harmless mis- take in placing 1,554 names in the wheel, instead of 1,550, as pro- vided by the court's order, is not fatal, it appearing that such act was accidental.*''' Additional names may subsequently be placed in the wheel, when- ever by reason of adjourned or special courts, or otherwise, there shall not be a sufficient number remaining in the wheel to serve for the bal- ance of the year.*^ Where an array is quashed for defects in sum- moning or keeping the wheel, or for other reasons, the court may or- der the selection of new names.** Whenever an irregularity appears in the sealing or in the custody of the wheel, the same may be done,^** or when the array is quashed for irregularity of selection,^^ or where the wheel has been broken open or destroyed;^^ 406. Time of choosing.— The time when the wheel is to be filled is fixed by act of assembly at least thirty days before the first term of the court of common pleas in every year."^ Special provisions are "Act April 14, 1834, P. L. 333, § 136. «Act April 6, 1869, P. L. 16 § 1 "Act April 20, 1858, P. L. 354, § 8, For Philadelphia, see Act March 13, amended by act March 27, 1865, P. L. 1867, P. L. 420, § 7. ^^^- "Act March 18, 1874, P. L. 46; Act «ActMay 13, 1871, P. L. 267. April 14, 1834, P. L. 333, § 95 "P. L. 732 §'1. M^et March 5, 1875, P. L. 5, § 1. "Const. 1874, art. 8, § 14. =iAct April 14, 1834, P. L. 333, § 93 "Act February 18, 1871, P. L. 87, § "^Act April 14, 1834, P. L. 333, § 94. 1. " Ar>t Anril in 1HR7 T> T. fio BO " Rixzolo V. Com. 126 Pa. 54, 17 Atl. 520. " Act April 10, 1867, P. L. 62, § 2. § 407] JURIES. 373 found for Philadelphia,"* and Lancaster county.^" Under this legis- lation it becomes necessary for the outgoing jury commissioners to fill the wheel for the coming year, when the first regular court of common pleas is within thirty days thereof.®® If the wheel were not filled by the first term of court of the year, the defendants brought for trial at that term could object, but this would not be cause for complaint after the wheel is actually filled.®^ By the act of 1834 it was provided: "If thirty days shall not in- tervene between the time of depositing the names of jurors in the wheel or wheels as aforesaid, and the next court in any county, the jurors shall be drawn as aforesaid, for such court, from the names de-- posited in the wheel for the preceding year."®* The time taken for the filling of the wheel wiU not affect the se- lection.®^ 407. Eemoving old names. — It has been held proper to remove all names remaining in the wheel at the end of the year.*" Statutory provision for such action is found in the act of 1874, which permits the selection of new names where the array has been quashed for any of the reasons set forth in the first section. "It shall be the duty of the jury commissioners, president judge, or additional law jiidge of the respective district, or a majority of them, to meet at the seat of justice of the respective county, at least thirty days before the court at which such jurors shall be summoned to serve, and take out of the wheel all the names therein deposited, or, if a new wheel, clean out the same and make a new selection of persons, and deposit the names so selected in such wheel or in the new wheel for the remainder of the current year, in the same manner as is now directed by law for the selection of such persons and the depositing of their names in the wheel at the beginning of the year."*^ Under this legislation it has been held proper if the names be re- moved either by the sheriff or a commissioner, when done in presence of the judge and commissioners and under their supervision and di- rection."^ "Act April 20, 1858, P. L. 354, §§ 1, trial during a court commencing Janu- 2; Act March 13, 1867, P. L. 420, § 7; ary 18. This was based on the act of Act April 13, 1859, V. L. 595, § 1. 1805. "Act April 13, 1872, P. L. 791. See "'Act April 14, 1S34, P. h. 333, § 122. Com. V. Smith, 16 Pa. Co. Ct. 577, 12 ''Com. v. Uppard, 6 Serg. & R. 395 Lane. L. Rev. 337. (three weelca) ; Com. v. Manfredi, 162 "Re Bucks County Jurors, 20 Pa. Co. Pa. 144, 29 Atl. 404 (two months and Ct. 36. eight days). " Com. V. Mcmfredi, 162 Pa. 144, 29 °» Com. v. JAppard, 6 Serg. & R. 395. Atl. 404. In Com. v. Eocfimgle, 1 " Act March 18, 1874, P. L. 46, § 2. Browne (Pa.) 201, note, it was held bad <" Com. v. Clemmer, 190 Pa. 202, 42 to select jurors on December 18 for a Atl. 675. 874 CRIMINAL AND PENAL PROCEDURE. [chap, xviii. 408. Filling the wheel. — When the names have been selected, they shall be placed in the wheel in accordance with the act of 1834, which has only been repealed as to certain provisions. "The sheriff and commissioners aforesaid shall provide a sufficient number of small slips or pieces of paper, upon each of which they shall write or cause to be written the name, surname, and addition or occupation, and place of abode of each one of the persons selected. They shall roll up or fold the said slips, so that the names shall not appear without unfolding tliereof, and thereupon they shall deposit the names of the persons so selected in the appropriate wheel as aforesaid."®* The • actual writing of the slips may be by a clerk,*** and it is no error to put the written slips into a box until liie selection is complete, and then put all into the wheel.®^ The provision for the writing of the name, surname, addition or occupation, and place of abode is direc- tory merely, and is for the purpose, merely, of identification. Where identity is established, mistake in description is immaterial.®* 409. Certifying list. — "A list containing the name, occupation, and residence of every person placed in the jury wheel shall be kept, cer- tified by the judge and jury commissioners, or such of them as shall be present at the selection of such persons, and filed of record in the office of the prothonotary of the court of common pleas of the re- spective county."®^ The certificate should be signed by the officers who select the jury, but an objection that it was not signed by one, without evidence that he was present, is not ground for quashing.®^ A failure to attach the certificate to the list is irregular, but amend- able.®' The omission of the name of the juror from the certified list required to be filed in the prothonotary's office is prima facie evi- dence that the juror was not regularly selected, though this may be overcome by proof that he was.'''" As noticed, the filing shall be in the prothonotary's office, but a fil- ing there and a subsequent removal to the sheriff's office, though irreg- ular, is a substantial compliance with the statute, and will not fur- nish ground for quashing.'^ ^ "'Act April 14, 1834, P. L. 333, § 88. For Philadelphia, see act April 20, The act of 1867 substitutes jury for 1858, P. L. 354, § 3. county commissioners, § 4. ™ Com. v. Shew, 8 Pa. Dist. R. 484, •* Com. V. Lvppard, 6 Serg. & R. 395. Affirmed s«6 nom. Com. v. Eagan, 190 '" Com. V. Lippard, 6 Serg. & R. Pa. 10, 42 Atl. 374. 395. «» Com-. V. Byrne, 1 Kulp, 378. " Clark V. Com. 29 Pa. 129. See also " Challenge to Orand Jurors, 23 Mistake in Names of Those Summoned, Pittsb. L. J. 73, 8 Legal Gaz. 6. § 425, infra. " Klemm,er v. Mt. Penn Gravity B. Co. "Act March 18, 1874, P. L. 46, § 3. 163 Pa. 521, 30 AU. 274. § 410] JURIES. 373 410. Sealing and custody of the wheel and key. — "The commis- sioners of the several coimties of this commonwealth, except the coun- ty of Philadelphia, shall, from time to time, and as occasion requires, provide and at all times keep one wheel for the purpose of containing the names of jurors for the courts of the respective counties. Every of the said wheels shall be provided with a sufficient lock and key; the wheel shall remain and be in the custody of the commissioners of the respective county, and the keys thereof in the custody of the sher- iff of the same county. As soon as the selection of jurors and the de- positing of tlieir names in the wheel as aforesaid shall be completed, the sheriff shall cause the same to be locked and secured by sealing wax, and thereon the said sheriff and commissioners shall impress distinctly their respective seals.'"^^ So much of these sections as re- fers to county commissioners must be deemed to apply to jury com- missioners.''* "And the said jury commissioners, president judge, or additional law judge, or a majority of them, shall, in the mode and manner now directed by law, place the names of persons so selected in the proper jury wheel; and the said jury wheel, locked as now re- quired by law, shall remain in the custody of the said jury commis- sioners, and the keys thereof in the custody of the sheriff of said county."''* By § 3 of the act of 1858 relating to Philadelphia county it is provided : "The names of taxables so selected, with their respective places of residence and occupation, shall, in the presence of the said board, be written on separate pieces or slips of paper, which shall then and there be placed in a closed wheel, to be provided by and kept in the exclusive custody of the said sheriff, securely locked, sealed, or otherwise guarded from intrusion."^" "The said sheriff shall pre- serve the said wheel secure from all interference by others ; and if the said board, on any examination the members thereof may institute into the condition of the said wheel and its contents, shall discover that any names have been surreptitiously introduced or withdrawn there- from, it shall be evidence of misdemeanor committed by the said sher- iff; and thereupon it shaJl be the duty of any member of the said board to bind him over to answer at the next court of quarter sessions for the said misdemeanor . . . ."^^ Any reasonable device may be adopted by the ojfficers as a seal,'''' "Act April 14, 1834, P. L. 333, §§ 80, "Act April 20, 1858, P. L. 354, § 3. 83, 90. "Act April 20, 1858, P. L. 354, § 9. ■" Act April 10, 1867, P. L. 62, § 4. " Com. v. Bedell, 26 Pittsb. L. J. 85. "Act AprU 10, 1867, P. L. 62, § 2. 876 CRIMINAL AND PENAL PROCEDURE.' [chap, xviii, but their respective seals must be affixed. Sealing with the county- seal is not enough.^* And separate seals must be used;''* though it is no ground to quash that the county purchased them for the com- missioners.*** It is not clear whether the separate seals of more than a majority of the officers must be affixed. It was so suggested in Brown v. Oom.^^ where the array was quashed because but one seal was affixed, and in Bolland v. Com.^^ In Com. v. Delamater,^^ the array was quashed when but one seal closed the wheel, the sheriff hav- ing affixed his to the top of the lid. It was here intimated that these two seals i^roperly affixed would have been sufficient. Where the two jury commissioners have affixed their seals, the array will not be quashed because that of the sheriff was placed thereon by the dep- uty sheriff.** As directed by the acts of assembly above noticed, except for Phil- adelphia, the wheel must remain in the custody of the jury commis- sioners. The county commissioners should furnish a safe place for the depositing of it.*® Keeping in the vault of the county commis- sioners has been held sufficient,*^ or in a locked case in the vault,*'' or in the county commissioners' safe,** or in the county treasurer's vault,*' or in the actual possession of one of the jury commissioners at his home.®" The statute requires that the sheriff keep the key. The array will be quashed where it appears this was done by the jury commis- sioners.®* But an allegation of the improper keeping of it is not sus- tained by a mere averment that it was not at all times inaccessible.®^ And it was held irregular, though no ground for quashing, where the key was kept in a desk at times unlocked, since it should be kept where it is not ajccessible to anyone but the sheriff.®* 411. Penalty for failure to seal and lock. — "If the sheriff and commissioners of any county, or any of them, sliall neglect or refuse to lock and seal the wheel or wheels aforesaid of the respective coun- '" Lewis, Crim. Law, 619. " Rollamd v. Com. 82 Pa. 306, 22 Am. ^'Gwrley v. Com. 84 Pa. 151. The Rep. 758. same objection was raised in Rolland v. "' Com. v. Valsalka, 181 Pa. 17, 37 Com. 82 Pa. 306, 22 Am. Rep. 758. Atl. 405. »° OlMse V. Com. 2 W. N. C. 17. "' Gurley v. Com. 84 Pa. 151. " 73 Pa. 321, 13 Am. Rep. 740. »" Klemmer v. Mt. Perm Oravity R. Co. "' 82 Pa. 306, 22 Am. Rep. 758. 163 Pa. 521, 30 Atl. 274. "13 Pa. Co. Ct. 152, 2 Pa. Dist. R. '^ Kittanning Ins. Co. v. Adams, 110 562. Pa. 553, 1 Atl. 443. " Com. V. Broion, 1 Legal Chronicle, °' Com. v. Valsalka, 181 Pa. 17, 37 Atl. 345, 30 Phila. Lep. Int. 381. 405. " Com. V. Bedell, 9.8 Pittsb. L. J. 85. " Rolland v. Com. 82 Pa. 306, 22 Am. '"Com. V. Shew, 8 Pa. Dist. R. 484, Rep. 758. Affirmed 190 Pa. 10, 42 Atl. 374. §§ 412, 418] JURIES. 877 tj, or if the ooimnissioners neglect or refuse to take charge of such wheel or wheels, or if the sheriff neglect or refuse to take charge of the key belonging to such wheel or wheels, the sheriff or commission- ers so offending, and every of them, shall, on conviction thereof in the court of quarter sessions of the respective county, forfeit and pay a fine not less than $100, nor more than $1,000, at the discre- tion of the court.""* Similar provision is made for Philadelphia.®^ 412. Opening the wheel.— "The sheriff, in the absence of the com- missioners of the respective county, or of at least two of them, and the commissioners, in the absence of the sheriff of the county, shall not, at any time, open ar,y of the wheels aforesaid ; nor shall the sher- iff and commissioners open any such wheel except for the purpose of depositing therein the names of persons to be jurors, in pursuance of law or an order of court, or of drawing a panel or panels of jurors therefrom, in compliance with a precept directed to them for that purpose. And if any sheriff or commiGsioner shall offend herein, he shall forfeit, for the use of the respective county, a sum not exceed- ing $500, at the discretion of the court having jurisdiction of the offense.""® So much of this section as refers to commissioners shall be considered as applying to jury commissioners.®^ The wheel may also be opened when irregularities in the selection of jurors have oc- curred, or where it becomes necessary by reason of the breaking into or the destruction of the same, or where the custody has been im- proper.®* By this legidation it is necessary that the wheel be opened and unlocked in the presence of the sheriff; otherwise a motion to quash the array will- be sustained.®® 413. Drawing juries from the wheel. — "Said jury commissioners and the sheriff of the respective county, or any two of them, shall draw from the proper jury wheel panels of jurors, as grand jurors of the proper county, and as petit and traverse jurors for the trial of issues of fact which may be taken in any action, in any of the courts, civil and criminal, of the several counties aforesaid, in the manner now practised and allowed; but before the said jury commissioners and sheriff shall proceed to select or draw jurors in the manner afore- said, they shall severally take the oath or affirmation now prescribed by law to be taken by the sheriff and county commissioners before se- lecting and drawing jurors."^"" "In all cases where the number of "Act April 14, 1834, P. L. 333, § 84. 94, 95: Act Kareh 18. 1874, P. L. 46; ==Aet April 20, 1858, P. L. 354, § 9. Act March 5, 1875, P. L. 5, § 1. "' Act April 14, 1834, P. L. 333, § 91. ™ Com. v. Ba/ranowsU, 5 Pa. Co. Ct. "Act April 10, 1867, P. L. 62, § 4. 642, 45 Phila. Leg. Int. 370. "Act April 14, 1834, P. L. 333, §§ 93, ^"Act April 10, 1867, P. L. 62, § 3. B'iS CRIMINAL AND PENAL PROCEDURE. [chap, xviii. jurors to be returned to any coiirt shall not be precisely fixed by law, it shall be the duty of the respective court, by a standing order, or by orders made from time to time, to direct the number of jurors which shall be returned at each successive term of such court, subject, nev- ertheless, to be enlarged, as aforesaid, by order of the judges of the same court, or of any two of them, in vacation, if emergencies shall require it."^"^ Section 4 of the act of 1858 provides for Philadelphia county: "At least three weeks before the commencement of each and every term of any of the said courts, the said board, or a quorum thereof, shall assemble and cause to be drawn from the said wheel as many of the names of the taxables therein deposited as may be necessary to serve as grand and petit jurors for and in each of the said courts, ac- cording to the command of the venire or venires directed to the said sheriff ; one list of which names, residences, and occupations so drawn shall be duly certified by the said board to the proper court, wilii the venire issued therefrom; and one other list of said names, occupa- tions, and residences shall be duly certified to the said sheriff."^ "^ For the manner of drawing in Lancaster county, see act of April 13, 1872."^ The fact that the sheriff is a brother of the party interested in a case to be heard does not disqualify him from aiding in the draw- ing,^"* or that he has made the information upon which defendant was arrested.*"^ The two jury commissioners may draw in the ab- sence of the sheriff.^"* The officers have no right to choose which of the names drawn shall be summoned. They cannot say that a per- son is unsuitable or incompetent.^"^ Nor can they be taken from a particular section of the county.^"* Noncompliance with mere tech- nicalities which are only directory is insufficient to quash.^"' 414. Where persons dead or removed.— "If any of the persons whose names shall be drawn as aforesaid shall have removed from the coun- ty, or shall be dead or absent, the said sheriff and commissioners shall destroy the slips containing the names of persons so removed or dead, and proceed to draw other names, until the several panels shall be completed ; and thereupon they shall lock and seal up, in the man- •» Act April 14, 1834, P. L. 333, § 116. «• Clark v. Com. 123 Pa. 555, 16 At! "" Act April 20, 1858, P. L. 354, § 4. 795. See also act April 8, 1862, P. L. 320, § '«« Com. v. Brovm, 1 Legal Chronicle 1, for supervision of drawing. 345, 30 Phila. Leg. Int. 381 ™P. L. 799; Com. v. Smith, 16 Pa. "'1 Browne (Pa.) 121. Co. Ct. 577, 12 Lane. L. Rev. 377. ™ Hartshome v. Patton, 2 Dall (Pa.) ^'^ Mumhoioer v. Patton, 10 Serg. & 252. R. 334. 13 Am. Dec. 678. i™ Chase v. Com. 2 W. N. C 17 §S 415-4171 JUPJES. 379 ner aforesaid, the said wheel."^^" But it is not grouad for challeaige to tlie array where such names were not destroyed, it not appearing that such death or absence was known to the sheriff or jury commis- sioners when the names- were drawn.^^^ 415. Order of drawing. — Statutory provision has been made for cases where more than one panel is required. "Whenever writs of venire for a grand jury ana petit jury in the court of quarter ses^ sions, and also a writ of venire from the court of common pleas in any county, except the county of Philadelphia, shall be in the hands of the sheriff and commissioners at the same time for execution, the required number of names first drawn shall be annexed in a panel to the venire for a grand jury, and the required number of names next drawn shall be annexed in a panel to the venire for a petit jury in the court of quarter sessions, and thereupon the said sheriff and commissioners shall proceed to draw and annex the panel required, to be returned into the court of common pleas."^^'^ "In every county wherein the terms of the courts of common pleas and quarter ses- sions of the peace are limited by law to one and the same week, the sheriff and commissioners of such county shall annex and return one and the same panel of names to the venires issuing as aforesaid, for the summoning and returning of petit and general jurors in the said courts.""^ 416. Lists of those drawn. — "The commissioners of the several counties respectively shall make out, in alphabetical order, two lists of the names of the persons so drawn, to serve as grand, petit^ or spe- cial jurors ; and one of the said lists they shall deliver to the sheriff of the respective county, and the other to the prothonotary or clerk of the proper court, to be set up by them in their respective offices, for the inspection of all persons concerned. "^^* A failure to make out the list alphabetically is not ground for quashing, being a mere di- rection.^^® 417. Jury process. — "The clerks of the several courts of oyer and terminer, quarter sessions, and mayors' courts of this commonwealth shall, upon the order or precept of the said court, or two of the judges thereof in vacation, issue, according to the direction of such order, to the sheriff and commissioners of the proper county, a writ or writs commanding the said sheriff and commissioners to impanel, and the "»Aet April 14, 1834, P. L. 333, § "'Act April 14, 1834, P. L. 333, § 119. 121. >" Rolland v. Com. 82 Pa. 306, 22 Am. "' Act April 14, 1834, P. L. 333, § 123. Rep. yrs. "» Chase v. Com. 2 W. N. C. 17. "" Act April 14, 1834, P. L. 333, § 120. 380 CRIMINAL AND PENAL PROCEDURE. [chaf. xviu said sheriff to summon, a grand jury, or petit jury, or both, to inquire of or try all causes and matters which may he depending in the said court, and give to them in charge at the term thereof to be holden next after the date of the said precept""® By the act of 1867 jury com- missioners are substituted for county commissioners.^^^ The precept may be issued under the hands and seals of the judges, and the process should be in the name of the commonwealth of Pennsylvania,^^* An allegation that no precept was issued will not be considered by the appellate court, when the record shows the contrary.^^® There is no power in the court to direct that the jurors be summoned from a par- ticular portion of the county.-'^" The judge of the court of quarter sessions may award one writ for the summoning and returning of the grand jury in the said court and in the court of oyer and terminer to be held at the same time. If distinct writs be awarded, it is the duty of the judge to order the sheriff and commissioners of the respective counties to annex and return one and the same panel to each of the said writs.'' ^^ Special provision is made for Philadelphia.'^^ The same provision is made for the summoning of the petit jury.'^" Forms of writs of venire for the grand jury and petit jury re- spectively have been provided by act of assembly.'^* If the precept call for the jury for both quarter sessions and oyer and terminer, and but one venire is issued, the array will not be quashed.'^^ In such case the court mayorder a venire for the oyer and terminer to issue, to be returned nunc pro tunc}^^ The precept may order the issuance of one writ of venire for both courts, or one gen- eral precept may command the issuance of two separate venires.'^'' Should the venire for the drawing of the grand jury direct the tak- ing of the names from the wheel for grand jurors, when but one wheel is provided by law, the word "grand" will be treated as surplus- age.'^* Whenever challenges to the array are sustained a precept may is- sue for a special venire returnable forthwith.'^* "•Act April 14, 1834, P. L. 333, § 108. ™Act April 14, 1834, P. L. 333, § '"Act April 10, 1867, P. L. 62, § 4. 112. '•» White V. Com. 6 Binn. 179, 6 Am. ™ April 14, 1834, P. L. 333, §§ 109, Dee. 443. 111. "» Werfel r. Com. 5 Binn. 65. ^" Com. v. Morton, 1 Kulp, 276. ^''Hartshorn v. Patton, 2 Dall. (Pa.) ""' Com. v. Seybert, 4 Pa. Co. Ct. 152. 252. "' Com. V. 8m,ith, 2 Serg. & R. 300. "'Act April 14, 1834, P. L. 333, § '"> Com. v. Salter, 2 Pearson (Pa.) 110. 461. '== Act March 31, 1843, P. L. 122, § 0; '=" Act April 14, 1834, P. L. 333, §§ Act February 8, 1848, P. L. 25, § 3. 146-148. §§ 418, 419] JURIES. 881 418. Direction and execution of writ. — The writ is directed to the sheriff and jury commissioners, but if directed to the sheriff and com- missioners it will be good if delivered to the proper courts.^^" "Whenever any writ of venire shall be delivered to any sheriff he shall give immediate notice thereof to the commissioners of the re- spective county ; and the said sheriff and at least two of the commis- sioners shall, without delay, draw from the proper wheel, after hav- ing turned the same sufficiently to intermix the papers deposited therein, the names of so many persons to be jurors as shall be re- quired by such writ."^^^ The 4th section of the act of 1867 substi- tuted jury commissioners for county commissioners as required by the act of 1834 ; and the sheriff must now notify them. Drawing may now be by the jury commissioners or any two of them.'^^^ Special provisions have been made for Philadelphia county: "It shall be lawful for the court having criminal jurisdiction for the trial of all indictments in the city and county of Philadelphia to issue writs of venire facias for the drawing, summoning, and returning of grand and petit jurors from the criminal courts [and the panel for petit ju- rors shall hereafter be drawn from the same wheel from which the ju- rors in civil cases now or hereafter maybe drawn], and the proper offi- cers shall at all times have said wheel supplied with a sufficient num- ber of names of competent jurors for that purpose."^^* "oaid court shall have power and authority to issue two or more venires for the drawing, summoning, and returning of jurors to serve as petit jurors, at any term of said court, to be drawn, summoned, and returned as now required by existing laws, and to fix the same number for each panel as now designated by law; Provided, That no venire shall be issued for the return of a panel of jurors to serve for a period less than two weeks, except in cases of special venires, when a panel is exhausted by challenges, as now directed by law."^^* The precept which directs the summoning of the board to draw the jurors under the 4th section of the act of 1858 is addressed to the sheriff.^^^ 419. Summoning jurors. — "It shall be the duty of the sheriff to summon, at least ten days before the return day of the venire, the persons whose attendance shall be thereby required, by delivering to each of the said persons a separate ticket, in the customary form, specifying the duty enjoined, or by leaving such ticket at their usual "° Com. V. Bmith, 16 Pa. Co. Ct. 577, "' Act March 31, 1843, P. L. 122, § 6. 12 Lane. L. Rev. 337. '"Act February 8, 1848, P. L. 25, § 3. "' April 14, 1834, P. L. 333, § 118. ™ Com. v. Miller, 4 Phila. 210, 17 "- See Drawing of juries, § 413, supra. Phila. Leg. Int. 285. mZ CRIMINAL AND PENAL PROCEDURE. [chap. xvni. places of abode, respectively, and the sheriff of each county shall en- ter, in alphabetical order, in a book to be kept by him for that pur- pose, the surnames of all persons, together with their Christian names and additions, who shall be summoned by him or by any officer or other person legally authorized for the purpose, and who shall duly attend and serve upon any jury in any of the said courts, and also the times of their services respectively ; and said book shall be deliv- ered by him to his successor in office."^^® The summoning may be either by the sheriff or his deputy, •■ ^^ and notice miist be given at least ten days before his presence is required. Otherwise the juror is not bound to attend.-*^* It is improper for the sheriff when summoning a juror to ask him any questions as to his bias or prejudice, for or against the prisoner, or Avhether he has any conscientious scruples against capital punishment; but where it is clear that such conduct did not result in injury to the prisoner, the court will not reverse on this ground. ■'^® The juror must appear at the time for which he was summoned, but a trial may be extended into another week until concluded ; and the jurors, though summoned for the first alone, may, of course, con- tinue to act. Statutory provision is also made for continued and special courts, and for the attendance of jurors.-**" If jurors do act during a second week, it will be presumed that they were in attend- ance by direction of the court, which is given the power to hold such sessions. ■'*^ 420. In Philadelphia.— "It shall be the duty of the said sheriff to summon each of the said jurors, in the manner now practised, to ap- pear in the court for which he may be drawn, on a day specified in the summons, to serve as a jaror during the ensuing teim; the said summons shall be served on each juror at least ten days before the time fixed for his appearance ; of which said several services the said sheriff shall make return to the proper court, under oath, stating the time and manner of such service."^*^ It is the duty of the sheriff to see that the lists are prepared in time and served ten days before the meeting of the court^** 421. Where sheriff disqualified.— If the sheriff be not disinterested, "•Act April 14, 1834, P. L. 333, §§ "»See chapter xvn., §§ 381, 382, ante. 125, 127. "' Pennsylvania Mut. Aid Soc. v. Cor- ^'^ Com. V. Salter, 2 Pearson (Pa.) ley, 2 Pennyp. 398. *&!• "" Act April 20, 1858, P. L. 354, § 5. '== 1 Browne (Pa.) 200. "" iJe Summoning Jurors, 13 W. N C "» Com.- V. Cleary, 148 Pa. 26, 23 Atl. 94. 1110. § 422] JURIES. 383 — as, e. a., when he is a brother of the plaintiff, the array of jurors summoned by him will bo quashed; but the same reason would not be ground for objection, if he merely assisted in draAving the jury with the jury commissioners.-'** Provision has been made by statute for summoning in case of such disqualification, "The several duties hereby enjoined upon the sheriffs of the several counties, relative to the selecting, summoning, and returning of jurors as aforesaid, shall, in case of the death, resignation, removal from office, inability, or in- competency of any sheriff to act, be performed by the coroner of the respective county; and the coroner performing such duties shall be subject to all and singular the provisions herein enacted in relation to the sheriffs; and in case of the death, resignation, removal from office, inability or incompetency of the sheriff and coroner to act, by a disinterested person, to be appointed for that purpose by the court, or by two of the judges of the coiirt of common pleas of the respec- tive county. Whenever the sheriff of any county shall be incompe- tent to perform in any case which may be depending and for trial by jury, as aforesaid, the duties hereby enjoined, the coroner of such county, being otherwise competent, shall have the power, concurrently with the commissioners thereof, to execute the writ of venire for the gi'and jury in manner aforesaid."-'*^ 422. The return. — "The venires issuing as aforesaid from any court of quarter sessions of the peace of any county shall be made returnable unto the same on the 1st day of the said court."^*® But a return made four days after the time provided by law will not be ground for quashing the array, where the jurors summoned are actual- ly in attendance.-'*'^ Under the act of 1805 a failure to return was held to be ground for quashing.^** A return should be made to the venire by the jury commissioners and the sheriff. It should appear upon the record that the names of the panel were drawn from the wheel in the manner required by law. "It is true the act of assembly does not require the jury com- missioners to return the venire. But this is a common-law duty, and needs no legislative command. It is the duty of every officer to whom a writ is directed, to make return of the manner of its execu- tion, and such return is the appropriate evidence of that fact."^*^ '" Munshower v. Patton, 10 Serg. & "' Com. v. Morton, 1 Kulp, 276. R. 334, 13 Am. Dee. 678. ^^ Com. v. Hoofnagle, 1 Browne (I>a.) ^«Act April 14, 1834, P. L. 333, §| 201, note. 131, 132. ^"Rolland v. Com. 82 Pa. 306, 322, 22 "'Act April 14, 1834, P. L. 333, § Am. Rep. 758. 115. 884 CHIMINAL AND PENAL PROCEDURE. [chap. xvur. So, the record should show the drawing of the names in the manner required by law;*^** and a failure so to set forth has been held ground for quashing, under the act of 1805.^^^ But due qualification will be presumed where nothing appears, until the contrary is shown.^^^ The court has undoubted authority to call upon its officers to make a cor- rect and proper return of the process directed to them, but such de- fects are amendable.^ ^•'' An omission of a sheriff to sign a return can be corrected by amendment ;' ^* or to show that the jury was legally drawn ;^°^ or to show that jurors were summoned for both quarter sessions and oyer and terminer ;^^'' or to add an affidavit.^''' Objec- tion to defects in returns must be taken seasonably and not delayed until after verdict.-'®* 423. Swearing to. — It is not clear whether retuanis to venires must be sworn to, except in Philadelphia. Even if this is requisite, the omission is an amendable defect.^^* The act of 1858^®" for Philadel- phia requires the sheriff to make his return to the proper court under oath, stating the time and manner of such service. Under this stat- ute the omission of the affidavit would render the return defective, though it may be amended.^*" 424. Number to be summoned. — "In all cases where the number of jurors to be returned to any court shall not be precisely fixed by law, it shall be the duty of the respective court, by a standing order, or by orders made from time to time, to direct the number of jurors which shall be returned at each successive term of such court, subject, nev- ertheless, to be enlarged, as aforesaid, by order of the judges of the same court, or of any two of them, in vacation, if emergencies shall require it."^^^ But in all cases "the number of persons who shall be summoned and returned, as aforesaid, to serve as petit jurors in any court of oyer and terminer, shall not be less than forty-eight nor more than eighty, and in any court of criminal jurisdiction, not less than twenty-four nor more than sixty."*^* "The justices of any "" Rolland v. Com. 82 Pa. 306, 22 Am. "» Lynch v. Com. 77 Pa. 205 ; Fife v. Rep. 758. Com. 29 Pa. 429. "^ Eaton v. Com. 6 Binn. 447, under '"'Com. v. Baiter, 2 Pearson (Pa.) act of 1805. 461. "^Com. V. Green, 1 A3h:ii. (Pa.) 289. '"April 20, P. L. 354, § 5. Return is here amended. '"' Com. v. Miller, 4 Phila. 210, 17 ""Com. V. Oreen, 1 Ashm. (Pa.) 289. Phila. Leg. Int. 285. '"Com. V. Chauncey, 2 Ashm. (Pa.) "^Act April 14, 1834, P. L. 333, § 90. 116. For Philadelphia, see act April «= Rollcmd V. Com. 82 Pa. 306, 22 Am. 20, 1858, P. L. 354, § 4. Rep. 758. '""Act April 14, 1834, P. L. 333, § "'Com. V. Morton, 1 Kulp, 276. 113. ""Com. V. Salter, 2 Pearson (Pa.) 461. § 425] JURIES. S85 county court of oyer and terminer may award a venire for such num- ber of jurors only as may be required in the court of quarter sessions of the respective county, subject to be enlarged by an order of any two justices of the said court, to the sheriff and commissioner of such county, at any time before tlie return day thereof, if emergencies shall require it."^®* For all oyer and terminer cases, forty-eight jurors must be sum- moned. If less than that number are ordered, it is bad, and the de- fect is not cured by verdict, because the court is not legally constitut- ed unless that number be summoned.^^^ But it is sufficient if forty- eiglit be drawn, though that number be not in attendance. Thus, where two are not found, and one is dead, it not appearing that the officers who drew the jury were aware of these facts, it is suffi- cient.-'^'' Or where one is an unnaturalized alien, and hence in- competent;^®'^ or where three are dead or have removed;^®* or where one is removed, and one is not found.^®^ 425. Mistake in names of those summoned. — The 88th section of the act of April 14, 1834, relating to juries, requires the names, surnames, or occupations of jurors to be given, but this is only for the purpose of identification. The provision is directory only.''^'-' Where the identity of those whose names were put in the wheel with those who were drawn and summoned is undisputed, mere mistakes in the initials, the Christian names, and the spelling of the surnames of the jurors do not furnish ground for quashing the venire after a plea of not guilty has been entered.-'^^ The drawing of Jasper M. Burdick for Casper M. Bur- dick, the latter name appearing on the jury list filed in the prothono- tary's office, is not ground for challenge, where the evidence shows such person to be the only one in the city having the occupation given.^''^ 'Not is an error in writing the name "General," instead of "Gemmel," on the sheriff's return of jurors summoned, ground for successful challenge, where it appears that the panel of jurors certi- fied by the sheriff, jury commissioners, and also the notice served upon the juror, contained the name "Gemmel."^'^* The occupation •"Act April 14, 1834, P. L. 333, § 114. "» Com. v. Seylert, 4 Pa. Co. Ct. 152. ^Donaldson v. Com. 95 Pa. 21. "' Glarh v. Com. 29 Pa. 129, 136. "» Rolland v. Com. 82 Pa. 306, 22 Am. "' Com. v. Cressinger, 193 Pa. 326, 44 Eep. 758. Atl. 433. Here, mistakes in the names 1" Faust V. Com. 33 Pa. 338 ; Buchan- of five out of sixty. an V. Com. (Pa.) 5 Cent. Eep. 733, 6 "''Com. v. Valsalka, 181 Pa. 17, 37 Atl. 704. Atl. 405. ^'^ 8'howers v. Com. 120 Pa. 573, 14 "'Com. v. Valsalka, 181 Pa. 17, 37 Atl. 401. Atl. 405. Pa. Crim. Proc. — 25. 386 CRIMINAL AND PENAL PROCEDURE. [chap, xviii. is stated for aiding in identification. That by which the juror is usually known in the community is sufficient ;^^* and if the identifi- cation is cojnpleted by name and residence, it is immaterial that the occupation is incorrectly stated. Thus, the stating of it to be "whit- tier," instead of "victualler," is sufficient ;^''^ or "laborer," instead of "farmer;" or "porter," instead of "potter;"^'* or mine boss, where the juror had changed his occupation.^^^ The overruling of a chal- lenge for cause for such a reason would not be ground for reversal, where it appeared that there were remaining other peremptory chal- lenges;-'^* nor for new trial where no objection is made, and the de- fect might have been discovered by proper inquiry. •'''® See also Personation of Jurors, § 462, post. 426. Waiver of defects. — "JSTo verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed, nor sen- tence delayed, for any defect or error in the precept issued for any court, or in the venire issued for summoning and returning of ju- rors, or for any defect or error in drawing, summoning, or return- ing any jury or panel of jurors ; but a trial, or an agreement to try on the merits, or pleading guilty or the general issue, in any case, shall be a waiver of all errors and defects in, or relative and apper- taining to, the said precept, venire, drawing, summoning, and re- turning of jurors."^*" Matters which could have been objected to as ground for challenge are too late after plea entered. Thus, the defendant cannot object, after this is done, because of improper cus- tody of the key of the wheel ;^*^ or to the manner of drawing and summoning the jury;^®* or to mistakes in initials or names ;^** or occupation;^** or to the manner of drawing the jury;^*^ or to the failure to seal the jury- wheel ;^*® or to defect in the precept for the venire;**'^ or to the omission of the sheriff to sign the return;*** or to the summoning of a wrong person by mistake, whose occupation and residence are identical.*** Nor -will the court allow the with- "* Clark V. Com. 29 Pa. 129. Here, "'Com. v. Seyhert, 4 Pa. Co. Ct. 152. mill boss. ^ Com. v. Cressinger, 193 Pa. 326, 44 V. Com. 84 Pa. 18. Atl. 433 ; Jewell v. Com. 22 Pa. 94. ' Com. V. Windish, 176 Pa. 167, 34 "* Com. v. Cutaiar, 6 Pa. Dist. R. 403. Atl. 1019. ^^'Dyott V. Com. 5 Whart. 67. ^"Com. V. VaUalka, 181 Pa. 17, 37 ""Com. v. Sallager, 3 Clark (Pa.) Atl. 405. 127. ™8ayres v. Com. 88 Pa. 291. See, '" Lynoh v. Com. 77 Pa. 205. Here, generally, Challenges, §§ 436-439, post; directed to sheriff and commissioners, Waiver, § 426, infra. but properly returned by sheriff and "' Com. V. Cutaiar, 5 Pa. Dist. R. 403. jury commissioners. "°Act March 31, 1860, P. L. 427, § 53. »» Com. v. Smith, 2 Serg. & R. 300. »" Com. v. Freeman, 166 Pa. 332, 31 "• Com. v. Beucher, 10 Pa. Co. Ct. 3, Atl. 115. 48 Phila. Leg. Int. 220. See Com. v. § 437] JURIES. 387 drawal of the plea in order that a motion may be made for irregu- larities;^'** but such a challenge to the array of petit jurors has been sustained, when not drawn until after plea entered.^ *^ Objections which would be good ground for challenge for cause to particular grand jurors or to the array should be taken before that body considers the bill of indictment After that time, it is too late.^®^ These oases are in line with the general rule that a chal- lenge to grand jurors must be made before the jury is impaneled. This is always true where the objection to the grand juror was known, or might have been known by the exercise of reasonable dili- gence, and might have been interposed by challenge, and was not.^'* 427. Talesmen. — "If a sufficient number of the persons summoned and returned as aforesaid shall not appear as required, or if, by rea- son of challenges or otherwise, there shall not be a sufficient number of jurors present, competent for the trial of any cause which shall be called for trial, the sherifF or coroner, or, if the case require it, two citizens, to be appointed by the court for that purpose, shall, upon the order of the court, immediately summon and return from the bystanders, or from the county at large, so many qualified and competent persons as shall be necessary to fill up the jury for the trial of such cause."^*"* "If any person summoned and returned from the bystanders, or from the county at large, as aforesaid, shall refuse or neglect, without reasonable excuse, to attend and serve, as aforesaid, at such court, he shall be liable to the penalties provided in the case of other jurors summoned and making default of appear- ance; and such penalty shall be levied and collected in like manner, and paid for the same use."^'^ Sections 146 and 147 of the same act provide for the issuance of a special venire when a challenge to the array is sustained by either party. Section 148 made similar provisions for criminal cases where the challenge was made by the defendant. "The courts aforesaid, having jurisdiction of any criminal cause, shall respectively have the like power whenever a challenge to the array shall be made by the defendant and sustained by such court, so that no jury shall be pres- ent legally qualified as aforesaid to try such cause; Provided, That Sprifig, 5 Clark (Pa.) 238, in which a 461; Com. v. Chauncey, 2 Ashm. (Pa.) new trial was granted for false person- 90; Com. v. Roberts, 21 Pittsb. L. J. ation, and Personation of Jurors, § 462, 173 ; Com. v. Yetter, 1 York Legal Rec- post. ord, 135. "» Com. V. Eagan, 190 Pa. 10, 42 Atl. '" Com. v. Craig, 19 Pa. Super. Ct. 81. 374. '"Act April 14, 1834, P. L. 333, § ^"Com. V. Sheto, 8 Pa. Dist. R. 484. 144. '"Com. V. Salter, 2 Pearson (Pa.) ""April 14, 1834, P. L. 333, § 145. 388 CRIMINAL AND PENAL PEOCEDUEE. "" [chap. xvin. in case such defendant shall he allowed by law to make twenty peremptory challenges, the niniber of jurors returnable upon such writ shall be thirty-six. "^^® The Penal Code of 1860 summarized these provisions, which applied to both civil and criminal proceed- ings, but left them unrepealed.^®'' The 41st section of the act of 1860 provides: "All courts of criminal jurisdiction of this common- wealth shall be, and are hereby, authorized and required, when oc- casion shall render the same necessary, to order a tales de circum- stantibus, either for the grand or petit jury, and all talesmen shall be liable to the same challenges, fines, and penalties as the principal jurors: Provided, That nothing herein contained shall repeal or al- ter the provisions of an act passed April 20, 1858, entitled 'An Act Establishing a Mode of Drawing and Selecting Jurors in and for the City and County of Philadelphia.' "^^^ Special provision is made for Philadelphia.^»3 428. When ordered. — There is nothing in this legislation, or in that for Philadelphia, which will prevent the issuance of the writ of tales de circumstantibus for both grand and petit jurors.^""'^ It is usually ordered when the panel is exhausted by challenge, and no constitutional right of the defendant is infringed because it is ex- hausted by peremptory challenges of the commonwealth.^"^ But it is within the discretion of the court to order the issuance of a writ returnable forthwith, and it will be refused where it would be neces- sary for the sheriff to secure talesmen from one community, where prejudice exists against the defendant.^*^ In case the writ be issued, the necessity therefor and the order of the court should be made to appear by the record. Thus, a failure to set forth that the panel was exhausted and that the court directed the issuance of a writ is irregu- lar, though cured by going to trial without objection.^"* It is to be noticed that § 148 of the act of 1834, which is left un- repealed by the act of 1860, provides for the special venire when the challenge to the array is made by the defendant and is sustained. There is nothing in either act which would vest such power in the court when the challenge is made by the commonwealth.^"^ 429. To whom issued. — The venire is to be issued to the sheriff or coroner, or, if the case require it, two citizens may be appointed by 1" Act April 14, 1834, P. L. 333, § 148. '^ Hartzel v. Com. 40 Pa. 462. '" Report on the Penal Code, 46. ^ Com. v. Shew, 8 Pa. Dist. R. 484. '""Act March 31, 1860, P. L. 427, § 41. Affirmed on other grounds, suh nom. ""Act April 20, 1858, P. L. 354, § 7. Com. v. Eagan, 190 Pa. 10, 42 Atl. 374. ""-• Com. V. Morton, 12 Phila. 595, 34 »" Jewell v. Com. 22 Pa. 94. Phila. Leg. Int. 438. "" Williams v. Com. 91 Pa. 493. g§ 480-432J JUlllEs. 389 the court for tbat purpose.^"® "WTien the court believes it necessary, he may appoint two elisors to summon the proper number, and is not limited in this respect to cases where the sheriff is disqualified and the coroner cannot act.^"'' Lists of the talesmen summoned need not be certified to the prothonotary's otBce, as is required by the act of 1834, in ordinary oases in which jurors are selected and drawn.^"* 430. Who summoned. — The writ of tales de circumstantibus orig- inally authorized the summoning of bystanders alone. The act of 1805 provided likewise.^"® The subsequent legislation makes no distinction between the bystanders and persons in the county at large. "There is no ground, therefore, to support a distinction, an.d it cer- tainly infringes no rule of right or of policy to hold that under an order for talesmen the venire must issue generally, and not specially to summon the bystanders only, or specially for persons from the body of the county only. Under the criminal procedure act, the sheriff may summon the talesmen from either or both. The expres- sion tales de circumstantibus was evidently intended to include both."2i» 431. Number summoned. — The number of talesmen to be sum- moned is within the discretion of the court. Thus, the court has di- rected the calling of eighty where four were to be selected j^^-"^ of one hundred ;^^^ of ten.^^^ And it may direct successive venires for talesmen when necessary to complete the panel.^^* 432. Talesmen in Philadelphia. — Tor Philadelphia it is provided : "Whenever talesmen are required in any of the said courts, the said sheriff shall produce the said wheel in open court, and in the pres- ence of the judges thereof draw therefrom five names for every tales- man required; which names so drawn shall be immediately noted on the minutes of the court, whereupon a venire sliall be issued, requir- ing the said sheriff to bring into court any one of the said five per- sons so drawn, to serve as a tales juror; no tales juror shall be select- ed or sei-ved in any other manner ; the tickets or slips so drawn from the said wheel shall be returned thereto."-^" Under this section, the court is not limited in the summoning of talesmen to five names for ™Act April 14, 1834, P. L. S33, § Com. v. Cressinger, 193 Pa. 326, 44 Atl. 144. 433; Com. v. Morton, 1 Kulp, 276. ^ Com. V. Carson, 3 Phila. 219, 15 ^^ Com. v. TvAtchell, 1 Brewst. (Pa.) Phila. Leg. Int. 325. 551. '''Com. V. Morton, 12 Phila. 595, 34 '^- Broim v. Com. 76 Pa. 319. Phila. Leg. Int. 438. "" Com. v. Cressinger, 193 Pa. 326, 44 ^°» PUlips V. Gratz, 2 Penr. & W. 412, Atl. 433. 23 Am. Dec. 33. '^' Com. v. Eaton, 8 Phila. 428. '^ Brown v. Com. 76 Pa. 319, 337; """Act April 20, 1858, P. L. 354, § 7. 390 CKIMINAL AND PENAL PROCEDUKE. [chap, xviii. each place on the jury remaining unfilled.*^® There is nothing in the act of 1858 to prevent the issuance of the writ of tales de circum- stantibus for grand as well as petit jurors.^*' '"Com. V. Eaton, 8 Phila. 428. '^' Com. V. Morton, 12 Phila. 595, 31 Phila. Leg. Int. 438. CHAPTEK XIX. JURIES— CONTINUED. 433. Tmpaneliiig jury. 434. Swearing jury. 435. Excusing jurors. 436. Challenges to the array. 437. Peremptory challenges under act of 1860. 438. Peremptory challenges under act of 1901. 439. Challenges for cause. 440. Determination of challenge for cause. 441. Examination on voir dire. 442. Opinions. 443. Conscientious scruples. 444. Scruples against circumstantial evidenoiL 445. Scruples against insanity. 446. Interest or relationship. 447. Serving two successive years. 448. Illiteracy. 449. Insanity. 450. Nonresidence. 451. Alienage. 452. Taxpayers. 453. Religious belief. 454. Proof of incompetency. 455. Waiver of right to challonga. 456. Effect of refusal. 457. Standing aside jurors. 458. Separation of jury in capital cases. 459. Separation of jury in noncapital cases. 460. Misconduct of jury. 461. How misconduct proved. 462. Personation of jurors. 463. Intermeddling with jury by party. 464. Polling the jury. 465. View by jury. 466. Trial by less than twelve. 467. Jury de medietate linguce. 433. Impaneling jury. — "On the return of any venire issued as aforesaid, the prothonotary or clerk of the respective court shall cause tlie names of the jurors impaneled and summoned, as afore- said, to be written separately on distinct slips or pieces of paper, as 391 & 882 CRIMINAL AND PENAL PROCEDURE. [chap. xrx. nearly alike in size and appearance as may be ; lie sliall, by direction and u,uder notice of the judge presiding, roll or fold up the said slips separately, and as nearly in the same manner as may be, and put them in a box to be provided by him for that purpose."^ Section 140 of the act of 1834, amended by the act of 1885,^ providing for the calling of twenty jurors into the box, applies only to civil cases, and not to criminal proceedings."' Though the criminal court cannot be compelled to call the jury in accordance with this act, yet, if it does so and no objection is made, but the trial is proceeded with, the defect is cured, by virtue of § 53 of the act of I860.* The defendant is entitled to a drawing from the full panel of jurors. But it is no ground for objection that such is not done, when twelve of the ju- rors were engaged in the consideration of another case." The record should show a proper selection of the jury, but it is sufficient if it set forth that they were duly called and sworn.® 434. Swearing jury. '' — The oath set forth in § 141 of the act of 1834 applies only to civil cases. In criminal proceedings the fol- lowing common-law form is regularly used: "You do swear that you will well and truly try and true deliverance make between the commonwealth and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence, so help you God."® The record must show the administration of a legal oath. The use of the words "duly impaneled and sworn" is sufficient to sig- nify that such was administered, since "duly" means properly, fitly, regularly, or becomingly;" or "duly sworn and called;"^" or "were all sworn or affirmed, respectively to try."^^ Whenever the record shows regularity on its face, a presumption of legal swearing arises.-'^ Where jurors are called and accepted separately, it is within the discretion of the court to determine whether each shall be sworn as accepted, or the oath delayed until twelve have been selected.^* In any case the consent of the defendant to so swearing would be a waiv- er.i* If the jury has been sworn in part, the court may for good cause 'Act April 14, 1834, P. L. 333, § 139. 'Holmes v. Com. 25 Pa. 221. 'June 23, P. L. 138. 'See also Grand Jury, chapter x., » Com. V. Spink, 137 Pa. 255, 20 Atl. ante. 680; Re Galling Jurors, 1 Pa. Co. Ct. ' Beale v. Com. 25 Pa. 11. 044, overruling in efTect Com. v. Car- ° Beale v. Com. 25 Pa. 11. ling, 1 Pa. Co. Ct. 413, 1 Lehigh Valley "Holmes v. Com. 25 Pa. 221. L. R. 110; Com. v. Todd, 1 Pa. Co. Ct. ^^ Oathcart v. Com. 37 Pa. 108. 416. "Cathcart v. Com. 37 Pa. 108. 'Com. V. Kay, 14 Pa. Super. Ct. 376. ^'Com. v. Ticitchell, 1 Brewst. (Pa.) ■ Com. V. Weber, 167 Pa. 153, 31 Atl. 551. 481. " Com. V. Fritch, 9 Pa. Co. Ct. 164. § 435] JUEIES. 393 discharge it, and direct the drawing to begin anew,^' but where the whole jury has been sworn, it cannot be discharged in a capital case, except in case of absolute necessity, or in other offenses where there is a reasonable necessity.^® Where, however, the de- fendant consents to the discharge of a juror after swearing, and an- other is substituted, he cannot afterward except.''' Irregularities in the swearing of jiiries will be waived by the de- fendant going to trial without objection.'* 435. Excusing jurors.— It is within the discretion of the court to excuse a juror. When he is disabled by sickness, or other cause, from sitting, the court ought not to require him to be sworn. It must be permitted to judge what is a sufficient excuse, and the exercise of its discretion is not the subject of revision.'* It is proper for the court to excuse one whose duties are public and who could not act by dep- uty, such as an "inspector of bark," but the rule is different where the juror can act by deputy, or his duties are of a private nature, such as a "weigh master."^" So, one summoned as a talesman was excused, who came into the court room for a moment and was sum- moned, but who had an imperative business engagement f^ and where the commonwealth and defendant both agree to the release of a par- ticular person, the court may agree.^^ Those who are exempt from jury duty, who have been summoned, will also be relieved. If the juror fails to appear when summoned and not excused, he is subject to a penalty."* "The prothonotaries and clerks of the several courts aforesaid shall respectively certify to the sheriff and commissioners of the re- spective county, at the end of each term or session of the respective courts, the names of the jurors who shall have appeared and served , at such court, also the names of those who shall have made default or were excused from serving as jurors at that term, and also the names of those who were privileged or exempted from serving on juries."^* "The name of every person selected, drawn, summoned, and making default as aforesaid, also the name of every person who shall be excused from serving, shall be returned by the sheriff and commissioners to the wheel from which it was taken, at the time of the next drawing from the said wheel for any of the courts of such ^'Alexander v. Com. 105 Pa. I. "^ Piper's Case, 2 Browne (Pa.) 59. "See Former Jeopardy, chapter xv., '^Goodwin v. White, 1 Browne (Pa.) § 347, ante. 272. "Com. V. Fritch, 9 Pa. Co. Ct. 164. '^ Com. v. FritcTi, 9 Pa. Co. Ct. 164. "» Com. V. Fritch, 9 Pa. Co. Ct. 164. ^ Act April 14, 1834, P. L. 333, § 134. "Jewell V. Com. 22 Pa. 94. =* Act April 14, 1834, P. L. 333, § 128. 394 CRIMINAL AND PENAL PROCEDURE. [chap. xix. county ; Provided, Such person is resident within the respective coun- ty, and competent and liable to perform the duties of a juror."*' For Philadelphia county the following provisions have been made : "No one summoned as a juror shall be excused from service, except in open court, on good cause shown to the satisfaction of the court ; and if any juror so summoned and not excused shall fail to attend the said court until duly discharged, he shall be fined, for the use of the said city, not less than i$30 nor more than $200, to be recovered by attachment, or such other appropriate process as the said court may direct."** 436. Challenges to the array. — Challenges to the array may be made for irregularities in the selection, summoning, and return of jurors, as has been noticed in the preceding sections.*'' 437. Peremptory challenges under act of 1860. — The legislation upon the right to peremptory challenge in Pennsylvania was sum- marized and modified by the Criminal Code of I860.** By the act of 1860, it was provided : "On the trial of any indict- ment for treason, or misprision of treason, murder, manslaughter, ooncealing the death of a bastard child, rape, robbery, burglary, sodomy, malicious maiming, and arson, the accused shall be at lib- erty to challenge peremptorily twenty of the jurors, and on the trial of all other indictments the accused shall be at liberty to challenge peremptorily four of the jurors."** "The commonwealth shall have the right in all cases to challenge peremptorily four persons, and every peremptory challenge beyond the number allowed by law in any of the said cases shall be entirely void, and the trial of such per- son shall proceed as if no such challenge had been made."^" These provisions were held not to violate the constitutional provisions that trial by jury should remain as heretofore.*'*^ "All challenges in criminal proceedings shall be conducted as follows, to wit : The com- monwealth shall challenge one person, and then the defendant shall challenge one person, and so alternately until all the challenges shall be made; but if the com.monwealth shall refuse to make any chal- lenge, the defendant shall nevertheless have the right to diallenge the full number allowed him by law."^* The 38th section above stated "Act April 14, 1834, P. L. 333, § 135. v. Hand, 3 Phila. 403, 16 Phila. Leg. =' Act April 20, 1858, P. L. 354, § 6. Int. 157, and Shuster v. Com. 38 Pa. 206. "' See chapter xviil., amte. "Act March 31, 1860, P. L. 427, § 36. Tor decisions construing the act of »°Act March 31, 1860. p. L. 427, § 37. 33 Edw. I., see Com. v. Addis, 1 Browne " Bartmell v. Com. 40 Pa. 462 ; War- (Pa.) 285; Com. v. Eardy, and Com. ren v. Com. 37 Pa. 45; Zell v. Com. 94 V. M'Oee, 1 Browne (Pa.) 285, note. For Pa. 258. rulings under the act of 1834, see Com. '"Act March 31, 1860, P. L.'427, § 38. § 438] JURIES. 395 provided for alternate challenging. This is proper where all tlie jury are in the box at one time as in civil oases and in misdemeanors, but is not applicable to capital cases f^ or where the case is not capi- tal, where the box is not fuU.^* In misdemeanors, however, where the box is filled, the challenge must be alternate, and passing by either side of the right is a waiver.^^ Under this act where both a felony and an attempt to commit were charged in one bill, the defendant was entitled to the same number of challenges as if the bill had been for the more serious offense alone.^® A misdescription of a juror's occupation is no ground for granting a new trial, if the defendant made no effort to ascertain what the correct occupation was, and no injury to him, in consequence of the misdescription, appears f and though it is error to allow more per- emptory challenges than permitted by law, yet if it is done, and no objection is made thereto, the objection will be considered to be waived.** 4C8. Peremptory challenges under act of 1901. — By the act of March (5, 1901,'" the right to stand aside jurors was taken away and the number of peremptory challenges allowed in various cases was allowed. This act was amended later in the same session: "That from and after the passage of this act it shall be unlawful for any district attorney of any county in this commonwealth, in impaneling any jury for the trial in any court of any indictment charging a felony or a misdemeanor, to stand aside jurors, but in every such case the commonwealth and the defendant shall, in addition to the challenges for cause now allowed, be entitled to peremptory challenges as follows : In all trials for misdemeanors except for perjury, forg- ery, and misdemeanors triable exclusively in the courts of oyer and terminer and general jail delivery, the commonwealth and the de- fendant shall each be entitled to six peremptory challenges; in the trial of felonies, other than those triable exclusively in the courts of oyer and terminer and general jail delivery, and in the trial of per- sons charged with perjury and forgery, the commonwealth and the defendant shall each bo entitled to eight peremptory challenges ; and in the trial of misdemeanors and felonies triable exclusively in the " Hartzell v. Com. 40 Pa. 462. " Com. v. Morton, 1 Kulp, 276. " Com. V. Beid, 8 Phila. 385. " Com. v. Cutaiar, 5 Pa. Dist. R. 403. '^Com. V. FranAer, 2 Brewst. (Pa.) "Funk v. Ely, 45 Pa. 444. 490. "P. L. 16. 896 CRIMIISTAL AND PENAL PROCEDURE. [chap. xix. courts of oyer and terminer and general jail delivery, the common- wealth and the defendant shall each be entitled to twenty peremptory challenges; all of which challenges shall be made and assigned by the commonwealth and the defendant respectively when the juror is called : Provided, That in cases not triable exclusively in the courts of oyer and terminer and general jail delivery, the court in which a case is called for trial may, by a general rule, fix a different man- ner and time for exercising said peremptory challenges in the process of impaneling a jury."''" 439. Challenges for cause. — At common law such challenges were divided into two classes, — those for principal cause and those to the favor. The former was founded upon such a state of facts as au- thorized a presumption of the existence of such a bias, prejudice, or incompetency as absolutely to disqualify the person to act as an im- partial juror in the particular case. The latter was proper when the matter shown did not demonstrate in itself inability to act, but merely raised a suspicion thereof, and left it as a matter of fact to be determined from evidence heard. The distinction is practically abolished, except in some states, as to the mode of trying them, a prin- cipal challenge being considered matter for the court, the challenge to the favor being determined by triers.*^ In Pennsylvania the court ahvays determines.*^ Matters which amount to cause for principal challenge may be ground for new trial when not sustained, whereas facts constituting cause to the favor would not** The challenge may be entered by either the commonwealth or the defendant.** And in capital cases at any time until the juror is sworn, unless it be shown that he was first passed out of mere ca- price.*'' There must be an actual challenging of the juror for cause alleged.*® Grand jurors may be challenged for cause, as well as petit jurors,*'^ provided the application be made at the proper time.*" Where the objection was known or might have been laiown by the exercise of reasonable diligence, and might have been interposed by "Act July 9, 1901, P. L. 629. " McFadden v. Com. 23 Pa. 12, 62 "12 Enc. PI. & Pr. p. 429. Am. Dec. 308; Sarteell v. Com. 40 Pa. «Act March 31, 1860, P. L. 427, § 462; Zell v. Com. 94 Pa. 258. 39. " Com. V. Ward, 2 Legal Opinion, 22. "Com. V. Flanagan, 7 Watts & S. "' Com. v. CJarfc, 2 Browne (Pa.) 323. 41.5. For challenge to the favor to a "Holland v. Com. 82 Pa. 306, 22 Am. grand juror which was submitted to T!cp. 758; Com. v. Craig, 19 Pa. Super, triors, hqv. Com. v. Clark, 2 Browne Ct. 81 ; Com. v. Ward, 2 Legal Opin- (Pa.) 323. ion, 22; Re Plymouth, 167 Pa. 012, 31 " Jeivell V. Com. 22 Pa. 94. Atl. 933. §§ 440, 441] JURIES. 397 challenge before acting upon the bill by tlie grand jury, a refusal to quash for the same cause is not reversible error.** 440. Determination of challenge for cause. — "When a challenge for a cause assigned shall be made in any criminal proceeding, the truth of such cause shall be inquired of and determined by the court.""" For the use of triers prior to this act to determine the question of cause, see the following cases.^^ 441. Examination on voir dire. — To determine the question as to whether or not the challenge for cause is well taken, the proposed juror should be examined on his voir dire. Before his examination he should be sworn, and it is the right of the defendant to demand that he shall be, but if no objection is made to proceeding without qualification, it is too late after trial to object."^ The court has the right to examine, and sometimes it is its duty to do so.^* If the commonwealth challenge for cause it examines in chief and the defendant has the right to cross-examine. But if the challenge for cause be witlidrawn by it, and the defendant then enters a simi- lar one, he must examine in chief, the commonwealth having in such case the power to cross-examine.^* The purpose of the testimony is to elicit such information as would be a proper test of qualifica- tions.^^ The inquiries must tend to show that ground for challenge for cause exists. Thus, it is not proper to ask if any impression has been formed as to the guilt or innocence, since only a fixed opinion would disqualify.'"'* Or if the juror states that an opinion has been formed, to ask what it is.'^ So, it is improper to inquire what effect the neglect or refusal of the prisoner to testify would hnvef^ or what the juror thought of the defense of insanity;^® or what effect the proof of immoral relations between the deceased and the prisoner would have."" In a challenge to the polls of grand jurors, the defendant does not " Com. V. Croisr, 19 Pa. Super. Ct. 81 ; " Com. v. Bergcr, 3 Brcwst. (Pa.) BolUmd V. Com. 82 Pa. 306, 22 Am. 247. Hep. 758. ™ O'Mara v. Com. 75 Pa. 424. "Act March 31, 1860, P. L. 427, § 39. " Traviss v. Com. 106 Pa. 597. '^Com. V. Gross, 1 Ashm. (Pa.) 281; "Com. v. Ecmlon, 3 Biewst. (Pa.) Com. V. Fitzpatrick, 3 Clark (Pa.) 461; Com. v. yan fform. 188 Pa. 143, 41 520; Com. V. Clark, 2 Browne (Pa.) Atl. 469; ffoJi v. Com. 22 W. N. C. 25. 323 ; Respiiblica v. Dermie, 4 Yeates, ■* Com. v. Wirebaek, 190 Pa. 138, 42 267, 2 Am. Dee. 402. Atl. 542. '' Com. V. Ware, 137 Pa. 465, 20 Atl. "» Hall v. Com. 22 W. N. C. 25. 806; Zell v. Com. 94 Pa. 258. '"' Com. v. Van Born, 188 Pa. 143, 41 " Clark V. Com. 123 Pa. 555, 16 Atl. Atl. 469. See also subsequent cases on 795. Asked as to his opinion. grounds for disqualifications. 398 CRIMINAL AND PENAL PEOCEDURE. [chap. xix. have the right to examine the jurors on their voir dire as to the al- leged cause of challenge, but may establish it by evidence aliunde.^^ 442. Opinions. — The decision upon the disqualification of the pro- posed juror by reason of opinions formed as to the guilt or innocence of the defendant are numerous and depend largely upon the particu- lar answers made in the respective cases. The disposition of a chal- lenge for such cause depends on the finding of a fact, and in passing upon such finding the appellate court considers the answers of the juror as a whole, and attaches great weight to the finding of the trial court, since the examination is in the presence and under the super- vision of the court below, and it therefore has better opportunity to discover the nature and character of the opinion held by the juror, than is afforded the higher court on review. "I^othing short of pal- pable error in it will justify a reversal."®^ "^^Tienever, therefore, the opinion of the juror has been formed upon the evidence given in the trial at a former time, or has been so deliberately entertained that it has become a fixed belief of the prisoner's guilt, it would be wrong to receive him. In such a case, the bias must be too strong to be easily shaken off, and the prisoner ought not to be subjected to the chance of conviction it necessarily begets. But where the opinions or impressions of the juror are founded on rumor, or reports, or even newspaper statements, which the juror feels conscious he can dismiss; where he has no fixed be- lief or prejudice and is able to say he can fairly try the prisoner on the evidence, freed from the inflaence of such opinions or impres- sions, — he ought not to be excluded."®^ Following this ruling it has been frequently held that if it appears upon the examination on voir dire that the juror has the ability and disposition to render a verdict on the evidence alone, the law adjudges him competent, although it would require evidence to change the im- pression or opinion formed about the afi'air under investigation.** Or if the juror testifies, when asked if he could render a verdict impar- "^ Brown v. Com.^ 76 Pa. 319. In Curley v. Com. 84 Pa. 151; Traviss v. Com. V. Craig, 19 Pa. Super. Ct. 81, the Com. 106 Pa. 597; O'Mara v. Com. 75 grand juror was examined by the court Pa. 424; Rizzolo v. Com. 126 Pa. 54, 17 below. Atl. 520; Com. v. McMillan, 144 Pa. "'Com. V. Church, 17 Pa. Super. Ct. 610, 22 Atl. 1029; Hall v. Com. 22 W. 39. N. C. 25; Com. v. Morrow, 9 Phila. 583, "Agnew, J., in Staup v. Com. 74 Pa. 29 Phila. Leg. Int. 380; Com. v. Work, 458. 3 Pittsb. 493; Com. v. Bencher, 10 Pa. "Com. V. Crossmire, 156 Pa. 304, 27 Co. Ct. 3, 48 Phila. Leg. Int. 220; Com. Atl. 40; Com. V. LenocD, 3 Brewst. (Pa.) v. Moss, 6 Kulp, SI; Ex parte Spies, 35 249; Com. v. Van Bom, 188 Pa. 143, 41 Pittsb. L. J. 215; Com. v. Ivory, 10 Pa. AtL 469; Myera v. Com. 79 Pa. 308; Diat. R. 277, 7 Lack. Legal News, 148. § 442] JURIES. 899 tially on the evidence, that he thinks he could, it is within the discre- tion of the trial judge to overrule the challenge to the juror for cause.®^ An exception is made of an opinion from hearing or reading the evidence of both sides on a former trial, for such knowledge excludes the idea of impartiality.®** But if the proposed juror has heard but a part of the evidence as a spectator at the former trial, he will not be necessarily disqualified ;*'' or an opinion based on the evidence taken before a coroner, which has been read, does not have the same weight;®* or if based upon the evidence at any preliminary examin- ation.®' And the opinion based on the newspaper accounts of the preliminary hearing, or fragments of the testimony at the trial of a codef endant, will not necessarily disqualify f'^ or based on what ap- peared in the newspapers about the case.'^^ The juror, however, is not to be the final judge of his own frame of mind. It must appear judicially from the attending conditions that the juror "stands indifferent" between the commonwealth and the prisoner, and can reach a conclusion uninfluenced by a precon- ceived opinion. Thus, where he had read the evidence of a pre- vious trial, and stated he would not be influenced, the court held him incompetent. He could not be permitted to purge himself of his bias by declaring that if sworn as a juror he would not be influenced by it.''^ "Where it clearly appears that a juror has formed a fixed opinion as to the prisoner's guilt, he should not be permitted to say that he can act impartially. He may honestly think so, but the pris- oner should not be subjected to such a risk. Jurors are but men, . . . and may be affected by a previously formed fijced opinion without intending, or even knowing it. Besides, few jurors are willing to ac- knowledge publicly that they cannot act impartially. The law wisely delivers the accused from such a peril."'^* So, one who is part owner of a newspaper and has supervised the publication of editorials de- nouncing the defendant as guilty should not be allowed to say that he would not be influenced.'^* And the court may without challenge "Com. V. Eagan, 190 Pa. 10, 42 Atl. "Weston v. Com. Ill Pa. 251, 2 Atl. 374. 191; Com. v. Taylor, 129 Pa. 534, 18 " Staup V. Com. 74 Pa. 458 j Allison Atl. 558. V. Com. 99 Pa. 17; Ortwein v. Com. 76 ^^ Com. v. McMillan, 144 Pa. 610, Pa. 414, 18 Am. Rep. 420. 22 Atl. 1029; Rizzolo v. Com. 126 Pa. "' Com. V. Roddy, 184 Pa. 274, 39 Atl. 54, 17 Atl. 520; Hall v. Com. 22 W. N. 211. C. 25. " Allison V. Com. 99 Pa. 17 ; Ortwein " Staup v. Com. 74 Pa. 458. V. Com. 76 Pa. 414, 18 Am. Rep. 420; ^Allison v. Com. 99 Pa. 17. Myers V. Com. 79 Pa. 308. " Com. v. Bouse, 3 Pa. Super. Ct. 304. "Allison \. Com. 99 Pa. 17. 400 CRIMINAL AKD PENAL PROCEDURE. [chap. xix. summtirily dismiss a proposed juror who kas signed a petition stating that he is fully informed of the evidence, and asking the court to accept a plea of guilty of murder in the second degree.''^ The juror who lias served on a trial for riot against defendant and others is not necessarily disqualified from serving on a trial of the same defendant for murder committed during the riot, when he has formed no opinion as to the guilt or innocence of the defendant cliarged."^ ]^or is it ground for challenge in itself that the juror im- paneled lor the trial of an accessory had served as such on the trial of a previous indictment against the same defendants, who were jointly indicted with him as principals, but involving a different state of facts." If the juror does have a fixed opinion, he should, of course, be ex- cluded;'^* or if he has a fixed opinion that no one of sound mind would commit such a crime. ^^ Though an expression of opinion found to be fixed will be ground for challenging the juror for cause, if he does serve on the trial of the case, a new trial will not be granted unless it affirmatively appear that the juror has prejudged the case, and his mind was not open to conviction.*" Nor will mere expression of opinion as to the probable outcome of the case be sufficient.*^ If, however, it appears by satis- factory evidence that an opinion was formed and the case prejudged, which facts have been denied by the juror in his examination on voir dire, a new trial will be granted;*^ but if not clear, and if de- nied by the juror, it will be refused.** And it must appear that such knowledge did not come into the possession of the defense until sub- sequently.** The finding of the lower court in such case after inves- tigation will not be reversed in the absence of clear abuse of discre- tion.*^ 443. Conscientious scruples. — It is good cause for challenge to the "Com. V. Cleary, 148 Pa. 26, 23 Atl. Moss, 6 Kulp, 31; Com. v. Maltzherry, 1110. 3 Lane. Bar, No. 31. ™ Com. V. Toth, 145 Pa. 308, 22 Atl. " Com. v. Hurd, 177 Pa. 481, 35 Atl. 157. 682; Com. v. Sallager, S Clark (Pa.) 127. "Bmc7c v. Com. 107 Pa. 486. '''Com. v. Bruner, 11 Pa. Co. Ct. 428, ■" Com. V. Sherry, Wharton, Homicide, J, ^^- ^'^*- ^- ^^^' 22 Pittsb. L. J. N. 481 Rogers J '»'(7om. v.' 6uccieri, 153 Pa. 535, 26 '' ^T' ""■ ^2' ^^t^^'Jl^ ^? .i^}' 4^1 ooa '257; Com. v. Siarr, 36 Pittsb. L. J. 334; -Com. V. Flanagan, 7 Watts & S. £o"- v^/^W*, 16 Phila. 469, 40 Phila. 415; Com. v. Cutamr, 5 Pa Dist R ^^McClain v. Com. 110 Pa. 263, 1 Atl. 403; Com. v. Morrow, 9 Phila. 583, 29 45 Phila. Leg. Int. 380; Com. v. Work, 3 '"Com. v. Heidler, 191 Pa. 375, 43 Piltsb. 493; Com. v. Beucher, 10 Pa. Co. Atl. 211 ; McClam v. Com. 110 Pa. 263, Ct. 3, 48 Phila. Leg. Int. 220; Com. v. 1 Atl. 46. §§ 444-446] JURIES 401 juror, if he declares on his voir dire that he has conscientious scru- ples on the subject of capital punishment, and that he would not, be- cause he conscientiously could not, consent or agree to a verdict of murder in the first degree, death being the punishment, though the evidence required it.^*"' But the defendant cannot complain if the commonwealth does not challenge for this cause, and has no right to object to the juror himself for this reason.*'^ Though this is ground for challenge, yet the juror cannot decline to serve for this reason of his own motion, where no objection is made, and if he does so may be punished by the court for his contumacy. Such action by the trial court is not ground for a new trial after verdict of guilty.®* 444. Scruples against circumstantial evidence. — "The commonwealth should not be required to accept any juror who swears that he could not convict on circumstantial evidence, if it appears that this view is honestly and conscientiously entertained by the juror."*" 445. Scruples against insanity. — As has been noticed, it is not proper to ask the proposed juror on his voir dire whether he has any opinion, or prejudice, against the prisoner's plea of insanity.®" A mere prejudice against this defense is not ground for challenge.®^ But a proposed juror may be excluded when he has a fixed opinion that no one of sound mind would have committed the erime.®^ 446. Interest or relationship. — Undue intimacy of the juror with one of the parties, evidenced by conversation or the exchange of drinks and cigars, is ground for challenge for cause;®* or the fact that the proposed juror has been summoned as a witness by the pris- oner f* or is a stoclcholder in a bank whose property has been taken f^ or is a member of a society interested in the case at bar.®® But the mere fact that the juror has knowledge of the facts of the case is no ground for challenge."^ Xor will a new trial be granted because relations of the juror are called as witnesses.®* Even where the in- " Com. V. Lesher, 17 Serg. & R. 155 ; »' Com. v. Buccieri, 153 Pa. 535, 2i5 Com. V. Valsalka, 181 Pa. 17, 37 Atl. Atl. 228. 405 ; Com. v. Sherry, Wharton, Homi- "' Com. v. Hosier, 135 Pa. 221, 19 Atl. cide, 481, Rogers, J. 943. "12 Ene. PI. and Pr. 434; Com. v. "Com. v. Jolliffe, 7 Watts, 585. Fry, 198 Pa. 379, 48 Atl. 257, 1st as- " Rolland v. Com. 82 Pa. 306, 22 signment of error. Am. Rep. 758. ''Com. V. Gross, 1 Ashm. (Pa.) 281, " Respublioa v. Richards, 1 Yeates, 287. 480. In Com. v. Craig, 19 Pa. Super. " Com. V. Heist, 14 Pa. Co. Ct. 239, Ct. 81, a similar objection was taken. Challenge for cause sustained. but the right to challenge for such °° Com. V. Van Horn, 188 Pa. 143, 41 cause is not determined, as it was not Atl. 469; Com. v. Earner, 199 Pa. 335, entered in time. 49 Atl. 60. »' Com. v. Reler, 10 Pa. Dist. R. 683. " Hall V. Com. 22 W. N. C. 25. " Com. v. Reber, 10 Pa. Dist. R. 683. Pa. Grim. Proc— 26. 402 CRIMINAL AND PENAL PROCEDURE. [chap, xk. terest is such as to disqualify, the defense must call it to the atten- tion of the court as soon as discovered, and not delay until an ad- verse verdict has been returned."* If relationship of the proposed juror to the parties in interest be shown, a challenge for cause may be successfully entered. But it is not ground for new trial, that a juror who serves upon the trial of a case is a second cousin of the deceased, when no challenge was made before the impaneling of the jury, and it is not alleged that the defendant was misled or deceived by the opposite party, particularly when the juror was not aware of the relationship.^"" 447. Serving two successive years. — The statutory provision of the act of 1834, directing that a citizen shall not sen'e as a juror for two successive years was meant for his protection only. It is not ground for a new trial that the juror so serving did act in the pre- ceding year.^"-^'^ 448. Illiteracy. — If the juror does not understand the English lan- guage, and is so illiterate that he cannot give an intelligent ver- dict, it will be ground for challenge, or even for new trial, if not known before. •''''' But it is not enough to show ignorance in not knowing his age, or that he could read but little. It must appear that he was unable to act intelligently.-' "* And a new trial will be re- fused on such ground where the juror was a German and could not understand without interpretation, when it does not appear that evi- dence was not made intelligible to him, such an allegation being sup- ported by mere affidavit without any proof. •'"^ And it will be refused where the juror himself swears that he did understand the evidence and the charge of the court.-"'® 449. Insanity. — An insane juror should not be allowed to serve, but a new trial will not be granted merely because it appears that sickness some months before was accompanied by some mental disor- der, when there was nothing in his examination on voir dire, either in manner or replies, to indicate insanity.-'"''' 450. Nonresidence.— The act of 1867 requires the selection of ju- rors from the qualified electors of the respective county. A new trial will not be granted where it appears that the residence of the juror was within the county when selected, but he subsequently removed "Com. V. Reber, 10 Pa. Dist. R. (Pa.) 378. 683. '« Com. V. Hughes, XI Phila. 430, 33 ^"Travias v. Com. 106 Pa. 597. Phila. Leg. Int. 44. ""-" Com. V. Laird, 14 York Legal Rec- "' Com. v. Stokes, 4 York Legal Rpr ord, 128. ord, 187. "' Com. V. Jones, 4 W. N. C. 13. '" Com. v. Morrow, 9 Phila. 583, Zt "* Com. V. Winnemore, 2 Brewst. Phila. Leg. Int. 380. §§ 451-455J JURIES. 403 for two months to another state, to determine Avhether he would locate there, and then returned.^"* 451. Alienage. — It is groimd for challenge for cause that the de- fendant is an unnaturalized foreigner; but the objection must be taken before he is sworn.-"** 452. Taxpayers. — "Xo person shall be excluded from being a juror in any suit, prosecution, or proceeding in which any county, city, in- corporated district, borough, or township, is a party or is interested, by reason of such person being or having been an officer, rated cit- izen, or inhabitant in such county, city, district, borough, or town- ship, or owning assessed or taxable property, or being liable to the assessment or payment of any tax therein."^ ^^ Nor in any penal action where his tax would be diminished by a reoovery.^^^ 453. Religious belief. — One whose examination shows a lack of re- ligious belief may be challenged for cause. Thus, when the juror stated that he was a Tom Paine man and would as leave swear on the spelling book as the Bible, he was properly refused. ■'^^ 454. Proof of incompetency. — As has already been noticed, jurors may be sworn and examined on their voir dire to determine their competency. The groimd for challenge for cause may be established by other witnesses, and it is no error that the proposed juror himself is not questioned, if he does not demand it,^^* but incompetency can- not be shown by ex parte affidavits.''^* 455. Waiver of right to challenge. — Challenges for cause must be entered at the proper time. In the case of grand jurors, it is too late after a bill is found imless it be made to appear to the court that the defect was not known at the time, or could not have been known by the exercise of reasonable diligence.-'^® And a mere affidavit of the defendant that he was not aware of the disqualification is not suffi- cient."" The same rule applies in the case of the petit jury. If the right is not exercised before the juror is sworn, it is waived. This waiver may be relieved against when the party affected has been intentionally misled, or deceived, by the juror, or the opposite party.^^'' Where "» Com. V. Stokes, 4 York Legal Rec- Am. Dec. 308. ord, 187. ^*Oom. v. Hughes, 11 Phila. 430, 33 ™ Com. V. Thompson, 4 Phila. 215, 17 Phila. Leg. Int. 44. Phila. Leg. Int. 309. "" Rolland v. Com. 82 Pa. 306, 22 Am. "» Act April 16, 1840, P. L. 410, § 6. Rep. 758. "• Act April 14, 1834, P. L. 333, § 151. "« Com. v. Craig, 19 Pa. Super. Ct ^^McFadden v. Com. 23 Pa. 12, 62 81. Am. Dec. 308. "' Traviss v. Com. 106 Pa. 597 ; Com. "» McFadden v. Com. 23 Pa. 12, 62 v. Stokes, 4 York Legal Record, 187. 401 CRIMINAL AND PENAL PROCEDXIRE. [chap. xix. objection is not taken before swearing, it must always appear that the defendant was ignorant of the alleged disqualifications at the time the jury was impaneled.^^* And it has been held insufficient ground for a new trial, where affidavits are made that the ground of chal- lenge for cause — aliesnage — ^was not known until after trial, when it could have been learned when the juror was called to the book,^^® or, under similar circumstances, where the occupation of the juror was incorrectly stated.^ ^^ If the ground of disqualification be learned during the course of the trial, it must be called immediately to the attention of the court.-'^^ 456. Effect of refusal. — If a challenge for cause by the common- wealth be sustained the defendant is not injured, even if not well grounded, since he has no right to have any particular juror sworn.^^^ If, however, the challenge for cause be overruled, so that the defend- ant is compelled to use a peremptory challenge to prevent the seat- ing of the juror, or if he is sworn, the appellate court vtIU reverse. But the overruling of a challenge traversed by the commonwealth will not be cause for reversal, where no evidence in support of the mo- tion appears in the bill of exceptions. The appellate court will pre- sume that sufficient ground existed for refusing it.-*^^ Where a chal- lenge for bias is disallowed, and the defendant challenges peremptor- ily, no injury is done to defendant if he still have other peremptory challenges.-''* 457. Standing aside jurors. — The numerous cases dealing with the standing aside of jurors have been rendered obsolete by the passage of the act of March 6, 1901,^25 amended by act of July 9, 1901,^26 which takes away from the commonwealth this right. 458. Separation of jury in capital cases. — Jurors must be kept to- gether during the trial of a capital case, from the time they are im- paneled until their discharge after verdict rendered. iJfot even the consent of the defendant to their separation before will validate it.-'*'^ Such separation as is necessary for the proper performance of the duties of juror may be allowed, where the juror is put in the care '" Com. V. Btolces, 4 York Legal Ree- '=' Brown v. Com. 76 Pa. 319. ord, 187. "*Com. v. Fry, 198 Pa. 379, 48 Atl. "°Com. V. Thompson, 4 Phila. 215, 17 257; Ex parte Spies, 35 Pittsb. L. J. Phila. Leg. Int. 309. 215; Sayres v. Com. 88 Pa. 291. ^'^ Com. V. Cutaiar, 5 Pa. Diat. R. "» P. L. 16. 403. "»P. L. G29. "* Com. V. Reler, 10 Pa. Diat. R. 683. "' Pei-ffer v. Com. 15 Pa. 468, 53 Am. "' Com. V. Hosier, 135 Pa. 221, 19 Atl. Die. 605. 943. § 459] JURIES. 405 of a sworn officer, but even this may raise a presumption of improp- er influence, though rebuttable by dear and satisfactory evidence on the part of the commonwealth.-'^* A separation caused by a juror walking upon the balcony of a hotel where no conversation took place with outsiders will not furnish ground for a new trial ;^^® or where there is a temporary separation, the juror being accompanied by an officer, and no conversation takes place ;^*'' or where two jurors, pre- ceded by the officer, were separated from the balance of the jury, upon the stairs, while leaving court, by the sheriff and spectators, where no conversation took place ;^^^ or where the jury slept in two adjoining, but unconnected rooms, the officers staying in a third which opened into one of the former, it appearing the doors were locked and tKat there was no outside communication;^''^ or where five of the jurors went to church in the care of a sworn officer ;^^^ or where one of the jurors attended a funeral of a relation, in care of an officer under the direction of the court, no conversation having occurred ;^^* or where one of the jurors was allowed by the officer to separate from the re- maining, to speak to his wife, nothing having been said concerning the case.^^' If the indictment charged murder, on the conviction for merely manslaughter, the rules applying to the separation of jurors in non- capital eases will control the court, where a new trial is asked for on such ground.-'''® Though the trial be a capital one, the jury may sep- arate when not sworn to try the guilt or innocence of the defend- ant, but are merely considering a preliminary issue, such as the plea in abatement for misnomer.^ ^^ 459. Separation of jury in noncapital cases. — "The strictness of the early English rule in excluding jurors from all outside intercourse in cases not capital is very much relaxed in this country. . . In such a case jurors may ... be permitted to separate after being duly cautioned, without the creation of any legal presumption that undue influence thereby operated on their minds. "^^* After the ^ Moss V. Com. 107 Pa. 267; Com. v. "'Alexander v. Com. 105 Pa. 1. Eisenhower, 181 Pa. 470, 37 Atl. 521 ; "* Moss v. Com. 107 Pa. 267. Goersen v. Com. 106 Pa. 477, 51 Am. "° Com. v. Thompson, 4 Phila. 215, 17 Rep. 534; Com. v. Johnson, 5 Pa. Co. Phila. Leg. Int. 309. Ct. 236. "'Moss V. Com. 107 Pa. 267. "" Com. V. Painton, 5 York Legal Rec- "''Alexander v. Com. 105 Pa. 1. ord, 140. ^^Moss v. Com. 107 Pa. 267; Hilands "'Com. V. Britton, 3 Legal Gaz. 26, v. Com. Ill Pa. 1, 56 Am. Rep. 235, 2 Legral Gaz. Rep. 513. Atl. 70. See Com. v. Hoofnagle, 1 "^Gom. V. Cressinger, 193 Pa. 326, 44 Browne (Pa.) 201, note. Atl. 433. "''Com. V. Manfredi, 162 Pa. 144, 29 Atl. 404. 406 CRIMINAL AND PENAL PROCEDURE. [chap. xrx. case is given in charge of the jury, no separation is allowed until the verdict is agreed upon; but where two jurors, through ignorance, after the charge of the court, separated from their fellows, and were absent for an hour and were then brought back, it was held that a new trial after verdict of guilty would not be granted, it appearing that no conversation had been held by them concerning the case.-'*^ If the jury separate without the consent of the court, after being charged and before they have agreed upon their verdict, a new trial will not be gxanted, unless it appear that there was improper influence ex- erted in the meantime.* *** A like determination was reached where separation took place after the verdict was sealed with the court's per- mission.*** 460. Misconduct of jury. — A bill of indictment will be quashed, where it appears that the prosecutor dranli with a juror the evening the bill was found.**^ Conversation by a juror during a recess of court, in which he recounts the evidence to others, in the nature of gossip, will not be ground for a new trial,*** as it was not when he ex- pressed his opinion as to defendant's guilt after the testimony of the commonwealth had all been offered and a part of the prisoner's, it not being shown that he was influenced by this declaration to disre- gard the balance of the testimony of the prisoner, though such is gross misconduct.*** The refusal by the court in its discretion of a new trial because of a conversation held in the presence of a juror will not be reversed in the absence of evidence of abuse.* *^ What is done for the comfort and convenience of jurors temporari- ly indisposed rests in the discretion of the court and is not reversible. Thus, thflit a physician was summoned by order of the court and treated a juror in the presence of the court, or of an officer, is not ground for a new trial.*** Even when the physician treats the juror without direction or order of the court, in a case of necessity, where the court officer is preseait and no conversation as to the case takes place, it is no error.**'' There is nothing forbidding the use of in- '™ Com. V. Clemmer, 2 Pa. Co. Ct. 629. '" Com. v. Cosier, 5 Northampton Co "" Com. V. Morgan, 3 Pa. Co. Ct. 151. Rep. 74, 8 Kulp, 97. Here the jury during the night agreed »« Com. v. Burd, 177 Pa. 481, 35 AO. upon a verdict, which was sealed, and 682. then separated. In the morning they '"Com. v.Sallager,S Clark (Pa.) 127. returned it to court. Their finding was '« Com. v. Hazlett, 16 Pa. Super. Ct. that they had agreed to disagree. After 534. reprimand, the court sent them back to "" Com. v. Morrison, 193 Pa. 613, 44 the jury room for reconsideration and Atl. 913. Also held no error because a verdict of guilty was returned. the juror was compelled to hear part of '" Com. V. Heller, 5 Phila. 123, 19 the case while lying on a cot. Phila. Leg. Int. 133; Com. v. Boyle, 9 ^" Goersen v. Com. 106 Pa. 477, 5] Phila. 592, 29 Phila. Leg. Int. 85. Am. Rep. 534. § 461] JURIES. 407 toxicating liquors;^*" but if there has been any undue use, the con- duct of the juror should be closely scrutinized, and if it appears that he was intoxicated to any degree, a new trial should be granted. It is the better practice to forbid the use of such in the jury room, ex- cept on the order of the court for cause shown.^*® It is not ground for new trial that five of the jury attended church and heard a sermon on "Thou shalt not kill," in which courts and juries were urged to do their duty, the court finding that, as a whole, there was nothing said to bias or prejudice their minds. The exercise of this discretion is not reviewable.^^" The court will not order a new trial to be granted because a juror was asleep, where the judge is able to say that it was for a single instant "/^^ or where a barber was admitted to shave the jury without order of the court, it being proved that nothing was said concerning the trial. ■'^^ Isor will a new trial be granted be- cause a juror wrote a note to his wife after being sworn saying that he would not come home.^^* And misconduct of these sorts is not shown by proving that outsiders knew how the jury stood.^^* If it be made to appear that matters were considered, which were not offered in evidence, a new trial will be granted. Thus, where newspapers were read which referred to previous misdeeds of the de- fendant ;^^° or discrediting material witnesses;*®® or stating that few believed defendant innocent;*^'' but where the article contains noth- ing prejudicial,*®* a new trial will not be granted. Where the op- portunity to examine existed, the court will presume the articles were read.*®' There must be a new trial also, when a juror tells his fel- lows facts which negative the alibi proved ;*®° or that defendant was guilty of a like offense some years before.*"* 461. How misconduct proved. — There is conflict of authority as to the testimony competent to prove such misconduct. The general principle is that a juror cannot impeach his own verdict ;**^ or say that he did not intend to find as he did.**^ It has been held that the •" Com. V. Salyards, 158 Pa. 501, 27 "' Com. v. Jacques, 1 Pa. Dist. R. 287. Atl. 093. See Com. v. Dimey, 36 Pittab. "" Com. v. Johnson, 5 Pa. Co. Ct. 236. L. J. 335. "* Com. v. Haines, 15 Phila. 363, 38 »° Com. V. Cleary, 148 Pa. 26, 23 Atl. Phila. Leg. Int. 94. 1110. "" Com. V. Jacques, 1 Pa. Dist. R. 287. ^^ Alexander -v. Com. 105 Pa. 1. ^^ Com. v. Kulp, 5 Pa. Dist. R. 468, "' Com. V. Jongrass, 181 Pa. 172, 37 17 Pa. Co. Ct. 561. Atl. 207. ™ Com. v. Reler, 10 Pa. Dist. R. 683. '™ Com. V. Painton, 5 York Legal Rec- '=' Com. v. Zuern, 24 Pa. Co. Ct. 264, ord, 140. 10 Pa. Dist. R. 26. Thus, could not say "' Com. V. Dimey, 36 Pittsb. L. J. 335. he misunderstood the evidence. See "* Com. V. Mellert, 2 Woodw. Dec. 342. also Ctrand Jury, chapter x., § 200, ante. '" Com. V. La/ndis, 12 Phila. 576, 34 "» Com. v. Adaire, 18 Lane. L. Rev. 42. Phila. Leg. Int. 204. 403 CRIMINAL AND PENAL PROCEDURK. [chap. xix. juror is incoinpetent to show the introduction of extraneous evidence on this ground.^** On the other hand, it has heen held admissible.^*® The latter ruling would seem to be in line with Com. v. Green^^^ where the grand juror was allowed to state that, in finding the pre- sentment, evidence other than that of the grand jurors themselves was received. 462. Personation of jurors. — If an entire stranger personate one summoned as a juror, and serve on trial of a case, a new trial will be granted, where not discovered until after verdict ;^*^ or if the person serving be substituted for one properly drawn, a like result will follow.^ *^ And where one answers of the same name and serves, who is not the juror summoned, the latter being actually present, a new trial will be granted.-*®" But where one whose name and occu- pation are the same as those of a person named in the venire, but whose residence is different, is summoned in good faith and serves on the jury, without objection from the defendant, a new trial will not be granted after verdict of guilty.^'^" 463. Intermeddling with jury by party. — As has been noticed, the intermeddling with a juror by a party would be ground to challenge the petit juror ;''''^ or to quash the indictment where such conduct oc- curs with a grand juror. ■''^^ Likewise, it will be ground for a new trial where the prosecutor converses with jurors during recess, though it does not appear what was said,^'^^ or where a witness discusses his testimony.*'^'' But such misconduct or irregularity must be such as might affect their impartiality or disqualify them from the proper exercise of their functions.-''^® The defendant can- not take his chance of a verdict in his favor, and at the same time keep in reserve a motion for a new trial ; therefore, misconduct which was or should have been known to the complainant before verdict, but was not then objected to, is waived, and will not warrant a new trial.i^« ^<"Com. V. Reber, 10 Pa. Dist. R. 683. Rep. 74, 8 Kulp, 97 (and such conduct ™ Com. V. Johnson, 5 Pa. Co. Ct. 236; constitutes contempt of court), Doan'n Com. V. Landis, 12 Phila. 576, 34 Phila. Case, 5 Pa. Dist. R. 211, 17 Pa. Co. Ct. Leg. Int. 204. 521; see same ease 17 Pa. Co. Ct. 518, ™ 126 Pa. 531, 17 Atl. 878. for evidence in such case. '" Com. V. Spring, 5 Clark (Pa.) 238. ™ Com. v. Martin, 16 Pa. Co. Ct. 140; '»» Com. V. Elvin, 5 Pa. Dist. R. 593. Com. v. McBride, 41 Phila. Leg. Int. "' Com. V. Baturin, 24 Pa. Co. Ct. 181, 104. 3 Dauphin Co. Rep. 110. "' Com. v. Stokes, 3 York Legal Rec- "" Com. V. Bencher, 10 Pa. Co. Ct. 3, ord, 220. 48 Phila. Leg. Int. 220. "» Com. v. Thompson, 4 Phila. 215, 1" '" Com. V. Hosier, 135 Pa. 221, 19 Phila. Leg. Int. 309. Atl. 943. "» Com. v. Earle, EarZe's Trial, 178. '" Com. V. Cosier, 5 Northampton Co. §§ 464, 455] JURIES. 409 Though the defendant is entitled to a new trial for misconduct, Avhen first learned subsequent to verdict, the commonwealth has no such right where an acquittal has been obtained by reason of deffcnd- ant's fraud or misconduct. In such ease the court may, however, set aside the verdict imposing costs on the prosecutor.^'''' 464. Polling the jury.— The right of a defendant to poll the jury, which has rendered a verdict of guilty, exists in Pennsylvania. It is doubtful whether this could be done after the verdict is recorded.''''® If the answers of the jurors when polled are in harmony with the general verdict rendered, it is sufficient.^''*"^*'* If the answers are not clear, the court may compel the jurors to be polled again, and such procedure is not erroneous.-'*^ When the jury is polled and a juror desires to explain his answer, he should be given an opportun- ity to do so. "When the court stops the explanation, and it subse- quently appears that the verdiot was rendered by the juror because of physical exhaustion, a new trial -will be ordered.^ ®^ Where on a conviction for murder the record shows the presence of the defendant, it need not appear affirmatively that the defendant was given tlie opportunity to poll the jury. In the absence of evi- dence to show that he was restrained, it will be presumed that he could have exercised this privilege.^*^ 465. View by jury. — On the trial of an indictment for murder, it is not error for the court to send the jury to view the premises where the muredr was committed without sending the prisoner and his counsel with them. K'o constitutional right of the prisoner is im- paired by such action of the court. In some cases the defendant and his counsel have been given leave to attend the view if they so de- sire.-'®* The allowance of the -view is, however, a matter entirely within the discretion of the court.^** "' Gom. V. Pflueger, 10 Pa. Dist. R. was "guilty of murder in the first de- 717. gree." "' Com. V. Twitohell, 1 Brewst. (Pa.) ^^ Com. v. Luiz, 10 Kulp, 231. In the 551 (in which it was held to be too late second trial of this case it was held that after the recording of the verdict) ; the plea of former jeopardy based on Com. V. Krause, 8 Phila. 607 (it was the discharge of the jury was properly held that it could be done even then). overruled. Com. v. Lutz, 200 Pa. 226, iw.ieo po„ v_ Sehmous, 162 Pa. 326, 29 49 Atl. 771. Atl. 644. Here the verdict was guilty "' Taylor v. Com. 44 Pa. 131. of murder in the first degree. In poll- "' Com. v. Van Horn, 188 Pa. 143, 41 ing, each of the jurors answered guilty. Atl. 469; Com. v. Salyards, 158 Pa. 501, This was held suflScient to sustain the 27 Atl. 993. sentence for murder in the first degree. "" Com. v. Miller, 139 Pa. 77, 21 Atl. "^ Com. V. Buccieri, 153 Pa. 535, 26 138. Here on indictment for maintain- Atl. 228. Here some of the answers on ing a public nuisance by the mainte- the first poll were "guilty in the first nance of an oil refinery, it was said by degree." On the next poll the answer the supreme court of the request of the 410 CRIMINAL AND PENAL PROCEDURE. [chap. xix. 466. Trial by less than twelve. — The record must affirmatively show that twelve jurors were lawfully impaneled and sworn to try the defendant. Thus, where a juror was withdrawn after swear- ing because of intoxication, and another substituted without assent or dissent by the prisoner, and the record did not show the name of the new juror or that he was sworn, it was held defective.-'^® The decisions are conflicting as to the power to sustain a conviction where less than twelve jurors act with the consent of the defendant. Thus, where twelve were impaneled and subsequently by consent of coun- sel one was excused because of siclcness, and the trial proceeded with eleven, it was held that the verdict of guilty must be set aside.-'*^ The contrary has been held where one of the jurors was excused in a pros- ecution for false pretenses with the consent of the defendant.-'** Where one juror is excused with the consent of the defendant, and another is sworn in his place, tlie verdict will be sustained.^** 467. Jury de medietate linguae. — The right to a jury of this sort formerly existed in Pennsylvania. Thus, on a trial of an Italian for murder, a challenge to the array of jurors was sustained, and the court awarded a tales de medietate UngiuB.^^" By the act of 1834, it was provided that "no alien shall in any civil or criminal case whatever be entitled to a jury de medietate linguoB or partly of stran- gers."^®^ defendants that the jury be permitted "' Com. v. Shaw, 1 Pittsb. 492, to view the alleged nuisance, and see its followed and the same detenninatlon situation and surroundings, and observe reached in Com. v. Byers, 5 Pa. Co. Ct. its operations before passing upon them : 295, 5 Lano. L. Rev. 270. "This was a reasonable request, and, in '" Com. v. Sweet, 16 Pa. Co. Ct. 198, view of the magnitude of the interests 4 Pa. Dist. R. 136. involved, it is difficult for us to under- "' Com. v. Fritch, 9 Pa. Co. Ct. 164. stand why it was not granted by the ^^ Respublica v. Mesca, 1 Dall. (Pa.) court." 73. "'Doeller v. Com. 3 Serg. & R. 237. '"Act April 14, 1834, P. L. 333, § 149. CHAPTEE XX. CONDUCT OF TRIAL. 468. Publicity. 469. Presence of accused at trial. 470. Presence of accused at sentence. 471. Restraint of accused. 472. Presence of judge. 473. Presence of witnesses. 474. Counsel for commonwealth, 475. Counsel for defendant. 476. Admissions by counsel. 477. Conduct of proceedings. 478. Stenographers. 479. Interpreters. 480. Order of testimony. 481. Cross-examination. 482. Rebuttal. 483. Sur-rebuttal. 484. Duty to call witnesses. 485. Control of court over addresses of counseL 486. Opening addresses. 487. Closing addresses. 488. Improper remarks of counsel during trial. 489. Sending out papers with jury. 468. Publicity. — In all criminal prosecutions the defendant is en- titled to a speedy public trial by an impartial jury of the vicinage.^ So, it would be error to exclude the public entirely, or any general class of individuals, from attendance upon the hearing of the crim- inal case.* But regulations necessary for the proper conduct of the court business may be made. Thtis, it is proper to order that the doors be closed during the examination of each witness, to prevent disturbance.* 469. Presence of accused at trial.— The prisoner has the right to de- mand the nature and cause of the accusation against him, and to meet the witnesses face to face.* !N"ot only does the right exist to be pres- ' Pa. Const, art. 1, § 9. ' Com. v. Van Horn, 4 Lack. Legal ' United States v. Buck, 4 Phila. 161, News, 63, Affirmed in 188 Pa. 143 41 17 Phila. Leg. Int. 181. All colored Atl. 469. people. *Pa. Const, art. 1, § 9. 411 413 CRIMINAL AND PENAL PROCEDURE. [chap. xx. ent during the trial of all offenses which were at one time capital,® but the presence must affirmatively appear upon the record,* and such right cannot be waived by counsel for the prisoner.'' It must appear that the defendant was present at all stages of the proceedings, from the ai'raignment to the finding of the verdict, and at the time of the sentence ; but it is not necessary that he be present at the making of a motion for a new trial, or at the time of filing reason therefor,* or at a second adjournment of court made to await the agreement of the jury." If the record does not show affirmatively that the prisoner was present at every stage of the proceedings against him, through an omission of the clerk, the trial court may direct that the record shall be amended so as to conform to the actual facts of the case and show the presence of the prisoner. ■'° In cases not capital, the record need not affirmatively show the presence of the defendant; and in the absence of proof to the con- trary it will be presumed that everything was properly done by the court below. Thus, it is unnecessary in case of burglary,^ ^ or of larceny.^^ But if it appear that the defendant was not present, the trial will be erroneous ; as, e. g., where the presence of the defendant had been waived by counsel in trial for burglary ;^* or where the jury was called for further instructions without sending for the defendant or his counsel.-'* But if such absence be voluntary, the prisoner not appearing when called, at the time the verdict is received, being out on bail, he camiot take advantage of that absence;^® or even when not called.!® 470. Presence of accused at sentence, — As in all other steps, the presence of the defendant at sentence must affirmatively appear in capital cases. The record must also set forth that, at the time of im- position of sentence, the defendant was asked whether any reason ex- isted why such sentence should not be passed.^'' But it is not nec- essary that the defendant be asked why sentence of death should not VocoBs V. Com. 5 Serg. & R. 315. Lynch v. Com. 88 Pa. 189, 32 Am. Rep. • Dunn V. Com. 6 Pa. 384 ; Com. v. Sil- 445. cox, 161 Pa. 484, 29 Atl. 105; Purcell v. " Prine v. Com. 18 Pa. 103. Com. 1 Walk. (Pa.) 243. "Com. v. House, 6 Pa. Super. Ct. 92 Trine v. Com. 18 Pa. 103. 41 W. N. C. 246, 28 Pitteb. L. J N S 'Jewell V. Com. 22 Pa. 94. 210. "Com. V. Pannell, 9 Lane. Bar, 82, Re- ^^ Lynch v. Com. 88 Pa. 189, 32 Am. versed on other ground; Pannell v. Com. Rep. 445. 86 Pa. 260. " Com. v. Craig, 19 Pa. Super. Ct. 81. "OoTO. V. Siloox, 161 Pa. 484, 29 Atl. "Dunn v. Com. fi Pa. 384; Hamilton 105. V. Com. 10 Pa. 129, 55 Am. Dee. 485; ^^ Holmes v. Com. 25 Pa. 221. Dougherty v. Com. 69 Pa. 286. ^'Jacobs V. Com. 5 Serg. & R. 315; SI 471, 472] CONDtrCT OF TRIAL. 413 be imposed, since that is the only sentence which the court can in- flict/® If the record does not show that this inquiry was made, the appellate court will set aside the sentence, and return the record to the lower court for the proper passing of the same.** In noncapital cases, presence at sentence is also required, though such need not affirmatively appear.^" In Taggart v. Com?^ the sentence seems to have been filed, and exception was taken. But it did not appear of record that the defendant was not present, and the question is dismissed by the appellate court.^^ Actual presence is not requisite in such cases where defendant is released on bail, and has been called/* or even when not called.^* xsTor is it necessary to validate a sentence for costs merely, which merely fixes a pecuniary liability, and inflicts no corporal punishment.^'' 471. Restraint of accused. — The defendant must not be manacled or shackled during his trial, unless there be danger of escape or of his doing violence. But it is not ground for reversal that the pris- oner was brought into the courtroom handcuffed, where he was seen by the grand jury which found the bill of indictment. "What reason- able precautions the officer haA'ing the prisoner in charge shall take to keep him safely, in his passage from prison to the courtroom, dur- ing the progress of the trial, must largely depend upon the judgment of the ofiioer."2« "1^0 person who may hereafter be arraigned on any indictment, and who shall be bound by recognizance to appear and abide by the judgment of the court, shall be placed within the prisoners' bar to plead to such indictment, or be confined therein during his trial ; and all persons shall have an opportunity of a full and free communica- tion with their counsel."*^ 472. Presence of judge. — The presence of the trial judge at every stage of the proceeding is essential to its validity.^* But it is not er- ror foi- the judges constituting the court to separate while determin- ing the degree of guilt, after a plea of guilty entered by the defendant "Rizzolo V. Com. 126 Pa. 54, 17 Atl. '^Means' Estate, 22 Pa. Co. Ct. 131; 520. Corr.. v. Thompson, 18 Pa. Co. Ct. 487. '" Com. V. Preston, 188 Pa. 429, 41 " Com. v. Weler, 167 Pa. 153, 31 Atl. Atl. 534; McCue v. Com. 78 Pa. 185, 21 481. Am. Rep. 7. "Act March 31, 1860, P. L. 427, § 34. ™ Holmes v. Com. 25 Pa. 221. This section is taken from the act of "^ 21 Pa. 527. March 28th, 1808, 4 Smith's Laws, 529. -Davis V. Com. 13 Pa. Co. Ct. 345, 3 Report on Penal Code, 45. Pa. Dist. R. 668. »» Clark, Crim. Proe. 431; 21 Enc. PI. ■^ Lynch v. Com. 88 Pa. 189, 32 Am. & Pr. p. 978. Rep. 445. " Com. V. Craig, 19 Pa. Super. Ct. 81. 414 CRIMINAL AND PENAL PROCEDURE. [chap. xx. to an indictment for murder.^^ And if one judge presides during the preliminary proceedings, there is no objection to another acting in subsequent stages of the case. Thus, it was proper for a second judge to pass upon a motion to quash the indictment, where the first had given permission to the district attorney to frame the same upon an invalid presentment of the grand jury.-^" 'Nor was there any ob- jection to the imposition of sentence by the regular judge, where the same had been suspended by one specially presiding.^^ 473. Presence of witnesses. — The attendance of witnesses for the commonwealth is secured by a subpojna issued and served. It may be addressed to persons residing within the county, or, if the court sees proper, to individuals in other counties of the state.*^ The de- fendant has the right to compulsory process for obtaining witnesses in his favor in all criminal prosecutions.^^ By the act of 1718 the issuance of process to compel witnesses to appear for defendant in capital eases was given. ^* ilnd the court will direct a subpoena to issiie for that ])urpose in any criminal prosecution, and compel its service by the proper ofiicer.''"'® But there is no power in the court, either by statute or common law, to authorize an allowance to a pau- per prisoner to secure the attendance of such witnesses.^' ISTor can the county be made liable for the costs of service by the officer, or of the witnesses summoned."^ Though no compensation can be given the officer, yet the court will compel him to serve the process, since he holds his office cum onere, and must render a service of this kind gra- tuitously.*® The Constitution gives to the defendant the right to meet wit- nesses face to face.*" By confronting witnesses is meant the right of cross-examination in the presence of the accused.*^ This does not prevent a juror from being called as a witness, since he may be ex- amined and cross-examined.*^ Ifor is there a violation of the con- stitutional right when, a witness having once testified, and the ac- "Gom. V. Titus, 3 Brewst. (Pa.) 165. ^Huntingdon County v. Com. 72 Pa. "Com. V. Green, 126 Pa. 531, 17 Atl. 80; Com. v. Buccicri, 153 Pa. 570, 26 878. Atl. 245. " Com. V. Dunleavy, 16 Pa. Super. Ct. *' Com. v. Lindsey, 2 Chester Co. Rep. 380. 268. For the right to postpone where "^Act March 31, 1860, P. L. 427, § 1. the witnesses summoned fail to appear, ^ Pa. Const, art. 1, § 9. see Continuance of Trial, chtipter 17, § ""Act May 31, 1718, 1 Smith's Laws, 387, ante. 105, § 4. "Pa. Const, art. 1, § 9. ^-' Com. V. Painton, 8 Lane. L. Rev. " Howser v. Com. 51 Pa. 332. 376; Com. v. Lindsey, 2 Chester Co. Rep. "Bowser v. Com. 51 Pa. 332. 268. "' Com. V. Lindsey, 2 Chester Co. Rep. 208. § 474] CONDUCT OF TRIAL. 416 cused having had the opportunity to cross-examine, this testimony is admitted in a subsequent trial for the siame offense, because he has in the meantime left the state,** or has since died.** Every person indicted for treason shall have a copy of the in- dictment and a list of the jury and the witnesses to be produced on the trial for proving such indictment, mentioning the names and places of abode of such jurors and witnesses, delivered to him three whole days before the trial.*^ 474. Counsel for commonwealth. — By act of assembly the district attorney is made the representative of the commonwealth in crim- inal prosecutions. "The officer so elected shall sign all bills of in- dictment, and conduct in court all criminal and other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney generals, and receive the same fees or emoluments of office: Provided, Said district attorney shall in no case whatever have authority to enter nolle p-osequi in any criminal case, either before or after bill found, or to discharge a prisoner from custody, without first having obtained the approbation of the court in writing."*® In case of sickness or from other cause he may, with leave of court, appoint a competent attor- ney to act as his deputy for one term.*'' So, he may call to his as^ sistance members of the bar, where he is a witness in the case.*^ Pri- vate counsel for the prosecution may likewise be associated with the district attorney by leave of court.** And the action of the trial judge in permitting such an individual to close the case to the jury is not ground for rew^ersal.^" But an attorney should not be allowed to as- sist for the prosecution when he made the information on which the indictment is based. If he does so act, the verdict of guilty cannot be sustained.®-' By the act of 1855 the court was given authority to appoint a dis- trict attorney when the regular officer was- absent from court.®^"^ Similar power was conferred by the act of 1866: "If any district at- " Com. V. Chary, 148 Pa. 26, 23 Atl. " Com. v. Shaffer, 178 Pa. 409, 35 1110. Atl. 924. " Com. V. Kech, 148 Pa. 639, 24 Atl. "= Com. v. Peterson, 4 W. N. C. 87. 161; Brovm v. Com. 73 Pa. 321, 13 Am. ^ Com. v. Eisenhower, 181 Pa. 470, 37 Eep. 740. Atl. 521. "Act March 31, 1860, P. L. 427, § 35. "^ Com. v. LindermoM, 25 Pa. Co. Ct. «Act May 3, 1850, P. L. 654, § 1. 94. "Act May 3, 1850, P. L. 654, § 7. As- ''^-' Act April 26, 1855, P. L. 308, § 1. sistant district attorneys are provided for certain counties. 416 CRIMINAL AND PENAL PROCEDURE. [chap. xx. tomey within this commonwealth shall neglect or refuse to prosecute, in due form of law, any criminal charge regularly returned to him or to the court of the proper county; or if, at any stage of the pro- ceedings, the district attorney of the proper county and the private counsel employed by the prosecutor should differ as to the manner of conducting the trial, it shall be la-w-ful for the prosecutor to pre- sent his or her petition to the court of the proper county setting forth the character of the complaint, and verify the same by affidavit; whereupon, if the court shall be of the opinion that it is a proper case for a crimioal proceeding or prosecution, it shall be lawful for it to direct any private counsel employed by such prosecutor to conduct the entire proceeding, and, where an indictment is necessary, t» ver- ify the same by his own signature, as fully as the same oould be done by the district attorney ; and this act shall apply to all criminal pro- ceedings heretofore commenced and still pending, as well as to those which shall be instituted hereafter."^* The Constitution of 1874, making the district attorney, a county officer, has not affected the force of this act.^" This act is not mandatory. It confers extraordinary powers, and should be enforced only when circumstances impera- tively demand it; the district attorney must be allowed to exercise discretion in pressing a prosecution, or in using leniency, and the court will interfere with that discretion only when it has been im- properly exercised.^® The court may thus act when the district attor- ney refuses to sign the bills of indictment."^ 475. Counsel for defendant. — In all criminal prosecutions the ac- cused has a right to be heard by himself and his counsel.^* This is a constitutional right, of which the court may not deprive the de- fendant; and it is error to order the submission of the case to the jury without argument, against the objection of the defendant.®" But it need not appear affirmatively by the record that the constitutional right was allowed, regularity being presumed.*** Though the court will appoint an attorney, who, being an officer of the court, must obey, to assist the defendant, he is entitled to no compensation for "Act March 12, 1866, P. L. 85, § 1. Atl. 370; but a conviction was affinned " Com. V. McBale, 97 Pa. 397, 39 Am. in Theel v. Com. 22 W. N. C. 58, 35 Rep. 808. Pittsb. L. J. 399, where the court re- " Com. V. Dawson, 3 Pa. Dist. R. 603. fused to allow an argument to the jury " Com. V. McBale, 97 Pa. 397, 39 Am. as to whether the book in question was Rep. 808. within the class prohibited by act of as- " Pa. Const, art. 1, § 9. Counsel was sembly, on the ground that the char- provided for capital cases by act of May acter of the work was a matter of law 31, 1718, 1 Smith's Laws, 105, § 4. in the court. "Steioart v. Com. 117 Pa. 378, 11 " Cathcart v. Com. 37 Pa. 108. §§ 476-478] CONDUCT OF TRIAL. -J 17 his services ; nor can he even be reimbursed for expenses incurred in the preparation and course of the trial."* Nor will the costs of a paper book be charged to the county in case of appeal.^^ "Courts may regulate the manner and time for the exercise of the right to be heard by counsel, and may limit the number and the length of the addresses to be made to the jury, by general rule, or by an order made in the particular case. These subjects are vrithin the exercise of ju- dicial discretion, and merely regulate the exercise of the constitu- tional right."** Thus, the limiting in a murder trial of speeches to two hours was held proper.®* 476. Admissions by counsel. — Admissions by counsel, made in open court, are evidence against the prisoner, and may be used by the jury as a basis of their verdict."' But a statement in argument, that the paternity of a child is admitted, vsdll not be ground for charging that the defendant admitted this fact, he not having been a witness at the trial.*" 477. Conduct of proceedings. — Conduct of the trial is largely with- in the discretion of the court before whom it is conducted, and it is only in case of abuse by reason of which the defendant is prejudiced, that the appellate court will reverse. This is true, as has been seen, where the application is for a postponement, or change of venue, or for a preliminary trial for alleged present insanity, or for a separate trial.®'' So, adjournments of court during the trial of the cause are discretionary,"* or a continuance from Saturday to Monday."* Like- wise, the arguments of counsel before the jury may be limited as to time,''" though it is beyond the power of the court to deny altogether to the defendant the right to be heard by counsel. ''* 478. Stenographers.— "The law judges of each of the several courts of oyer and terminer and general jail delivery and the courts of quar- ter sessions of the peace of this commonwealth are hereby authorized, in their discretion, to appoint a stenographer or stenographers to be attached to the courts, who shall hold his, her, or their position dur- ing the pleasure of the oourt."^* If this is done, and clerical errors " Wayne County v. Waller, 90 Pa. 99, "' See chapter xvn., ante. 35 Am. R3p. 636. <» Com. v. Buccieri, 153 Pa. 535, 26 «' Com. V. Buccieri, 153 Pa. 570, 26 Atl. 228. Atl. 245. "Com. v. Painton, 5 York Legal " Williams, J., in Stewart v. Com. Record, 140. 117 Pa. 378, U Atl. 370. ''Com. v. Buccieri, 153 Pa. 535, 26 "OoTO. V. Buccieri, 153 Pa. 535, 26 Atl. 228. Atl. 228. " Stewart v. Com. 117 Pa. 378, 11 Atl. "Com. V. McMurray, 198 Pa. 51, 47 370. But see Theel v. Com. 22 W. N. Atl. 952. C. 58, 35 Pittsb. L. J. 399. "Com. V. i8f parte McGirmis, 14 36 Pittsb. L. J. 363, 6 Lane. L. Rev. W. N. C. 221. 189. '^ Ex parte McGirmis, 14 W. N. C. "^ Dux's Case, 7 Pa. Co. Ct. 294. 221. " BaranosU's Case, 9 Pa. Co. Ct. 264, " Com. v. Wirehaoh, 192 Pa. 150, 44 36 Pittsb. L. J. 363, 6 Lane. L. Rev. Atl. 1102. 189; Wilson's Case, 2 Pa. Co. Ct. 575, ''Com. v. Hays, 195 Pa. 270, 45 Atl. 19 W. N. C. 37; Com. v. Briggs, 16- 728. Phila. 438, 41 Phila. Leg. Int. 166, 14 '"Act May 8, 1883, P. L. 21, 30. Pa. Crim. Proc— 30. 406 CRIMINAL AND PENAL PROCEDURE. [chap. xxiv. ment for which such prisoner was sentenced has not expired, to re- mand such prisoner to the place of imprisonment from which he or she was brought to such hospital, to serve out the unexpired term of sentence, or if such prisoner become unsound in mind after the al- leged crime and before conviction, to remand such prisoner for trial ; but if the term for which such prisoner was sentenced shall have ex- pired, or if the crime wherewith such prisoner is charged shall have been committed during his or her probable insanity, and in all cases provided for in the 2d section of this act, it shall be lawful for the said judge or court to order the discharge of such patient from the said hospital."*^ "Whenever the term of sentence of any prisoner sent to a hospital for the insane under the provisions of this act shall expire while such prisoner remains uncured and a patient of said hospital, it shall he/ lawful for the judge or court by whom the order of removal and de- tention has been made, upon the due application of relatives or friends of such patient, and upon proper surety being given for the custody and care of such patient, to make an order for the discharge of such patient from the said hospital, and his or her delivery to the guardianship and control of the person or persons applying there- for; and no person committed to a hospital under any of the provi; sions of this act shall he discharged therefrom otherwise than in the manner hereinbefore provided."^"" 556. Where prisoner about to be discharged is insane. — "In every case in which any person charged with any offense shall be brought before the court to be discharged for want of prosecution, and shall, by the oath or affirmation of one or more credible persons, appear to be insane, the court shall order the district attorney to send before the grand jury a written allegation of such insanity in the nature of a bill of indictment ; and thereupon the said grand jury shall make inquiry into the case, as in cases of crimes, and make presentment of their finding to said court thereon ; and thereupon the court shall order a jury to be impaneled to try the insanity of such person ; but before a trial thereof be ordered, the court shall direct notice there- of to be given to the next of kin of such person, by publication or otherwise, as the case requires ; and if the jury shall find such person to be insane the like proceedings may be had as aforesaid."^"* 557. Fines. — All fines imposed upon any party by any court of criminal jurisdiction shall be decreed to be paid to the common- •" Act May 14, 1874, P. L. 160, § 3. ""Act March 31, 1860, P. L. 427, § 6S. '"■Act May 14, 1874, P. L. 160, § 4. g§ 558-561] SENTENCE. 407 wealth, but the same shall be collected and received for the use of the respective counties in v^hieh said fine shall have been imposed as aforesaid, as is now directed by the law.^"^ Where a fine is imposed under the act of March 16, 1847, for disturbing a religious meeting, an execution against the goods of the defendant is not to be issued, but it is to be enforced by the issuance of a mittimus to arrest the person of the defendant.^"* 558. Extent of the sentence. — As has been noticed, the court is lim- ited to the penalty provided by the statute where such exists,^"* and an attempt to commit a crime cannot be punished more severely than the substantive offense.^"" Nor can the conspiracy to commit a crime be punished more severely than could be the consummated offense.-^"® 559. What is sufficient to sustain sentence. — If there be one count in the indictment sufficient to sustain the sentence, it will be good, though a general verdict of guilty be found on the indictment, which contains other counts that are defective. ■^''^ But if the only count on which there was a verdict of guilty be defective, the sentence must be set aside.^"^ Where there is a general verdict of guilty on a bill of indictment containing several counts in which the same offense is charged in different ways, the court cannot sentence on each count, but on the one charging the most serious offense.^"® But where dif- ferent offenses are charged, the judgment may be on either count,^^" or the court may sentence cumulatively on both counts.^-'-^ And where there is nothing to show that the separate counts charged the same of- fense in different ways, it will be presumed that the offenses are dis- tinct."2 560. Mitigation of sentence. — It is not a matter of right for the de- fendant to submit affidavits after a plea of guilty, to show why his sentence should be mitigated,^ '■^ though the court may allow it. 561. Suspension of sentence. — It is common practice for the court of Pennsylvania to suspend sentence upon the payment of costs, when it "'^ Act March 31, 1860, P. L. 427, § 78. "^ Com. v. Gallagher, 9 Pa. Super. Ct. "= Com. V. Sorber, 5 Kulp, 373. 100, 43 W. N. C. 408. "* Rogers v. Com. 5 Serg. & R. 463. '" Harman v. Com. 12 Serg. & E. 69 ; "'Scott V. Com. 6 Serg. & R. 224; Johnston v. Com. So Fa.. 54, 27 Am. Rep. Rogers v. Com. 5 Serg. & K. 463. 622. '" Williams v. Com. 34 Pa. 178 ; Hart- "° Com. v. Doughty, 139 Pa. 383, 21 maim v. Com. 5 Pa. 60. Atl. 228. "" Eenwood v. Com. 52 Pa. 424; Com. ^''^ Com. v. Birdsall, 69 Pa. 482, 8 Am. V. Bradley, 16 Pa. Super. Ct. 561; Com. Rep. 283; Com. v. Sylvester, Brightly V. Church, 17 Pa. Super. Ct. 39; Com. v. (Pa.) 331, 4 Clark (Pa.) 31. Stahl, 1 Pa. Super. Ct. 496, 38 W. N. C. '" Com. v. Birdsall, 69 Pa. 482, 8 Am. 330 ; Hazen v. Com. 23 Pa. 355 ; Com. v. Rep. 283 ; Com. v. Stahl, 1 Pa. Super. Prickett, 132 Pa. 371, 19 Atl. 218; Ct. 496, 38 W. N. C. 339. Hutchison v. Com. 82 Pa. 472; Com. v. ^" Respublica v. Askew, 2 Dall. (Pa.) Landis, 13 Pa. Super. Ct. 134. 189, 1 Yeates, 186. 468 CRIMINAL AND PENAL PROCEDURE. [chap. xxiv. is believed by the court that justice will be best subserved in this way."* What limits exist to the power of the court to subsequently call the prisoner for sentence, if he deems it wise, has never been de- termined in Pennsylvania. The passing of judgment after the term has expired has been sustained.-*^^ But where sentence is suspended upon compliance with a part of the judgment which the court is em- powered by act of assembly to impose in such case, such as a fine, and the defendant has complied with the condition, judgment cannot be subsequently passed."® The condition as to payment of fine, which is part of the penalty, is to be distinguished from the imposition of costs, which is not part of the sentence.-'^'' 562. Amendment of sentence. — The sentence imposed by the court may be reconsidered during the same term at which it was imposed, and either modified or increased ;^^® but there is no power in the court to do so after the expiration of the term.^^® And this difficulty can- not be cured by the voluntary entry by the court, during the term, of a rule to show cause why the sentence should not be reconsidered, when no action is taken upon it until after the expiration of the term.^^" It would seem that the term, as meant, covers the period until the next succeeding term has arrived, although after passing the sentence the court has adjourned from time to time.^*^ It has been said that the supreme court would be bound by the same rule in an application made to reopen a final judgment.-'^^ 563. Recording: sentence. — The supreme court will not discharge on habeas corpus a prisoner convicted on a plea of guilty, because of a mistake of a clerk in recording it.^^^ Nor is such a clerical error a ground for reversal.''^* 564. Interpretation.— The term "custody," as used in the judg- ment, means close imprisonment, and does not give the sheriff the '" Com. V. Dunleavy, 16 Pa. Super. Ct. "' White's Application, 30 Pittsb. L. 380; Com. ex rel. Nuber v. Keeper of J. 251; Com., v. Patterson, 5 Kulp, 307, Work House, 6 Pa. Super. Ct. 420, 41 1 Susquehanna Leg. Chronicle, 73; Com. W. N. C. 549. V. Gillespie, 25 Pa. Co. Ct. 153, 10 Pa. "'Com. V. Dunleavy, 16 Pa. Super. Dist. R. 393, 58 Phila. Leg. Int. 321, 7 Ct. 380. Lack. Legal News, 174. "° Com. ex rel. "Nuber v. Keeper of "" Com. v. Mayloy, 57 Pa. 291. Workhouse, 6 Pa. Super. Ct. 420, 41 W. "' Com. v. Thompson, 18 Pa. Co. Ct. N. C. 549. 487. '"Com. ex rel. Nuber v. Keeper of ^'^ Schoeppe v. Com. 65 Pa. 51. Workhouse, 6 Pa. Super. Ct. 420, 41 W. ™ Com. v. Wright, 126 Pa. 464, 17 N. C. 549. Atl. 620. "^Com. V. Brown, 12 Phila. 600, 35 ^"^ Com. v. Morrison, 193 Pa. 613, 44 Phila. Leg. Int. 5; Com. v. Monroe, 15 Atl. 913. Phila. 379, 38 Phila. Leg. Int. 185; Com. V. Thompson, 18 Pa. Co. Ct. 487; DyoU V. Com. 5 Whart. 67. §§ 565-567] SENTENCE. 469 right to allow the prisoner to leave the confines of the jail.^^^ The term "month," as used in a sentence, means a lunar month of twenty- eight days, as distinguished from a calendar month.^^® 565. When sentence commences to run. — Ordinarily, the sentence commences to run from tlie time of imposition. It may be made to begin at the expiration of a former sentence.^*'' If this is done, and the first judgment be reversed, the second commences from the time of reversal. If the appeal be taken and a supersedeas be granted, the sentence begins at the time of afiirraance, and no reformation of the sentence is necessary upon the return of the record to the lower court.^^* 566. Serving term. — So long as the defendant is in custody the time is counted as part of the sentence, though for a portion of the period he be in an insane asylum.-'^* The fiilfilment of a sentence for a felony not punishable with death, or a misdemeanor punishable with imprisonment at labor, is equivalent to a pardon by the govern- or, except in cases of wilful and corrupt perjury.^^" 567. Commutation. — The first act providing for commutation of imprisonment for good behavior was held unconstitutional as inter- fering with the judgment of the courts.^^^ Subsequently, legislation was passed allowing commutation upon the direction of the governor, who based his action on a certificate of the warden or principal keeper of such prison or penitentiary, with the approval of the board of inspectors of the same.'^^ This act was extended in its operation to county jails.^^* This legislation has been repealed by the act of 1901,^^*^ which provides also for action on the order of the governor. This act is constitutional, as it does not interfere with the pardoning power, and is not ex post facto, though retroactive in its effect. It does not ap- ply to Federal prisoners confined within the state. ^** Under its pro- ^'^ Smith V. Com. use of McGary, 59 82 Am. Dec. 526; Com. v. Brockway, 5 Pa. 320. Kulp, 174. '''' Respublica v. Oswald, 1 Dall. "'^Act May 21, 1869, P. L. 1267, § 1. (Pa.) 319, 1 Am. Dee. 246; Com. v. As to the effect of this act where succes- Stanley, 12 Pa. Co. Ct. 543, 23 Pittsb. sive sentences were imposed, see Rein- L. J. N. S. 256, 2 Pa. Dist. R. 330. hart v. Vamc, 10 W. N. C. 222; Com. ex ^"Russell V. Com. 7 Serg. & R. 489. rel. Leetham v. Keeper of Philadelphia "= Com. V. Cochran, 25 Pa. Co. Ct. 58. County Prison, 16 Phila. 487, 41 Phila. "" Re Wright, 18 Phila. 494, 44 Phila. Leg. Int. 94. Leg. Int. 26: act May 14, 1874, P. L. "Act February 12, 1870, P. L. 32. 160, § 3. ""a Act May 11, 1901, P. L. 166. "°Act March 31, 1860, P. L. 382, § ^'^ Commutation Act of 1901, 25 Pa. 181. Co. Ct. 301, 10 Pa. Dist. R. 361, 4 "'Act May 1, 1861, P. L. 462; Com. Dauphin Co. Rep. 168. eoo rel. Johnson v. Halloumy, 42 Pa. 446, 470 CRIMINAL AND PENAL PROCEDURE. [chap. xxrv. visions, a prisoner who has been released by virtue of the act, and VT'ho subsequently commits a felony before the date when his sentence would have expired, musit serve out the remainder of his original sen- tence in addition to the sentence imposed for the second offense ; and it is the duty of the prison authorities to execute the law in this re- spect, independently of any action by the governor or board of par- dons. Where the second sentence is to a different prison from the first, the prisoner miist serve the balance of his origiual term in the prison to which he is last sentenced. While he must serve out the original term without commutation, he is entitled to the commuta- tion allowed by th6 act upon his second sentence.-*^^ 568. Unconstitutional punishments. — "Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflict- g(j_5;i36 This constitutional provision does not prevent the impris- onment of the defendant until the fine imposed has been paid, or until a discharge is obtained under the insolvent laws.-^^'^ !N"or does it prevent one acquitted of crime from being sentenced to pay costs.**® It does prevent the imposition of those unusual common-law punish- ments, such as a ducking stool.-'*® Section 16 of article 1 provides that "the person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law."**" This does not pre- vent punishment of one found guilty of a violation of the act of 1889,*** which provides for imprisonment of a banker who receives deposits with knowledge that the bank is insolvent. The penalty is not imposed for the indebtedness, but for the crime of receiving money under the circumstances specified.**^ 569. Outlawry and attaint. — A system of outlawry has been pro- vided by the Penal Code, being practically a transcript of the act of 1791.*** No decisions have arisen since the passage of either act. Prior to 1791 these cases had been decided.*** iN'o person shall be attainted of treason or felony by the legisla- ture.**^ ISTo attainder shall work corruption of blood, nor, except "'Commutation Act of 1901, 11 Pa. "'P. L. 145. Dist. R. 152, 32 Pittsb. L. J. N. S. 305. '" Com. v. Sponsler, 16 Pa. Co. Ct. ""Pa. Const, art. 1, § 13. 116, 1 Lack. Legal News, 61. "'Com. V. Bough, 1 Pa. Dist. R. 51. ■« March 31, 1860, P. L. 421, § 73. ^"Wric/ht V. Com. 77 Pa. 470; Com. "* RespuhlKa v. Doan, 1 Dall. (Pa.) V. Hufigvns, 2 Pa. Dist. R. 329, 12 Pa. 86; Respuhlica v. Steele, 2 Dall. (Pa.) Co. Ct. 496, 23 Pittsb. L. J. 290, 10 92; Respuhlica v. Buffington, 1 Dall. Lane. L. Rev. 135. (Pa.) 60. ^^ James v. Com. 12 Serg. & R. 220. "» Pa. Const, art. 1, § 18. '"Pa. Const, art. 1, § 16. § 570J SENTENCE. 471 during the life of the offender, forfeiture of estate to the conunon- wealth.^*6 670. Sentence of death. — The sentence of death can only be im- posed after conviction for murder of the first degree.^*'' When it is imposed, the opportunity must be given to the defendant to state orally whether any reason exists which would prevent its imposi- tion.^** The judgment as passed does not fix the date of execution, which is done by the executive.-'*® The manner of the execution of the death sentence is regulated by the Penal Code. "Whenever, hereafter, any person shall be con- demned to suffer death by hanging, for any crime of which he shall have been convicted, the said punishment shall be inflicted upon him within the walls or yard of the jail of the county in which he shall have been convicted ; and it shall be the duty of the sheriff or coroner of the said county to attend and be present at such execution, to which he shall invite the presence of a physician, the district attor- ney of the county, and twelve reputable citizens who shall be selected by the sheriff; and the said sheriff shall, at the request of the crim- inal, permit such ministers of the Gospel, not exceeding two, as he may name, and any of his immediate relatives, to attend and be pres- ent at such execution, together with such officers of the prison and such of the sheriff's deputies as the said sheriff or coroner, in his dis- cretion, may thirik it expedient to have present; and it shall be only permitted to the persons above designated to witness the said execu- tion : Provided, That no person under age shall be permitted, on any account, to witness the same ; and after the execution the said sheriff or coroner shall make oath or affirmation, in writing, that he pro- ceeded to execute the said criminal within the walls or yard afore- said, at the time designated by the death warrant of the governor; and the same shall be filed in the office of the clerk of the court of oyer and terminer of the aforesaid county, and a copy thereof pub- lished in two or more newspapers, one at least of which shall be printed in the county where the execution took place "^^^ In Com. V. Hill^°^ all the necessary forms from the mandate of the governor to the return of the execution will be found. i« Pa. Const, art. 1, § 19. For for- "» Cathcart v. Com. 37 Pa. 108 ; Com. feiture as part of the sentence, see Com. v. Hill, 185 Pa. 385, 39 Atl. 1055 (an V. Pennoch, 3 Serg. & R. 199. elaborate history of thi? practice is "'Act March 31, 1860, P. L. 42S, § herein contained, as well as a form of 177. the mandate from the governor). '"See Presence of Accused, § 470, ""Act March 31, 1860, P. L. 427, § 76. ante. '" 185 Pa. 385, 39 Atl. 1055. 473 CRIMINAL, AND PKNAL PROCEDURE. ' [chap. xxiv. In case there is a commutation of the death sentence to imprison- ment for life or for a term of years, authority is given for the recep- tion of the prisoner into one of the penitentiaries.''^^ 571. Restitution. — Upon all convictions of robbery, burglary, or larceny of any goods, chattels, or other property made the subject of larceny by the lavrs of this commonwealth, or otherwise un- lawfully and fraudulently taking and obtaining the same, or of re- ceiving such goods knowing the same to be stolen, the defendant shall, in addition to the punishment prescribed for such offenses, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof as may not be restored. And in all convictions for forgery or passing counterfeits or cheating, the same sentence as to restitution shall be passed. ■'^^ In order to stis- tain a judgment of restitution, where the offense charged does not necessarily involve the actual taking, such fact must be alleged in the indictment.^ °* This provision does not prevent the party in- jured from" issuing execution to secure such respective sums recov- ered against the defendant.^^" In forcible entry and detainer, the defendant may be ordered to make restitution of the lands and tenements unlawfully entered and detained.i^^' 572. Abatement of nuisance.— On conviction of the crime of nui- sance, in addition to the fine or imprisonment the court may direct either the defendant, or the sheriff of the proper county at the ex- pense of the defendant, to abate tlie same.'''' Wliere such a sentence is imposed, the defendant may be bound over to comply with the or- der, or, in lieu thereof, surrender his person to the sheriff.'^® Where the nuisance consists in keeping cattle in a barn, thus causing the pollution of a spring, the defendant should be ordered to abate the nuisance by the removal of the offensive use, and not to remove the bam.'°^ And the nuisance may be ordered to be abated by the de- fendant, though it is on the land of another.'*" "Where a railroad company has been indicted for blocking a road with its track, with- out substituting a new road as required by the act of 1849, it can- "»Aet April 20, 1874, P. L. 116, § 1. (Pa.) 428; Com. v. Stoever, 1 Serg. & •"Act March 31, 1860, P. L. 382, § K. 480. 179. "'Act March 31, 1860, P. L. 382, § "' Huntminger v. Com. 97 Pa. 336. 73. ""Act March 31, 1860, P. L. 427, § 72. "« Taggart v. Com. 21 Pa. 527. ""Act March 31, 1860, P. L. 382, §§ ^"Barclay v. Com. 25 Pa. 503, 64 Am. 21, 22. For restitution by a proceed- Dec. 715. ing before two justices, prior to the act '°° Delaware Div. Canal Co. v. Com. of 1860, see Blythe v. Wright, 2 Ashm. 60 Pa. 307, 100 Am. Dec. 570. §§ 573-577] SENTENCE. 473 not, as a part of tKe sentence, be ordered to reconstruct the road, but a fine alone can be imposed.^ ®^ 573. Attempts. — Though provision is made by the Penal Code for the conviction of attempts to commit crime, no punishment is pro- vided. Such must be found in the act of 1790 as amended by the act of 1807, which provides for a sentence not exceeding seven years, and is unrepealed by the act of 1860.^®^ But the attempt cannot be punished more severely than the consummated offense could be.-*®^ Nor could a conspiracy to commit it.-'** 574. Liquor offenses. — Though one has a bottler's license, he may be convicted of a selling without a license, when he exceeds the power therein given, and be sentenced under § 2 of clause 15 of the act of 1887."5 575. Vagrancy. — A defendant convicted of vagrancy under the act of 1876 cannot be sentenced by the magistrate to jail, but to compul- sory labor.^"* 576. Misbehavior in office. — On conviction of any officer of misbe- havior in office or of any infamous crime, he shall be removed there- from.^®'' And this order for removal shall be included as a part of the sentence.^ ®^ 577. Second offense. — If any person convicted of any offense other than murder of the second degree, for which the punishment pre- scribed by this Code is imprisonment by solitary or separate confine- ment with labor, shall, after such conviction, be guilty of a similar offense, or of any offense for which said punishment is directed, he shall, in either case, upon conviction, be sentenced to undergo an im- prisonment and be kept at labor, not. exceeding double the whole period of time which may by the penal laws of this commonwealth be prescribed for the crime of which he is convicted.-'®® In case of a second conviction for murder of the second degree, life imprison- ment may be imposed.^'"' Some conflict exists as to the manner in which the fact of prior con- ^"^ Pittsburgh, V. & 0. R. Co. v. Gom. For sentence of a druggist having a li- 101 Pa. 192. cense under the same act, see Com. v. '=^ Act April 4, 1807, 4 Smith's Laws, Prickett, 132 Pa. 371, 19 Atl. 218. 393; Com. v. Morton, 1 Kulp, 276; ^"^ Act May 8, 1876, P. L. 154, § 2; Hackett v. Com. 15 Pa. 95. Com. v. Scott, 25 Pa. Co. Ct 210; Ta- ^" Scott V. Com. 6 Serg. & R. 224; grant's Case, 4 Pa. Co. Ct. 615. Rogers v. Com. 5 Serg. & K. 463. "'Pa. Const, art. 6, § 4. '" Hartmann v. Com. 5 Pa. 60; Wil- ""Com. v. Harris, Legal Gaz. Rep. liams V. Com. 34 Pa. 178. 455. "» Act May 13, 1887, P. L. 108; Com. "'Act March 31, 1860, P. L. 382, § V. Lukan, 10 Pa. Dist. R. 95, 58 Phila. 182. Leg. Int. 79, 7 Lack. Legal News, 4. "»Act April 14, 1893, P. L. 17, § 1. 471 CRIMINAL AND PENAL PROCEDURE. [chap. xxiT. viction should be brought upon the record to sustain this additional sentence. It has been said that the proper way is to charge this ia/st in the bill of indictment. ■'^^ On the other hand, it has been held that such practice unfairly prejudices the defendant, and that the fact of previous conviction should be put upon the record by a suggestion of the district attorney filed after verdict.^ ^^ Yet the fact that such was set forth in the indictment has been held by the supreme court to furnish the defendant no ground for complaint.-'^* In a later case the court held it to be sufHcient if the matter is put upon lie record in any way, as by a suggestion filed by the district attorney, saying that the earlier cases decided by the supreme court do not make the charging in the indictment of this fact the exclusive method of pro- cedure.^'* It is necessary that the identity of the prisoner with the first defendant be shown, but this may be proved by the admission of the defendant.^'^^ In case of conviction under the pure food law of 1899, the first offense is punishable by fine alone, and subsequent offenses by fine and imprisonment. ■'''® To warrant, therefore, the sentence of impris- onment in such case, it must appear that the unlawful act is a second oftense. ■''''' 578. Escape. — In case of conviction for escape and breaking prison, one who has been convicted of an offense may be sentenced to under- go an imprisonment, to commence from the expiration of his orig- inal sentence, of the like nature, and for a period of time not exceed- ing the original sentence by virtue of which he was imprisoned.*''^ 579. Accessories. — Punishments of accessories before the fact and principals in the second degree in felonies were made the same as those for the first degree. Accessories after the fact to such offenses, for whom no specific offense is provided, are to be sentenced to a fine not exceeding $500, and to undergo imprisonment vnth or without labor, at the discretion of the court, not exceeding two years.*'^" This provision covered only felonies made such by that act. It was extended to all made such by any act of assembly.*®" "^ Smith V. Com. 14 Serg. & R. 69; Hagan, 20 Phila. 392, 48 Phila. Leg. Rauoh V. Com. 78 Pa. 490; Kane v. Int. 196, 10 Pa. Co. Ct. 22. Com. 109 Pa. 541. "» Act May 5, 1899, P. L. 241. ""Com. V. Morrow, 9 Phila. 583, 29 "'Com. v. Neill, 16 Pa. Super. Ct. Phila. Leg. Int. 380, though the coTirt 210; Com. v. Fink, 16 Pa. Super. Ct. did not here impose double punishment. 191. "'Kane v. Com. 109 Pa. 541. ™ Act May 31, 1860, P. L. 382, § 3. "' Com. V. Hagan, 20 Phila. 392, 48 See also Labor by Convicts, § 551, and Phila. Leg. Int. 196, 10 Pa. Co. Ct. 22. Reformatories, § 545, ante. Here, double punishment imposed. ""Act March 31, 1860, P. L. 382, §180. "' Kane v. Com. 109 Pa. 541 ; Com. v. "° Act June 3, 1893, P. L. 286. § 5801 SENTENCE. 475 Every person who shall counsel, aid, or abet the commission of a misdemeanor punishable under this act, for whom no punishment is provided, shall be liable to be punished as the principal offender.^ *^ 580. Fornication and bastardy. — On conviction of this offense, in addition to the fine imposed, the defendant shall be sentenced to pay the expenses incurred at the birth of said child, and give security by one or more surety, and for such sum as tlie court shall direct to the guardians, directors, or overseers of the poor, county, or township where such child was born, to perform such order for the mainte- nance of said child as the court before which said conviction is had shall direct and appoint.^ ®^ And the court cannot omit the provi- sion for the maintenance of the child unless its death appears,^*'' or unless the child was born outside of the state.-'** The practice is to provide for support from time of birth until the age of seven, either by payment of gross sum or of instalments.^*" The early practice seems to have been to provide for the maintenance of a female child only until the age of five.^*^ Security for the performance of the order may be required by the oourt.^*'' And a recognizance entered into may be sued out, the judgment remaining as security on the unpaid instalments.^** The court may order to whom the instalments shall be paid.-'*® Where no one is named, the mother or her representative is intended.^®" After the order has been made, the party injured cannot release the defendant from further payment, since the judgment is for the bene- fit of the township.^*^ 'Not can the defendant or his surety relieve himself from payment by demanding custody of the child, where the order of the court did not so direct.-'®^ A general pardon will re- lease, since the order of maintenance is a part of the sentence.^®* But a pardon for adultery, when the conviction was of adultery and bastardy, will not.*®' The order for payment is a personal punishment, and dies with the defendant. ■"'^ The method of enforcement of the court's decree '*> Act June 3, 1893, P. L. 286. •«= Com. v. Hocli, 1 Wood-nr. Dec. 332. ""Act March 31, 1860, P. L. 382, § "'Com. v. Strayer, cited in Com. v. 37. Ahl, 43 Pa. 61. "^ Com. V. Gurley, 45 Pa. 392. ™ Hellings v. Directors of Poor, 15 "* Com. V. Walker, 2 Pa. Dist. R. 727. Pa. 409. '^ Sheffer v. Rempuhlicam, 3 Yeates, '■'- Philippi v. Com. 18 Pa. 116. 39; Addis v. Com. 4 Binn. 541. "^ B«cfc.? County Directors of Poor v. '*■ Addis V. Com. 4 Binn. 541 ; Com. Dungan, 64 Pa. 402. V. Pintard, 1 Browne (Pa.) 59; Sim- ^'' Com. v. Ahl, 43 Pa. 53. mons V. Com. 1 Rawie, 142. '" Duv.can v. Com. 4 Serg. & R. 449. '"Act March 31, 1860, P. L. 382, § ^"Philadelphia v. TJaslitt, 14 Phila. 37 ; Goddard v. Com. 6 Serg. & R. 282 ; 138, 37 Phila. Leg. Int. 386. Com. V. Walker, 2 Pa. Dist. R. 727. 478 CRIMINAL AND PENAL PROCEDURE. [chap. xxiv. is by commitment for failure to comply therewith.^ *^ If the pris- OBer be placed in custody for neglect to pay, he may be held until his discharge under the insolvent laws is obtained. This he may se- cure after three months have elapsed, imder the act of 1836.^®* After a discharge thus obtained, he cannot be rearrested for failure to pay subsequent instalments.^*® Such a discharge under the in- solvent laws is not obtained where the defendant has remained in jail in execution of another sentence, although the period for which he is confined be more than three months.^"' Instalments accruing after the discharge of the prisoner can be collected only by execution on after-acquired property.^"^ 581. Review of sentence. — ^Where there is no defect in the indict- ment, and the trial has not been erroneous, but the sentence is im- proper, the whole proceeding will not be reversed, but the record will merely be sent back for the passing of a proper judgment.^"* On appeal, objection cannot be taken to the legality of a sentence, where there is nothing on tlie record to show what exception had been taken to it, and the assignment of error does not set forth the sentence it- self.^o* "' Eby V. Burkholder, 17 Serg. & R. 9. The defendant was here convicted of '"' Act June 16, 1836, P. L. 729; Com. adultery and fornication and bastardy, V. Spreoher, 1 Lane. L. Rev. 187; Gom. and his discharge was asked under the V. Ooolc (Pa.) 4 Cent. Rep. 710, S. C. act of June 13, 1883, P. L. 99. 4 W. N. C. 333. ^' Com. v. Dee, 14 Pa. Super, a. 640; ™ Com. V. Dee, 14 Pa. Super. Ct. 640 ; Sellings v. Amey, 1 Whart. 63 ; Com. Com. V. Kyler, 1 Pa. Co. Ct. 159, 17 v. Snyder, 4 Pa. Co. Ct. 261; Com. v. W. N. C. 123; Gom. v. Snyder, 4 Pa. Co. Kyler, 1 Pa. Co. Ct. 159, 17 W. N. C. Ct. 261; Com. v. Cook, 4 W. N. C. 333; 123; Com. v. Gooh (Pa.) 4 Cent. Rep. Com. V. FoMlkner, 3 W. N. C. 540. The 710, S. C. 4 W. N. C. 333. contrary was held in Gom. v. Miller, 3 '^ Drew v. Gom. 1 Whart. 279 ; Beale W. N. C. 301, 34 Phila. Leg. Int. 20, 6 v. Gom. 25 Pa. 11; McGue v. Gom. 78 Luzerne Leg. Reg. 87, 8 Lane. Bar, 201; Pa. 185, 21 Am. Rep. 7; Gom. v. Pres- and in Hemphill's Appeal, 1 Pennyp. ton, 188 Pa. 429, 41 AtJ. 534. 508. '"Com. V. Beale, 19 Pa. Super. Ct ™Com. V. Bird, 2 Pa. Co. Ct. 577. 434. CHAPTEE XXV. APPEALS. 5S2. Kight to appeal. 583. Form of writ. 584. Who may appeal. 585. How taken. 586. When taken, and effect. 587. Separate appeals. 588. Where ratumable. 589. Time of hearing. 590. Waiver of right to appeaL 591. From what judgments. 592. Paper books. 593. Exceptions. 594. Assignments of error. 595. Matters considered on appeal. 596. Matters considered on certiorari. 597. Matters considered in desertion proceedings. 598. Duty in capital cases. 599. Decision of the court. 600. Remittitur. 601. Reargument. 602. Costs on appeal. 003. Appeal to the United States Supreme Court. 582. Right to appeal, i— The statute of Westminster (13 Edw. I. chap. 31), providing for writs of error, did not extend to criminal cases.^ The right to have the record examined by an appellate tri- bunal in criminal trials was first given in 1722.* No power existed to except or to assign errors during the trial until 1856, when it was allowed in murder and manslaughter.* Under this enactment the review was limited to the decisions of the court below on the trial on the points of evidence or law, excepted to by the defendants, and noted and filed of record by the court. ^ By the Penal Code of 1860, writs of error and certiorari in all criminal cases were permitted, in case of special allowance thereof, " For Penal actions, see chapter ' Act November 6, 1856, P. L. 795, § 7. XXXII., post. 'Fife V. Com. 29 Pa. 429. 'Middleton v. Com. 2 Watts, 285. = Act May 22, 1722, 1 Smith's Laws, 131, § 9. 477 478 CRIMINAL AND PENAL PROCEDURE. [chap. xxv. ■within thirty days after sentence pronounced, by the court or one of the judges, or with the consent of the attorney general.® And in 1870 the writ of error in cases of murder and manslaughter was made of right. '^ Provided the appeal was taken within twenty days after sentence.* By the act of 1895 creating a superior court, it was provided that appeal should be of right to this court in all oyer and terminer of- fenses, except felonious homicide, which was made reviewable by the supreme court, and that quarter sessions offenses should be heard by the same tribunal, if specially allowed.' By subsequent legislation, the necessity for an allocatur in any criminal case was done away with.^" Provision was ma.de by the same acts for a remission of the case to the proper appellate court in case the appeal was improperly taken.^^ Appeals from the superior to the supreme court may be taken with- in three months after judgment. -"^ In such case a special allowaoice must be had, as provided by the rules of the supreme court^^ 583. Form of writ. — By the act of 1S89 it was provided that all appellate proceedings theretofore taken by writ of error, appeal, or certiorari should thereafter be taken in a proceeding to be called an appeal.^* This legislation doe^ not affect the modes of reviewing eases in use prior to this enactment ; the only change is that now they are called by the same name.^® 584. Who may appeal. — Ordinarily, a criminal case is reviewed upon behalf of the defendant. After a conviction he has a right to complain of errors which have resulted in a verdict of guilty. But a joint defendant has no standing to complain of the overruling of the plea of former conviction of a eodefendant.-'® Ordinarily the commonwealth has no standing to object to errors committed upon the trial of a criminal case. The right to file a bill of exceptions is given, however, in prosecutions for nuisance and "Act March 31, 1860, P. L. 427, §§ "Act May 19, 1897, P. L. 67, § 4. 33, 59. "Rule 16, of the supreme court. 'Act February 16, 1870, P. L. 15, § "Act May 9, 1889, P. L. 158, § 1. 1; lUaffirmed in Pa. Const, art. 5, § 24. "Rand v. King, 134 Pa. 641, 19 Atl. ■Act March 24, 1877, P. L. 40, § 1. 806; Com. v. Bird, 144 Pa. 194, 22 Atl. "Act June 24, 1895, p. 212, § 7, 877; Com. v. Rogers, 15 Pa. Super. Ct. Clauses A and B. 461; Com. v. HoUinger, 16 Pa. Super. "Act May 19, 1897, P. L. 67. Ct. 199, 18 Lane. L. Rev. 110. "Act June 24, 1895, P. L. 212, § 9; ^' Com. v. Doughty, 139 Pa. 383, 21 Re Shoemaker, 175 Pa. 159, 34 Atl. Atl. 228. 627; Com. v. Dunham, 174 Pa. 436, 34 Atl. 329. §§ 585, 580] APPEALS. 479 forcible entry and detainer.*^ And though an appeal may be taken in such cases, and in case of error the judgment reversed and a new trial awarded, yet it seems that the lower court may not do so where convinced of its own error.^^^ Except in cases mentioned there is no power of the commonwealth to except and have the rulings of the court reviewed where the defendant has been acquitted.^** But the alleged error of the court in quashing an indictment is re- viewable,^® or where the judgment is arrested by the court.^° When an appeal is taken by the commonwealth, it will be presumed to be on the official responsibility of the district attorney, though he does not appear at the hearing.^^ 585. How taken. — An appeal from a final judgment must be sup- ported by an affidavit setting forth that such appeal is not taken for the purpose of delay, but because appellant believes he has suffered injustice by the sentence from which he appeals. ^^ Bail must be given satisfactory to the clerk as security for costs.^^ Prior to the act of 1895 amended by the act of 1897, a special allocatur was required in case of appeal by the defendant, except in homicide, which had been provided for by the act of 1870. As the necessity therefor has been abolished, it would be useless to refer to the cases respecting such allowance. It had never been reqiiired in case of appeal by the commonv/ealth.^* 586. When taken, and eifect. — Appeals by the defendant must be taken within six months after sentence in all cases, and shall not act as a supersedeas unless taken within three weeks from the entry of the sentence, and not then, unless so ordered by the court below, or the appellate court, or any judge thereof, either by general rule or special order, and upon such terms as may be required by the court or judge granting the order of supersedeas.^^ But in capital offenses "Act May 19, 1874, P. L. 219, § I; McHale, 97 Pa. 397, 39 Am. Rep. 808; Com. V. Bradney, 126 Pa. 199, 17 Atl. Com. v. Haas, 57 Pa. 443. 600; Com. v. Cassell, 1 Pa. Super. Ct. ^ Com. v. Curry, 4 Pa. Super. Ct. 476, 38 W. N. C. 213; Cmn. v. Uc- 356, 40 W. N. C. 369; Com. v. Heilces, Naugher, 131 Pa. 55, 18 Atl. 934. 26 Pa. 513; Com. v. Wallace, 114 Pa. "a Com. V. Wallace, 7 Pa. Super. Ct. 405, 60 Am. Rep. 353, 6 Atl. 685. 405, 42 W. N. C. 187. ^ Com. v. Sober, 15 Pa. Super. Ct. "'(7om. V. Colle, 9 Pa. Super. Ct. 215, 520. 43 W. N. C. 455; Com. v. Stillwagon, ^Act May 19, 1897, P. L. 67, § 1. 13 Pa. Super. Ct. 547; Com. v. Stevm- ='Aet May 19, 1897, P. L. 67, § 5. Ung, 156 Pa. 400, 27 Atl. 297 (not de- ''Com. v. Capp, 48 Pa. 53; Com. v. cided whether it could be where the Wallace, 114 Pa. 405, 60 Am. Rep. 353, court directed an acquittal and the 6 Atl. 685; Com. v. Cassell, 1 Pa. commonwealth moves for a new trial). Super. Ct. 476, 38 W. N. C. 213. "Com. V. Wallace, 114 Pa. 405, 60 ^Aot May 19, 1897, P. L. 67, §§ 4, 12. Am. Rep. 353, 6 Atl. 685; Com. v. Soler, 15 Pa. Super. Ct. 520; Com. v. 480 CRIMINAL AND PENAL PKOCBDURE. [chap. xxt. the writ of error acrts as a stay of execution,** if taken out within three weeks. An appeal taken after that time does not act as a stay, even in capital cases.'*^ Where the commonwealth appeals after a quashing of the indict- ment by the defendants, it is within the discretion of the court to hold the defendants to bail during its pendency, or to discharge them from custody.** 587. Separate appeals. — Where two indictments have been tried to- gether, and separate verdicts and sentences entered, it is necessary that a separate appeal be taken from each judgment.*^ 588. Where returnable. — The appeal is returnable to the place of sitting of the court in the district where taken, but the record may be certified to another district, if the court be not in session there at the time at which the appeal is to be heard.^" 589. Time of hearing. — The time of hearing is fixed at the fifth Monday after the issuing of the writ, if the court shall be then in session, and such cases shall be placed at the head of the list for ar- gument.^^ 590. Waiver of right to appeal. — The defendant may waive his right to appeal by failure to do so in time, and ordinarily by an agree- ment not to do so, though such has been held not to be binding in a capital case.** But the right is not waived after judgment arrested by an attempt of the commonwealth to convict on a new indictment for the same offense.*^ 591. From what judgments. — Appeals cannot in any case be taken from interlocutory judgments, but only after sentence passed.^* The quashing of an indictment is a final judgment,'" but an exception does not lie to a refusal of a motion to quash,^" or to a refusal to hear evidence in support of the motion.''^ So an order in habeas corpus proceedings, discharging the relator from the custody of the deputy sheriff, is a final order on which error may be assigned.** ™ Act May 19, 1874, P. L. 219, § 1. Petition, 189 Pa. 517, 42 Atl. 199; "" Com. V. Hill, 185 Pa. 385, 39 Atl. Marsh v. Com. 16 Serg. & R. 319; Com. 1055. V. Penrod, 1 W. N. C. C5 ; Com. v. Shiv- ^ Com. V. Bartilson, 85 Pa. 482. ers, 15 Pa. Super. Ct. 579. ''Com. V. Schollenlerger, 17 Pa. '^ Com. v. Haas, 57 Pa. 443. Super. Ct. 218. "Com. v. Swallow, 8 Pa. Super. Ct. ™Rule 3, superior court; rule 8, su- 539. preme court; act March 31, 1860, P. L. "Com. v. Both, 8 Pa. Super. Ct. 220. 427, § 60; Hazen v. Com. 23 Pa. 355. ''Com. v. Butler, 19 Pa. Super. Ct. "Rule 3, superior court; rule 8, su- 626; Doyle v. Com. eoc rel. Davis, 107 preme court. Pa. 20, Distinguished from Com. ex rel. »" Smith V. Com. 14 Serg. & R. 69. Parker v. Blatt, 165 Pa. 213, 30 Atl. ™ Com. V. Eeilces, 26 Pa. 513. 674, because in the latter case there was "Com. V. Ruth, 104 Pa. 294; Quay's no final order. § 598] APPEALS. 481 592. Paper books. — Tlie form and material to be contained in pa- per books, as well as the time of service thereof, are regulated by rules of court.^® On petition of indigent defendants, permission may be given to submit the stenographer's copy of evidence in lieu of printing the same in the appendix.*" 593. Exceptions. — At conmion lavi^ the defendant has no right to a bill of exceptions in criminal cases.*^ By the act of 1860, bills of exceptions were allowed the defendant in trials for murder and man- slaughter, and it was made the duty of the court to give an opinion in writing on points submitted, when so requested.*^ By the act of 1874 exceptions were allowed generally to the defendant, and to the commonwealth in cases of nuisance or forcible entry and detainer,** but no provision was made by this act for filing points or the charge, and exceptions must be sealed as in civil cases.** The formal bill of exceptions at common law is not often now signed and sealed, though such practice is recommended when applicable.*^ Exceptions must be taken at the proper time, to be of avail.*^ So, an exception to the charge and request that it be filed of record must be made before verdict.*'' And the objections must be entered with- in the time fixed by the rules of court, if the judge insists, notwith- standing a waiver by the district attorney.*^ If no objections be made at the time of trial, an exception allowed some months after- ward has no efiicacy and cannot avail, even if it has merit.*^ If there has been a failure to except the appellate court cannot pass on the alleged error, but will merely examine the regularity of the rec- ord.^" Advantage of errors in the charge can be taken only if ob- jection is made at the proper time,®^ or to the remarks by eounsel,^^ "' Rules 3, 18, 19, and 24, superior " Com. v. Vam, Earn, 188 Pa. 143, 41 court; rules 8, 9, 10, and 19, supreme Atl. 469. court. °° Sampson v. Com. 5 Watts & S. 385 ; "Com. V. McMillan,, 144 Pa. 610, 22 McMeen v. Com. 114 Pa. 300, 9 Atl. Atl. 1029. See note, p. 611. 878; Grant v. Com. 71 Pa. 495; Hop- "■Middleton v. Com. 2 Watts, 285; fcms v. Com. 50 Pa. 9, 88 Am. Dec. 518; Schoeppe v. Com. 65 Pa. 51; Dromgold Weaver v. Com. 29 Pa. 445; Com. v. V. Com. 1 W. N. C. 454, 32 Phila. Leg. Spencer, 6 Pa. Super. Ct. 256; Fife v. Int 320. Com. 29 Pa. 429 ; Com. v. Ware, 137 Pa. «Act March 31, 1860, P. L. 427, §§ 465, 20 Atl. 803; Com. v. Duft, 7 Pa. 57^ 58. Super. Ct. 415; Com. v. Bunnell, 20 Pa. '"Act May 19, 1874, P. L. 219. Super. Ct. 51; Com. v. McGowan, 189 "Baim.es v. Com. 99 Pa. 410. Pa. 641, 42 Atl. 365; Com. v. Wilson, *^Rn\e 22, supremo court; Com. v. 186 Pa. 1, 40 Atl. 283. House, 3 Pa. Super. Ct. 304. "Grant v. Com. 71 Pa. 495; Com. v. " Travis v. Com. 13 W. N C. 353, Af- Eibert, 144 Pa. 413, 22 Atl. 1031. firmed in 106 Pa. 597. " Com. v. Weler, 167 Pa. 153, 31 Atl. "Com. V. Bradley, 16 Pa. Super. Ct. 481; Com. v. Church, 17 Pa. Super. Ct. 561. 39. « Haines v. Com. 99 Pa. 410. Pa. Crim. Proc. — 31. 482 CRIMINAL AND PENAL PROCEDURE. [chak. xxt. or to admission or rejection of testimony,^^ or to the sentence of the court.''* It seems that no exception will lie to the refusal to quash an indictment, but defendant is left to his remedy by demurrer, or motion for arrest of judgment.^^ And the court may refuse to grant an exception upon the refusal to receive testimony in support of the motion to quash; and on appeal it will be presumed to have acted regularly.^® 594. Assignments of error. — Assignments of error are based on the exceptions taken in the court below. Ordinarily, these appear by the stenographer's notes, if such were taken, but if those of the judge differ, the latter must be considered as correct.^'' If nothing ap- pears on the record to show that an exception was taken, the assign- ment cannot be considered f^ or if not allowed until after trial.^® An assignment that 1he evidence is insufficient to sustain the judg- ment will be dismissed."" JSTor can a verdict on an indictment for false pretenses be sustained under § 3 of the crimes act of 1860, be- cause the evidence shows it to be larceny, where the evidence is not before the appellate court. *^ Assignments of error to remarks of counsel must be based on the record, and not upon the notes of a private stenographer for the de- fendant.*^ In assignments of error to the charge of the court, or to answers to points, the part complained of must be quoted iotidem verbis in the assignment."^ The charge must be made part of the record,®* and the objectionable part quoted.®" Error cannot be assigned to it as a whole."" It is improper to connect two paragraphs in the assign- ment, as if joined in the charge, when they are not f or to take iso- lated sentences from the charge."* Assignments to the admission or rejection of evidence must quote "Johnson v. Com. 115 Pa. 369, 9 Atl. « Com. v. Weler, 167 Pa. 153, 31 AU. 78; Com. v. Spencer, 6 Pa. Super. Ct. 481. 256; Com. v. Wilson, 186 Pa. 1, 40 Atl. "'Rule 15, superior court; rule 30, su- 283. preme court. " Com. V. Beale, 19 Pa. Super. Ct. " Com. v. Riiert, 144 Pa. 413, 22 Atl. 434. 1031. "'Com. V. Simllow, 8 Pa. Super..Ct. 539. °» Com. v. Heidler, 191 Pa. 375, 43 " Com. V. Roth, 8 Pa. Super. Ct. 220. Atl. 211. "' Com. V. Fitmpatrick, 1 Pa. Super. ™ Com. v. Devvne, 18 Pa. Super. Ct. Ct. 518, 38 W. N. C. 156. 431; Com. v. Sivaync, 1 Pa. Super. Ct. "Com. V. Wilson, 180 Pa. 1, 40 Atl. 547. 283; Omit v. Com. 21 Pa. 426. "^ Com. v. Eckerd, 174 Pa. 137, 34 "Com. V. Van Horn, 188 Pa. 143, 41 Atl. 305. Atl. 46P. See also Exceptions, § 593, ™ Com. v. Zappe, 153 Pa. 498, 26 Atl. supra. 16; Com. v. Sieayne, 1 Pa. Super. Ct. °° Sampson v. Com. 5 Watts & S. 385; 547; Com. v. Orr, 138 Pa. 270, 20 Atl. Com. V. Zwppe, 153 Pa. 498, 20 Atl. 16. 866; Com. v. Warner, 13 Pa. Super. Ct. " Com. V. Moore, 99 Pa, 570. 461. § 595] • APPEAJ-S. 483 the question or offers, the ruling of the court thereon, and the testi- mony or evidence admitted."* They must quote it in full, and not re- fer to another part of the paper book for the matter which should be therein contained.'''' The assignment of the admission of testimony must contain a sufficient statement as to what precedes to make it self- explanatory and to show fully on what the alleged errors are based. '^^ And it is incomplete if the answer to the question objected to be not set forth.''^ When the error consists in the admission or rejection of a writing, a full copy of the writing must be given. ''^ Thus, an as- signment is defective which fails to set forth a letter offered.''* Each error relied on must be assigned particularly or by itself.''' And it is vicious to mingle in one assignment objections to the charge of the court and a ruling on rejected evidence.^® 595. Matters considered on appeal. — The court may review the quashing of an indictment on an appeal by the commonwealth.'''' But it is doubtful whether an exception by the defendant lies to a refusal to quash.''* But it has been said that it could be considered if the reasons for the motion to quash were made to appear by the record.'" It has been said generally that the overruling of a motion for a new trial is not reviewable.'*" What is meant is that the refusal is discretionary with the court below, and its action will not constitute reversible error, unless the refusal be shown to amount to a clear abuse of discretion.*^ In such case the assignment must be based upon an exception taken to the refusal of the court to grant a new trial,*^ and cannot be reveiwed unless the testimony, charge, and ex- ceptions be brought before the appellate tribunal. Even though the "Rule 16, superior court; rule 31, su- Sober, 15 Pa. Super. Ct. 520; Com. v. preme court. McHale, 97 Pa. 397, 39 Am. Rep. 808; '"Com. V. Werntz, 1^1 Pa. 591, 29 Coin. v. Haas, 57 Pa. 443; Com. v. Wil- Atl 272; Com. v. Mitchell, 6 Pa. Super, lia/nis, 149 Pa. 54, 24 Atl. 158. Ct. 369, 41 W. N. C. 455. '"Com. v. Both, 8 Pa. Super. Ct. 220; ^'^Com V. House, 3 Pa. Super. Ct. Com. v. Swallow, 8 Pa. Super. Ct. 539. 304; Eultz v. Com. 3 Grant Cas. 61; '"Com. v. Kolb, 13 Pa. Super. Ct. 347. Com. V. Hazlett, 14 Pa. Super. Ct. 352. "■ Howser v. Com. 51 Pa. 332 ; McGin- '"Com.v. Smith, 2 Pa. Super. Ct. 474, nis v. Com. 102 Pa. 66; Alexander v. 39 W. N. C. 181. Com. 105 Pa. 1; Com. v. Fitzpatrick, '= Rule 16, superior court; rule 31, su- 1 Pa. Super. Ct. 518, 38 W. N. C. 156. preme court. " C'o™- ■*'• Roddy, 184 Pa. 274, 39 Atl. "Com. V. Johnston, 5 Pa. Super. Ct. 211; McManus v. Com. 91 Pa. 57; Cath- 585 41 W N C 92, 28 Pittsb. L. J. N. cart v. Com. 37 Pa. 108; McClain v. S i4x. ' ' Com. 110 Pa. 263, 1 Atl. 45; Gray v. "Rule 14, superior court; rule 29, Com. 101 Pa. 380, 47 Am. Rep 733; supreme court. Com. v. Heidler, 191 Pa. 375, 43 ,\tl. ™Gom V Light, 10 Pa. Super. Ct. 66, 211; Com. v. Mitchell, 6 Pa. Super. Ct. Affirmed in 195 Pa. 220, 45 Atl. 933. 369, 41 W. N. C. 455. "Com. V. Wallace, 114 Pa. 405, 60 ^ Com. v. Spencer, 6 Pa. Super. Ct. Am. Rep, 353, 6 Atl. 685; Com. v. 256. 484 CRDilNAL AND PENAL PROCEDURE. [chap. xxv. failure to do so is the fault of the court, who employed no stenog- rapher, the rule nmst apply.** The denial of a motion in arrest of judgment is not discretionary, and is reviewable, but reasons there- for, based on insufficient evidence, which are really reasons for a new trial, will be treated as if the motion had been of the latter charac- ter.** Assignments based upon the exercise of other discretionary powers of the lower court will be sustained likewise, only if there be a clear abu£e sho^HTi ; e. g., a refusal of a continuance f^ or a refusal to com- pel the commonwealth to call a witness f^ or a refusal to appoint a commission to determine the question of present insanity of one un- der sentence of death.*^ The refusal to discharge under habeas cor- pus proceedings or under the two-term rule, which is in its nature sim- ilar, is not the subject of a writ of error, and cannot be reviewed, ex- cept when another writ of habsas corpus issued out of appellate court.** But where there has been a final discharge of the prisoner, the person from whose custody he is released may appeal,*® but the discharge must be final."** The judgment cannot be sustained if the pleadings are insufficient to support the same, and in such case the appellate court vsdll re- verse.®^ N^ot only must it appear that error has been committed, but that it tended to prejudice the defendant; if it be merely trivial or harm- less, the court will not reverse.®^ 596. Matters considered on certiorari. — Eor certiorari to remove pending proceedings, see chapter ii., § 13, ante. Though all proceedings are removed to the appellate court since the act of 1889 by a writ called an appeal, such will be treated as a certiorari, if it is in effect such.®* A refusal to remit or modify the forfeiture of a recognizance is treated as such on appeal, and the reg- ularity of the record is alone considered.®* '"Com. V. Du-ff, 7 Pa. Super. Ct. ^ Com. ex rel. Parker v. Blatt, 165 415. Pa. 213, 30 Atl. 675. "Com. V. Fitzpatriek, 1 Pa. Super. '^Perdue v. Com. 96 Pa. 311; Com. v, Ct. 518, 38 W. N. 0. 156. Moore, 99 Pa. 570. "^ Com. V. Buccieri, 153 Pa. 535, 26 "^ Com. v. Craig, 19 Pa. Super. Ct. 81 ; Atl. 245. Com. v. Little, 12 Pa. Super. Ct. 636; *> Onofri v. Com. 20 W. N. C. 264. Com. v. Biddle, 200 Pa. 640, 50 Atl. "Com. V. BoAfS, 195 Pa. 270, 45 Atl. 264; Com. v. Van Horn, 188 Pa. 143, 41 728 ; Com. v. Wireiaek, 192 Pa. 150, 44 Atl. 469 ; Com. v. Kay, 14 Pa. Super. Atl. 1102 (mandamus). Ct. 376. " Clark V. Com. 29 Pa. 129. " See § 583, supra. "Doyle V. Com. eco rel. Davis, 107 Pa. " Bross v. Com. 71 Pa. 262; Com. v. 20; Com. em rel. Smith v. Butler, 19 OUendcr, 135 Pa. 536, 19 Atl. 1057; Pa. Super. Ct. 626. Com. v. Bird, 144 Pa. 194, 22 AU. 877. § 597] APPEALS. 485 On certiorari the record alone can be considered. ^^ An opinion filed at the request of the commonwealth in quashing an indictment is not part of the record ;®® nor an opinion on a motion for a new trial f nor an aiEdavit in support of a motion in arrest of judgment f^ nor the disposition of a motion in arrest of judgment f^ nor matters embodied in reasons for new trial ;■""* nor remarks of the counsel for commonwealth not objected to;^°^ nor a paper returned by the jury where its verdict is recorded.-^"" The record cannot be contradicted by minutes of a clerk ;^*"^ nor can assignments be based upon averments of fact which contradict the record.-^"* If nothing to the contrary appears thereon, the proceeding will be presumed to have been regular.*"® Though clerical errors appear, if corrected they will not be ground for reversal. '"^ But if there be substantial irregularities, the pro- ceedings will be set aside.*"'' Matters of evidence may be brought upon the record by objection and exception as permitted by the act of 1ST4."8 597. Matters considered in desertion proceedings. — In appeals in de- sertion proceedings, the merits of the case will not be examined, but the regularity of the record alone mil be considered.*"" The judg- ment on the finding's of fact of the judge in such cases is as conclu- sive as the findings -of a jury,**" and his determination upon the merits will not be reviewed.*** The same rule applies where the appeal is from an order refusing "Com. V. Ourley, 45 Pa. 392; Com. '^^ Dunn v. Com. 6 Pa. 384; Prvm v. V. Gillespie, 146 Pa. 546, 23 Atl. 393; Com. 18 Pa. 103. Vanpool V. Com. 13 Pa. 391. "» Com. v. Green, 126 Pa. 531, 17 Atl. "Com. V. Church, 1 Pa. St. 105, 44 878. Am. Dec. 112. ^Barnes v. Com. 2 Pennyp. 506, 11 "Girts V. Com. 22 Pa. 351; Com. v. W. N. C. 375; Com. v. James, 142 Pa. Duif, 7 Pa. Super. Ct. 415. 32, 21 Atl. 805; Com. v. Tragle, 4 Pa. ''Alexander v. Com. 105 Pa. 1. Super. Ct. 159, 40 W. N. C. 350; Com. "Com. V. Craig, 19 Pa. Super. Ct. 81. v. Jones, 90 Pa. 431; Overseers of the '"" Com. V. Eisenhower, 181 Pa. 470, Poor v. Smith, 2 Serg. & R. 363 ; Com. 37 Atl. 521. V. Rogers, 15 Pa. Super. Ct. 461 ; Com. ^"^Fulmer v. Com. 97 Pa. 503; Com. v. Bollinger, 16 Pa. Super. Ct. 199, 18 V. Weber, 167 Pa. 153, 31 Atl. 481; Lane. L. Rev. 110. Com. V. 'Nicely, 130 Pa. 261, 18 Atl. 737. "° Com. v. Eaylow, 17 Pa. Super. Ct. "^ Girts V. Com. 22 Pa. 351. 541. ™ Taylor v. Com. 44 Pa. 131. "' Com. v. Smith, 200 Pa. 363, 49 Atl. "" Werfel v. Com. 5 Binn. 65. 981, Affirming 13 Pa. Super. Ct. 358, in '"" Oathcart v. Com. 37 Pa. 108; Jew- which case Com. v. Richards, 131 Pa. ell V. Com. 22 Pa. 94; Bryan v. Com. 209, 18 Atl. 1007, is explained. There 27 Pa. 284. the merits were considered by agree- ™(7om.. V. Gibbons, 3 Pa. Super. Ct. ment. 408, 39 W. N. C. 565. 486 CRIMINAL AND PENAL PROCEDURE. [chap. xxv. to modify the decree entered in such case,^^* or from a refusal to dis- charge the defendant under the act of 1869.^^* 598. Duty in capital cases. — "In all cases of murder in the first de- gree, removed into the supreme court under the provisions of the 1st section of this act, or now pending in said court, it shall be the duty of the judges thereof to review both the law and the evidence, and to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist ; and if not so proved, then to reverse the judgment and send the same back for a new trial, or to enter such judgment as the laws in this commonwealth re- quire.""^ By virtue of this act of assembly, it is the duty of the court to de- termine whether sufficient evidence was submitted, which, if believed by the jury, would have made out murder in the first degree. The court will not assume the functions of jurors, and pass upon the cred- ibility of witnesses, nor on the apparent weight of the evidence.* ^^ 599. Decision of the court. — By the act of 1722 the appellate tri- bunal could affirm or reverse. By the act of 1836 it could affirm, re- verse, or modify. By the act of ISfiO it was provided, "upon the af- firmance of the supreme court of the judgment in any case, the same shall be enforced pursuant to the directions of the judgment so af- firmed, and the said court will make any further order requisite for carrying the same into effect; and if the supreme court shall reverse any judgment, they shall r6mand the record with their opinion, set- ting forth the causes of reversal, to the proper court, for further pro- ceedings, "^i^ By the act of 1891 the appellate court is given power in all cases to affirm, reverse, amend, or modify a judgment and to enter such judgment as it may deem proper and just, VTithout returning the record for amendment or modification to the court below, and may order a verdict and judgment to be set aside and a new trial had.**'^ This act is constitutional.**® The decree of the lower court may be affirmed, or it may be re- ^'^Com. V. Ha/rt, 12 Pa. Super. Ct. ""McGinnis v. Com. 102 Pa. 66; 605; Com. V. Jones, 90 Pa. 431. Gi-ant v. Com. 71 Pa. 495; Staup v. "' Com. V. Baldwin, 149 Pa. 305, 24 Com. 74 Pa. 458 ; Com. v. Morrison, 193 Atl. 283; Re Fletterer, 2 W. N. C. 650. Pa. 613, 44 Atl. 913; Jones v. Com. 75 "•Act February 15, 1870, P. L. 15, § Pa. 405; Com. v. Ware, 137 Pa. 465, 20 2. This act was passed to meet the case Atl. 806. of Schoeppe v. Com. 65 Pa. 51, in which ""Act March 31, 1860, P. L. 427, § the supreme court had refused to in- 01. terfere. Subsequently a special act of '" Act May 20, 1891, P. L. 101, § 2. assembly was passed, allowing the de- "' Smith v. Times Puh. Co. 178 Pa. fendant a new trial, and he was ac- 481, 35 L. R. A. 819, 36 Atl. 296. quitted. |§ 600-603] APPEALS. 487 versed,^^* and a new trial may be awarded ;^^° or the judgment of the court below may be modified ;^'^^ or the record may be remitted for the passing of the proper sentence. -"^^ In case of the affirmance of a judgn.ent, it is not necessary that the sentence passed be reformed, but it will commence from the time of affirmance, where a superse- deas has been granted.^^^ 600. Remittitur. — At the expiration of ten days from the final de- cision of any cause, the prothonotary of the appellate court shall send back the record with a remittitur and a copy of the opinion to the court from which it originally came, imless other steps be taken which shall reqiiire detention.^^* 601. Reargument. — A reargument may be allowed, if sufficient cause be shown by petition filed within ten days after the decision of the court. •'^^ The judgment of the court will be opened only where mistake has been committed which justice requires to be rectified.^^® 602. Costs on appeal. — There is no power in the lower court to or- der that the costs of printing the paper book of an indigent defend- ant be paid by the county,^^^ nor can the supreme court so order.^** By the act of 1887 an allowance is to be made to the district at- torney for prosecuting an appeal.'^* This amount is to be fixed by the lower, and not the supreme, court.^*" 603. Appeal to the United States Supreme Court. — A denial by the state court of any title, right, privilege, or immunity claimed under the United States Constitution, treaty, or statute will not give the Supreme Court of the United States jurisdiction, unless the same is especially set up and claimed at the proper time and in the proper way.^*^ ""Perdue v. Com. 96 Pa. 311; Com. '^ Com. v. Cochran, 25 Pa. Co. Ct. 58. V. Moore, 99 Pa. 570; Jackson v. Com. '='Act May 19, 1897, P. L. 67, § 20. 2 Bini). 79. ^'' Rule 36, superior court; rule 15, "" Com. V. Switzer, 134 Pa. 383, 19 supreme court. Atl. 681; Stauv v. Com. 74 Pa. 458. ™/ScAoeppe v. Com. 65 Pa. 51. ^"^ White V. Com. 3 Brewst. (Pa.) 30; '^^ Com. v. Wilson, 2 Montg. Co. L. Daniels v. Com. 7 Pa. 371; Mills v. Eep. 119. Com. 13 Pa. 634; Clellans v. Com. 8 ^'^ Com. v. Buccieri, 153 Pa. 570, 26 Pa. 223. Atl. 245. ^"^ Jones V. Com. 75 Pa. 403; Com. v. '="Act May 19, 1887, P. L. 138, § 2. Preston, 188 Pa. 429, 41 Atl. 534; Mo- ^^ Com. v. Morningstar, 144 Pa. 103, Cue V. Com. 78 Pa. 185, 21 Am. Eep. 7; 22 Atl. 867. Beale v. Com. 25 Pa. 11; Johnson v. '"Ba; parte Spies, 35 Pittsb. L. J. Com. 24 Pa. 386; Drew v. Com. 1 215; U. S. Rev. Stat. § 709; U. S. Whart. 279. Comp. Stat. 1901, p. 60. CHAPTEK XXVL COSTS. 604. Liability of prosecutor. 605. On ignored bills. 606. Imposition by petit jury on prosecutor. 607. On peace officers. 608. Where district attorney advised. 609. Where indictment defective. 610. 'Where joint defendants. 611. For what costs. 612. Finding of jury. 613. When liability commences. 614. Liability of defendant for costs. 015. Joint defendants. 616. Where court has no jurisdiction. 617. Where indictment is defective. 618. Where first indictment quashed. 619. In felonies. 620. Where defendant is indicted in his oflScial capacity. 621. Division between prosecutor and defendant. 622. Sentence of prosecutor or defendant. 623. Liability of county for costs. 624. Discharged cases. 625. Imposition by jury in misdemeanors. 626. Imposition by jury in felonies. 627. Where indictment quashed. 628. Where acquittal by consent. 629. Where acquittal and no disposition of costs. 630. When liability commences under act of 1887. 631. Under prior acts. 632. Defendant's witnesses. 633. Supervision of court over costs. 634. Reimbursement of county for costs paid. 604. liability of prosecutor. — Neither the prosecutor nor the com- monwealth was liable for the payment of costs in criminal cases at conmion law. The defendant was bo^md to pay them, whether foimd guilty or not guilty, his only remedy in case of innocence being the right to an action for malicious prosecution.^ To impose, therefore, this liability, some statutory authority must be given.* ^ Strein V. Zeigler, 1 Wsitta & S. 259. Serg. & R. 200; Com. v. Tilghman, ' Irvnn v. Northumberland County, 1 4 Serg. & R. 127 ; Com. v. Bargesheimer, Serg. & R. 505; Com. v. Johrtson, 5 1 Ashm. (Pa.) 413. 483 g e05] COSTS." 489 Such legislation is found in various acts of assembly, and is consol- idated in the Penal Code of 1860. "In all prosecutions, cases of fel- ony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prose- cution ; and in all cases of acquittals by the petit j ary on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county or the prosecutor or the defend- ant shall pay the costs, or whether the same shall be apportioned be- tween the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict ; and whenever the jury shall determine, as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days."^ 605. On ignored bills. — The power is thus given to the grand jury to impose costs upon the prosecutor in case of misdemeanors. Such power is not to be exercised capriciously ; and by virtue of the inher- ent power in the court to prevent oppression and wrong, the finding may be set aside.* Thus, where the bill has been ignored, where three witnesses have sworn positively to the commission of the crime, it will be done;' or where the bill was ignored without examining the commonwealth's witnesses in full ;' or where the prosecutor is a peace officer and acted in good faith.'^ But the court will not set aside the finding unless it clearly appears that there is oppression.* And the court cannot interfere when it does not have in its possession the same fact as did the grand jury.® In imposing costs the grand jury is not limited to the person marked on the bill of indictment as the prose- cutor, but may find who is the actual prosecutor.^" But an impo- "Aot March 31, 1860, P. L. 427, § ''Com. v. Grim, 1 Pa. Co. Ct. 40, 3 62. This section is taken from the Kulp, 400; Com. v. Qreen, 16 W. N. C. act of Decem'jer 8, 1804, 4 Smith's 16, 2 Lane. L. Rev. 164; Com. v. Neely, Laws, 204, and the act of April 12, 4 Del. Co. Rep. 7, 6 Lane. L. Rev. 194. J859, P. L. 528. 'Com. v. Witmer, 5 York Legal Ree- ' Connolly v. Ladka-wamma County, 1 ord, 43, 6 Kulp, 304; Com. v. Sharp, 7 Pa. Co. Ct. 26; Com. v. Fwrrell, 2 Ches- Lane. L. Rev. 58. ter Co. Rep. 381 ; Com. v. Mundis, 1 ' Com. v. Huddell, 10 Pa. Co. Ct. 548, York Legal Record, 4, 2 Chester Co. 1 Pa. Dist. R. 132. Bep. 381. "° Com. v. Oilgallon, 1 Lack. Legal " Com. V. Dittus, 17 Lane. L. Rev. 127. News, 172, 12 Lane. L. Rev. 263. 'Com. v. Stiffel, 7 Lane. L. Rev. 193. 490 CRIMINAL AND PENAL PROCEDURE. [chap, xxvl sition of costs on a third party who has not appeared, or who has not been asked to appear, will be set aside. '^ Until 1897, no power existed in the grand jury to impose costs up- on the prosecutor in case of a felony. In that year it was provided that in a prosecution for lajceny where the value of the goods and chattels alleged to have been stolen should be less than $10, or where the prosecution was for assault and battery with intent to maim, dis- figure, or disable, or commit the crime of murder, or where the bill of indictment in cases of assault or assault and battery charges the de- fendant with a felony, if the bill of indictment shall be returned ig- noramus, the grand jury returning the same, if it shall believe from the evidence that the prosecutor had no reasonable ground for making the charge of felony, may place the costs upon the prosecu- tor.'^ Under this act the grand jury is the judge of the value of the goods stolen, and need not embody the finding of the value in its return. It is immaterial that the indictment alleged a greater value.'^ The liability of the prosecutor does not exist until sentence is passed,^* and such judgment makes the prosecutor responsible for the costs of prosecution, but not for the defendant's bill of oosts.*^ By the act of March 20, 1818,'® he becomes liable to pay $4 to the county, with the other costs, unless the jury directs otherwise. 606. Imposition by petit jury on prosecutor. — By § 62 of the act of 1860 (see § 604, supra), the petit jury may impose costs upon the prosecutor. It is proper for the jury so to do, if it find that the pros- ecution was brought from improper motives, spite, or ill will.'^ The costs may be put upon the real prosecutor whose name is indorsed on the bill of indictment, or he may be ignored and the actual pros- ecutor be ordered to pay.'^ But such a verdict as to costs must not be given against a mere witness, when there is no evidence to show that he was the prosecutor ;'® nor should they be imposed on one not called as a witness,^" there being no evidence that he was the prose- cutor. But if the witness avows on the stand that he js such, it will " Com. V. Madden, 11 Pa. Co. Ci. 459, " Com. v. O'Qrady, 4 Pa. Dist. R. 732. 1 Pa. Dist. R. 129, 6 York Legal Record, " Com. v. Holop, 23 Pa. Co. Ct. 417 28, 8 Montg. Co. L. Rep. 124, 9 Lane. Com. v. Anderson, 17 Pa. Co. Ct. 89 L. Rev. 253 ; Com. v. Shaub, 7 Larc. L. Com. v. Ream, 1 Pa. Co. Ct. 33 ; Com. v. Rev. 189. Hoopman, 1 York Legal Record, 20 '"Act May 25, 1897, P. L. 89. Com. v. Weber, 7 Lane. L. Rev. 172 ^'Com. V. Ruch, 10 Pa. Dist. R. 648, Com. v. Bennett, 1 Pittab. 261; Com, 14 York Legal Record, 199, 8 Del. Co. v. Murphy, 4 Del. Co. Rep. 229, 1 Lack Rep. 167, 7 Northampton Co. Rep. 368. Jur. 318. "Means'a Estate, 22 Pa. Co. Ct. 131; "Com. v. Ray ward, 4 Del. Co. Repi. Com. V. Thompson, 18 Pa. Co. Ct. 487. 569. "Mecms's Estate, 22 Pa. Co. Ct. 131. "Com., v. Baltzhy, 3 Pa. Co. Ct. 73. "7 Smith's Laws, 86, § 1. §§ 607-610] COSTS. 491 be sufficient,^* or if he admits it en his rule to set aside the ver- dict. '^^ Nor should they be put on an informer, when the informa- tion is honestly, and not maliciously, given. The act of 1897 allows the petit jury to impose costs upon the pros- ecutor in case of acquittal of larceny of goods of less value than $10, or in case of assaults charged as felonies.^* In such case the jury need not assess and return the value of the goods in their verdict.^* 607. On peace officers. — Costs are not to be placed upon peace offi- cers, though their names be indorsed on the bill of indictment as the prosecutors, where they have acted in good faith.^^ But the costs may bo imposed upon the person who gave the information to the of- ficer.^® Agents for the Society for Prevention of Cruelty to Animals are peace officers, and the costs should not be imposed upon them.^'' A policeman who makes information in election cases acts in so do- ing as a private citizen, and all costs imposed may stand.^® 608. Where district attorney advised. — Where the prosecutor acted upon the advice of the district attorney, after a full and fair disclosure of the facts in the case, a verdict placing the costs upon him should be set aside.^® But the rule is otherwise where the facts have not been fairly stated.^" 609. Where indictment defective. — ISTotwithstanding an indictment is so defective that in point of law it does not set out any offense by the defendants, yet, in case of acquittal, the jury may make the pros- ecutor pay the costs.^* But it has been said that the jury possesses no lawful right to put costs upon the prosecutor where the evidence shows that there was a legal offense committed, though technically not set forth in the indictment.'^ 610. Where joint defendants. — Where two defendants are indicted, the one pleading guilty, the other being tried and the jury acquitting, "Com. V. Jackson, 1 Pa. Co. Ct. 38, formation to constable) ; Com. v. Ben- 1 Del. Co. Rep. 80, 13 Lajic. Bar, 59. nett, 1 Pittsb. 261, and cases above " Com. V. Murphy, 4 Del. Co. Rep. mentioned. 229, 1 Lack. Jur. 318. "^ Com. v. Green, 16 W. N. C. 16, 2 =»Act May 25, 1897, P. L. 89; Com. Lane. L. Rev. 164; Com. v. Orim, 1 Pa. V. Vogan, 24 Pa. Co. Ct. 70, 17 Lane. Co. Ct. 40, 3 Kulp, 400. L. Rev. 320. '^ Com. v. Shaum, 17 Lane. L. Rev. '^Com. V. Lore, 21 Pa. Co. Ct. 205. 319, 8 Del. Co. Rep. 50, 14 York Legal " Com. V. Lyons, 2 Lane. Bar, No. 28; Record, 91. Com. V. Beisinger, 1 York Legal Record, " Com. v. Steele, 2 Chester Co. Rep. 8, 1 Chester Co. Rep. 104; Com. v. Hun- 380. ter, 11 Pa. Co. Ct. 637, 1 Pa. Dist. R. '" Beardon v. Pierce, 1 Chester Co. 130, 9 Lane. L. Rev. 155; Com. v. Ben- Rep. 323. nett, 1 Pittsb. 261. See Com. v. Barr, " Com. v. Harkness, 4 Binn. 194. Q. S. Lane. Jan. 29, 1848. " Com. v. Hunter, 11 Pa. Co. Ct. 637, " Com. V. Doyle, 16 Pa. Super. Ct. 1 Pa. Diat. R. 130, 9 Lane. L. Rev. 155. 171 (here, put on justice who gave in- 492 CRIMINAL AND PENAL PROCEDURE. [chap. xxvi. the costs cannot be put on the prosecutor. Such a case does not come within § 62 of the act of 1860, since both of the defendants are not acquitted.^* 611. For what costs. — Where the petit jury determines that the prosecutor shall pay the costs, he becomes liable for the defendant's bill.^* Or whcxc it orders that the costs be divided, the defendant's bill for his subpcenas, serving the same, and the attendance of his ma- terial and necessary witnesses shall be included.'^ If there be two indictments against the defendant, on one of which he is convicted, and on the other of which the costs are divided, the prosecutor may file all of his witnesses' costs in the former case.^® 612. Finding of jury. — If the jury direct the prosecutor to pay the costs, or any portion of them, it is insufficient unless the verdict name him.^^ But to state the name indorsed on the bill in the finding is suf- ficient, though the fact that such person is the prosecutor is not set forth.^® If the jury acquit and make no finding as to costs, the pros- ecutor is not liable.*^ 613. When liability commences. — Liability does not commence un- til there is a sentence upon this verdict.'"' 614. Liability of defendant for costs. — At common law the defend- ant was responsible for costs, whether convicted or acquitted. By va- rious acts of assembly relief has been granted where an acquittal takes place. In such case the defendant is relieved unless costs be imposed upon him in the verdict of the jury. If the grand jury ignores, it has no power to place the costs on the defendant. If the petit jury acquits of misdemeanors, it may place all of them upon him, or it may divide with the prosecutor.*^ By the act of 1897 it may also do so where it acquits of larceny of goods under $10, or assaults charged as felonies which are not such.*^ Where from the evidence the jury may infer that the defendant is in some fault, or has not sufficiently explained away the charge, or is shielding the real perpetrator of the crime, it is proper to impose "Com. V. Edwards, 135 Pa. 474, 19 "Com. v. Zell, 14 Lane. L. Rev. 168; Atl. 1064. Com. v. Garr, Q. S. Phila. October 23, "Act March 31, 1860, P. L. 427, § 1847. 63; Com. v. Curren, 2 Chester Co. Rep. '°8trein v. Zeigler, 1 Watts & S. 259. 393, 9 Phila. 623, 29 Phila. Leg. Int. 53. '^ Means' s Estate, 22 Pa. Co. Ct. 131; "■Act April 9, 1873, P. L. 67, § 1. Com. v. Clement, 8 Pa. Dist. R. 705; "" Com. V. McLaughlin, 5 Lack. Legal Com. v. Thompson, 18 Pa. Co. Ct. News, 32. 487 ; Com. v. Curren, 2 Chester Co. Rep. " Com. V. Lehrsch, 14 Pa. Co. Ct. 496, 393, 9 Phila. 623, 29 Phila. Leg. Int. 53. 3 Pa. Dist. R. 417; Clemens v. Com. 7 "Act March 31, 1860, P. L. 427, § Watts, 485; Com. v. Curren, 2 Chester 63. Co. Rep. 393, 9 Phila. 623, 29 Phila. "Act May 25, 1897, P. L. 89. Leg. Int. 53. 8§ 615-618] COSTS. 493 the costs upon him, though they acquit.*' Or if the jury find that, though not actually guilty, the case is in court through his fault ;** or if the defendant's conduct has been such as to give rise to a reasonable belief that he was guilty,*' and the court has refused to set aside such a verdict, when acquitted on the plea of the statute of limitations,*® or on the plea autrefois convid.*'' ISTor will the costs be struck off be- cause the evidence showed no motive.** But if the evidence clearly shows that defendant was a;cting within his plain legal rights, the costs imposed will be set aside.** 615. Joint defendants. — "In all eases where two or more persons have committed an indictable offense, the names of all concerned (if a prosecution shall be commenced) shall be contained in one bill of indictment, for which no more costs shall be allowed than if the name of one person only was contained therein.""" On acquittal of defend- ants, they may both be directed to pay'the costs,"^ or where one ap- pears blameless and the other guilty of misconduct, the costs may be put on the latter alone.'^ If one be convicted and one be acquitted, the latter cannot be directed to pay costs."* 616. Where court has no jurisdiction. — It has been held that costs cannot be imposed upon the defendant where the court has no juris- diction.'* But the contrary has also been decided, on the ground that the jury may impose costs in all prosecutions, which does not neces- sarily mean all offenses.'' 617. Where indictment is defective. — If the indictment be so defec- tive that the conviction cannot be sustained, the costs may neverthe- less be imposed on the defendant.'® But where the indictment is not only defective, but the evidence shows no offense to have been com- mitted, the costs cannot be imposed upon him.''' 618. Where first indictment quashed. — Where the first indictment " Com. V. Bishop, 14 Pa. Co. Ct. 404, »' Com. v. Scliall, 12 Pa. Co. Ct. 554. following Com. v. Tilghman, 4 Serg. & ™ Com. v. Meany, 8 Pa. Super. Ct. R. 127; Com. v. Gra/ves, 23 Pa. Co. Ct. 224. 252. ''Searight v. Com. 13 Serg. & R. 301. "Com. V. O'Gradj/, 4 Pa. Dist. R. 732. "Pom. v. Balph, 18 Pa. Co. Ct. 242, « Com. V. Daly, 26 Pa. Co. Ct. 494. 27 Pittsb. L. J. N. S. 148. '^Balckcin v. Com. 26 Pa. 171. ^^ Com. v. Meehes, 15 W. N. C. 450. " Com. V. Buggms, 12 Pa. Co. Ct. " Com. v. Tilghman, 4 Serg. & R. 127 ; 496, 2 Pa. Dist. R. 329, 23 Pittsb. L. J. Com. v. Keenan, 67 Pa. 203 ; Wright N. S. 290, 10 Lane. L. Rev. 135. v. Com. 77 Pa. 470; Com. v. Linderman, " Com. V. Lederman, 14 Lane. L. Rev. 1 Woodw. Dec. 370. 185. " LArm v. Com. 96 Pa. 285; Com. v. *'C(m. V. Gdbly, 5 Pa. Dist. R. 159; Baldwm, 5 Pa. Co. Ct. 509; Com. Com. V. Weamer, 2 Pa. Co. Ct. 455. v. 'Neely, 6 Lane. L. Rev. 194, 4 Del. Co. "Act March 31, 1860, P. L. 427, § 65; Rep. 7. Com. V. McArdle, 3 Pa. Dist. R. 258; Com. V. Rice, 3 Pa. Dist. R. 259. 494 CRIMINAL AND PENAL PROCBDURK [chap, xxvi is quashed, and an acquittal is had on the second, but costs are im- posed, the defendant does not become liable for the costs upon the first.^*"^ But if the second is based upon the same information, the costs on that complaint are properly imposed.*" 619. In felonies. — Except in the case of larceny of goods under $10 in value, or of assault improperly charged as a felony (act May 25, 1897, P. L. 89), on acquittal of felonies the petit jury cannot direct the defendant to pay the costs. The charge as made in the bill of indictment, and not the possibility of guilt, determines whether the offense is a, felony.*^ But if the indictment improperly charges the crime as done feloniously, whereas it is a misdemeanor, the jury may impose costs on the defendant.®^ If the charge be both for a felony and a misdemeanor, the jury has no power over the costs on acquit- taL«» If there are two separate indictments for a felony and a misde- meanor, and there is a settlement of the misdemeanor between the prosecutor and the defendants, whereupon the further proscution of the indictment for a felony is abandoned, and a verdict of acquittal is rendered, the county is not liable for the costs of the witnesses for the prosecution, it being evident that the costs were incurred in the prosecution of the misdemeanor, and not of the felony.^* 620. Where defendant is indicted in his official capacity. — Where a defendant has been indicted in his official capacity as a borough councilman for a nuisance, and convicted, the costs may be imposed upon him, though he is no longer in office.*^ 621. Division between prosecutor and defendant. — As has been no- ticed, the acts of assembly referred to permit the petit jury, in cases of acquittal, to divide the costs between the prosecutor and the de- fendant. This it may do where both parties are to blame, but the jury feels that the defendant ought not to be convicted.^® The de- fendant is not relieved by the discharge of the prosecutor from the payment of his proportion under the insolvent laws.®^ Where the jury divides the costs, the defendant's bill shall be included in the cal- culation.*^ ™-' Com. V. Peiffer, 80 Pa. 191 ; Bald- " Wayne County v. Com. 26 Pa. 154. win V. Com. 26 Pa. 171 ; Com. v. Linder- " Com. v. Horner, 34 Pa. 440. man, 1 Woodw. Dee. 370. ^ Com. v. Bredin, 165 Pa. 224, 30 Atl. "Com. V. Brady, 5 Pa. Dist. R. 46. 921. " Braddee v. Com. 6 Watts, B30 ; Com. " Com. v. O'Grady, 4 Pa. Dist. R. V. Benscoter, 1 Luzerne Leg. Obs. 77. 732; Com. v. Zcll, 14 Lane. L. Rev. KiS. »" Com. V. Brush, 22 Pa. Co. Ct. 474 ; "' Com. v. HhindeU. 9 Pa. Dist. R. 298, Com. V. Btritzman, 6 Pa. Co. Ct. 10 Lane. L. Rov. 407. 390; Com. v. SchaM, 12 Pa. Co. Ct. 554. »»Act April 9, 1873, P. L. 67, § 1. §§ 622-624] COSTS. 496 622. Sentence of prosecutor or defendant. — Where costs are im- posed by the petit jury on the prosecutor or defendant, liability at- taches from tiie time the court sentences the person charged to pay.®® If there is a failure to sentence, the defendant cannot be held for failure to pay, after compliance with the order which the court has made.''** 'Not can they be collected.''^ But if costs have boen divided, whereupon each party taxes his own, and excepts to the bill of the other, neither will be heard to object that formal sentence was not passed upon the other. ''^ 623. liability of county for costs. — Statutes permitting the impo- sition of costs in criminal cases upon the public are to be construed strictly.^^ And the county commissioners have no authority to pay them, except when authorized. by some act of assembly.''* Such au- thority must be expressly given in the act.''^ And when such are paid when not authorized, the commissioners become personally responsi- ble.^« 624. Discharged cases. — "Where any person shall be brought before a court, justice of the peace, or other magistrate of any city or county in this commonwealth having jurisdiction in the case, on the charge of being a runaway servant or slave or of having committed a crime, and such charge upon examination shall appear to be unfounded, no costs shall be paid by such innocent person, but the same shall be chargeable to and paid out of the county stock, by such city or coun- ty."''^ Under this act of assembly, which is still in force, the county becomes liable for the costs accruing in criminal proceedings before justices of the peace, where the charge is unfounded and the case dis- charged.''® And this rule applies to any indictable offense, whether felony or misdemeanor.''® The justice's docket is conclusive that the charge was unfounded.*'' Where cases are settled by the parties as allowed under certain circumstances by act of assembly, the costs accrued are payable by the "See § 613, supra. '"York County v. Grafton, 100 Pa. "iJe Hadfield, 3 Kulp, 135. See Zeis 619. V. Luzerne County, 3 Kulp, 174, 2 Del. '"Lycoming v. Lycoming County, 46 Co. Rep. 206. Pa. 496. " Means's Estate, 22 Pa. Co. Ct. 131. " September 23, 1791, 3 Smith's " Com. V. Machell, 8 Kulp, 206. Laws, 37, § 13. '" Kirhendall v. Luzerne County, 11 ''' Beaverson v. York County, 1 Pa. Phila. 575, 1 Chester Co. Rep. 242; Ir- Co. Ct. 606, 3 Lane. L. Rev. 209; Lan- win V. 'Northampton County, 1 Serg. & caster County v. Myers, 3 Lane. L. Rev. R. 505; Com. v. Tilghman, 4 Serg. & R. 297. 127; Ramsey v. Alexander, 5 Serg. & R. '"Lehigh County v. Sehock, 113 Pa. 338; Com. v. Johnson, 5 Serg. & R. 195. 373, 7 Atl. 52. "Franklin County v. Con/rad, 36 "^ Lehigh County v. Sehock, 113 Pa. Pa. 317; Com. v. Horner, 34 Pa. 440. 373, 7 Atl. 52. 4£6 CRIMINAL AND PENAL PROCEDUER [chap. xxvi. parties. In such case they would not be liable for the cost of a pre- mature return made by the magistrate.*^ When a nolle p-osequi is entered before the bill is submitted to the grand jury, the act of 1791 has been held applicable, so as to im- pose liability upon the county.*^ But where a true bill has been found, the rule is different, and the county is not liable for costs ; nor is it such a termination of prosecution as brings the case within the act of 1887.^^ Even though the death of the defendant made it im- possible to further prosecute.** There is no power of the court to or- der the county to pay the costs upon such entry, since no statute im- poses liability in such a case.*^ Nor will a promise by the county commissioners to pay the costs, made before the entry of a nolle prose- qui j be effective to charge the county.*® 625. Imposition by jury in misdemeanors. — The county is imme- diately liable for the costs of prosecution in a ease of misdemeanor, where the grand jury returns a bill ignoramus, and directs the county to pay the costs; or where the petit jury acquits the defendant, and makes a similar direction or finding.*^ This liability has been still further extended by the act of May 19, 1887. It provides that "the costs of prosecution accruing in every case of misdemeanor in any of the courts of quarter sessions of the peace of this commonwealth shall, on the termination of the prosecution by the bill of indictment being ignored by the grand jury, or by a verdict of a traverse jury and sen- tence of the court thereon, be immediately chargeable to and paid by the proper county : Provided, That the county shall be liable only for the costs of such witnesses as the district attorney shall certify were subpoenaed by his order, and were in attendance and necessary to the trial of the case."** This legislation applies only to proceedings in the quarter sessions, and not to prosecutions before a justice and jury of six under the act of 1861,*" and relates only to the trials and con- victions after its passage.®" "^ Com. V. Jordan, 25 Pittsb. L. J. 89 ; Schuylkill County, 1 Legal Chronicle, act March 31, 1860, P. L. 427, § 9; act 191. March 17, 1806, 4 Smith's Laws, 318, '" Berhs County v. Pile, 18 Pa. 493. § 1. See also the effect of the entry of "Act Maj-ch 31, 1860, P. L. 427, § a nolle prosequi, § 625, infra. 62; Kirkendall v. Luzerne County, 11 '^ Gallagher v. Franklim, County, 5 Phila. 575, 33 Phila. Leg. Int. 313, 1 Pa. Co. Ct. 431. Chester Co. Rep. 242; Com. v. Curren, '"-Williams v. Lunerne County, 8 9 Phila. 623, 29 Phila. Leg. Int. 53, 2 Kulp, 15. Chester Co. Rep. 393. "■ Com. V. Gallagher, 5 Kulp, 532. »» Act May 19, 1887, P. L. 138, § 1. " Agnew v. Cumberland County, 12 "Bradford Countif v. "Wells, 125 Pa» Serg. & R. 94; Com. v. Winskey, 1 Pa. 319, 17 Atl. 439. Co. Ct. 77 ; Com. v. Torrey, 1 Legal Rec- "" Schonavoolff v. Sehuylkill County, 5 ord Rep. 298, 12 Lane. Bar, 72 ; Zink v. § 626] COSTS. 497 In case of acquittal the jury should not impose the cost upon the county unless the prosecution has failed through no fault of the in- former, who has been unable to make out his case, which he brought in good faith.®^ 626. Imposition by jury in felonies. — In case the charge is a fel- ony, the county is made liable. "The costs of prosecution accruing on all bills of indictments charging a party with felony, returned ig- noramus by the grand jury, shall be paid by the county ; and that the costs of prosecution accruing on bills of indictment charging a party with felony shall, if such party be acquitted by the petit jury on the traverse of the same, be paid by, the county ; and in all cases of con- viction of any crime all costs shall be paid by the party convicted ; but where such party shall have been discharged according to law without payment of costs, the costs of prosecution shall be paid by the coun- ty ; and in cases of surety of the peace, the costs shall be paid by the prosecutor, or the defendant, or jointly between them, or the county, as the court may direct."®^ The act of 1860 has been modified so that the county, in case of conviction for the felony, shall become immediately liable for the costs. "The costs of prosecution accruing on all bills of indictments charging a party vidth felony, ignored by the grand jury, shall be paid by the county ; and in all cases of conviction of any felony, all costs shall be paid forthwith by the county, unless the party convicted shall pay the same ; and in all cases in which the county pays the costs, it shall have power to levy and collect the same from the party con- victed, as costs in similar cases are now collectible."®^ This act did not provide for cases of acquittal. Sttch are controlled by the act of 1860.»* By the act of 1897, already noticed, the county may be relieved from responsibility for costs, CA^en in case of felonies, where the charge is the larceny of goods under $10 in value, or assault which is charged improperly as a felony.®^ This act is effective to transfer lia- bility for costs from the county to the prosecutor ; and where these are imposed upon the prosecutor, the witness must look to him for his compensation."® Where the bill of indictment charges a felony in addition to a mis- Pa. Co. Ct. 329, 5 Lane. L. Rev. 316, 35 " Com. ecc rel. Edwards v. Lloyd, 9 Pittsb. L. J. 398. Kulp, 48. " Com. V. O'Grady, 4 Pa. Dist. R. 732. »= Act May 25, 1897, P. L. 89. •^ March 31, 1860, P. L. 427, § 64. "Boyle v. Lloyd, 9 Kulp, 390, 16 "May 11, 1874, P. L. 132, § 1. Lane. L. Rev. 279. Pa. Crim. Proc— 32. 498 CRIMINAL AND PENAL PROCEDURE. [chap. xxvi. demeanor alleged in the information, it will be presumed that the dis- trict attorney acted honestly, and the county will be liable as in case of felony.®' If the indictment charge both a felony and a misdemean- or, the county is liable for the costs of prosecution, notwithstanding the fact that the defendant is acquitted and the costs are imposed upon him.®® But if the counts charging a felony be ignored by the grand jury, and the defendant be tried upon a misdemeanor, and ac- quitted, and discharged from payment of costs under the insolvent laws, the county is held not liable.®® 627. Where indictment quashed. — In case of quashed indictments, it has been held the county is not liable for costs of the district attor- ney.^®® And no liability attaches under the act of 188Y for the cost of witnesses subpoenaed by the commonwealth for the prosecution of a misdemeanor, where the indictment is quashed and the prosecution abandoned. ^®^ Where the first indictment is quashed, and the county is ordered to pay the costs on acquittal of the second, the county is not liable for the costs which have accrued upon the first indict- ment.-'®^ "Where the second indictment was based upon the same information, the costs of the information were held collectible from the defendant upon imposition after acquittal on the second indict- ment.^®^ 628. Where acquittal by consent.— Where a verdict of acquittal is entered by consent, county for costs, the case is practically withdrawn from the jury, and no liability attaches to the county.-'®* 629. Where acquittal and no disposition of costs. — Where the ver- dict did not state who should pay the costs, it was held that the county was not liable.^®" The later legislation provides for payment forth- with upon termination of prosecution by a verdict and sentence. 630. When liability commences under act of 1887. — Under the act of 1887, before mentioned, the county is made primarily liable for the costs where the bill is ignored or the prosecution terminated by sen- tence. In case the bill is ignored by the grand jury, and the prose- " Com. V. March, 1 Pa. Co. Ct. 81. been held, since the act of 1887, where " Wayne County v. ,Com. 26 Pa. 154. the second indictment ended in convic- °° Wilson V. York County, 1 York Le- tion and sentence) ; Richards v. Clear- gal Record, 6, 11 Lane. Bar, 170. Un- field County, 16 Pa. Co. Ct. 227 (in der the act of 1887, the county would which the earlier cases are discussed). now be liable in such case. »" Com. v. Brady, 5 Pa. Dist. R. 46. ^"Dunkle v. Warren County, 17 Pa. "^ Com. ex rel. O'Connor v. McCuen, Co. Ct. 400, 5 Northampton Co. Rep. 75 Pa. 215; Com. v. Tack, 3 Brewst. 184. (Pa.) 532, 8 Phila. 463; Com. v. Horn- ^'^Ogden v. Greene County, 3 Pa. er, 34 Pa. 440. Dist. R. 572. '»yorfc County v. Jacobs, 3 Penr. & ^"Oom. V. Huntingdon County, 3 W. 365; Birch v. Philadelphia,, 11 W. Rawle, 487 (though the contrary has N. C. 531. § 631] COSTS. 499 cutor sentenced to pay the costs, no formal judgment to that effect is necessary. The county becomes liable forthwith.^"® In ease of acquittal by the petit jury, the passing of a sentence is necessary to terminate the prosecution and raise the liability of the county. ■''*'' Eut a formal suspension of sentence is sufficient;^"* or a vacation of it, and a discharge of the prisoner on his own recog- nizance.^*"* Where a portion of the verdict imposing costs was set aside, the coimty was held not liable for that part.^^" In Zeis v. Lu- zerne County j^^^ decided prior to 1887, the record showed a sentence of fine and imprisonment imposed on a defendant, who complied with the same, but none for costs. The county was held liable, it be- ing presumed that he was discharged according to law. 631. Under prior acts. — Under the acts of 1791 and 1814, the coun- ty became liable for costs unpaid after conviction and sentence to death or hard labor. ^^'^ But not Avhere no conviction resulted.-'^* By § 64 of the act of 1860, the county became liable in felony cases in case the verdict was one of acquittal and in other cases where there was a conviction and a discharge of the defendant under the insolvent laws.-'** The conviction intended by this section means a verdict, and not necessarily a judgment thereon.**^ This section was not repealed by the act of May 11, 1874.**" It did not include an acquittal of a misdemeanor,**^ or a conviction in a summary proceeding before a justice of the peace.*** Under this section there must be a A^alid discharge to make the county liable.*** A pardon is a discharge, according to law,*^" and '"Allen V. Delaware County, 161 Pa. Freytag v. Philadelphia County, 6 Binn. 550, 29 Atl. 288 (aliter before 1887) ; 397; Northampton County v. West, 28 Com. V. Tack, 3 Brewst. (Pa.) 532, 8 Pa. 173. Phila. 463. And the contrary was held "' Com. v. Philadelphia County, 4 since 1887 in Donohue v. Luzerne Goun- Serg. & R. 541. ty, 5 Kulp, 220, S. C. 6 Lane. L. Eev. "'Act March 31, 1860, P. L. 427, § 138. 64. >" Com. V. Clement, 8 Pa. Dist. B. "' Yorh County t. Dalhousen, 45 Pa. 705; Rice v. Schuylkill County, 14 Pa. 372; Zeis v. Luzerne County, 3 Kulp, Co. Ct. 541 ; Com. v. Bishoff, 13 Pa. Co. 174, 2 Del. Co. Rep. 206. Ct. 503, 2 Pa. Dist. R. 646, 7 York Legal "" Com. ex rel. Edwards v. Lloyd, 9 Record, 45. Kulp, 48. , ,, , ^ , '<« Wright v. Donaldson, 158 Pa. 88, '"Wilson v. County, 1 York Legal 27 Atl. 867. Record, 6, 11 Lane. Bar, 170. '" McSweeney v. Allegheny County, '''Crawford County v. Barr, 92 Pa. 25 Pittsb. L. J. N. S. 96. 359. '" Piatt V. Luzerne County, 5 Kulp, "° Beidelman v. Northampton County, 517 7 Lane. L. Rev. 276; Com. v. Bish- t Legal Gaz. 212; Com. v. Tack, 3 off, 13 Pa. Co. Ct. 503, 2 Pa. Dist. R. Brewst. (Pa.) 532, 8 Phila. 463; 646, 7 York Legal Record, 45. Shrope v. County, 3 Lane. L. Rev. 123. ™3 Kulp, 174, 2 Del. Co. Rep. 206. '"York County v. Dalhousen, 45 Pa. "^ Com. ex rel. Barnes v. Philadelphia 372 ; Healey v. Berks County, 1 Woodw. County, 2 Serg. & R. 290; Com. ex rel. Dec. 440. 500 CKIMINAL AND PENAL PROCEDURE. [chap. xxvi. a discharge under the acts of 1883 or 1887 is sufficient,*^^ though the contrary was held in two cases. '^^ An escape from prison is not such a discharge.-'^* In ease of discharge under the insolvent laws, the county becomes liable only if the discharge has been according to law,^^* and if the discharge is illegal, it is of no effect and the prisoner can be retaken.'^* But if the discharge by prison inspectors is legal, the county becomes liable.i-« 632. Defendant's witnesses. — The county is never liable for the wit- nesses of the defendant.^ ^^ Though the defendant may secure a com- monwealth subpoena to secure the presence of witnesses, and it is the duty of the court to grant the same, yet the county cannot be charged with their costs nor with those of the officers serving it^^* But the court may compel the proper officer to serve it, though no compensa- tion is recoverable.^^* 633. Supervision of court over costs. — It is an inherent power of the court to set aside a finding of costs by the jury, to prevent oppres- sion, though it will act only in clear cases. Thiis, it may do so, when they are imposed by the grand jury.^"" Or it may set aside the find- ^^ Patterson v. Franklin County, 5 Northampton County, 1 Lehigh Valley Pa. Co. Ct. 471. L. R. 23 (misdemeanor) ; Com. v. ^" Oildea v. Laehav;anna County, 5 Curren, 2 Chester Co. Rep. 393, 9 Pliila. Pa. Co. Ct. 472, 4 C. P. Rep. 132, under 623, 29 Phila. Leg. Int. 53; Com. v. the act of June 13, 1883, which was (?e6ftar<, 5 Kulp, 359 ( surety of peace ) . held unconstitutional, and AughenhoAigh ^'^ Huntingdon County v. Com. 72 Pa. V. York County, 13 York Legal Record, 80; Com. v. Bucoieri, 153 Pa. 570, 26 180. Atl. 245; Wayne County v. Waller, 90 ^'^ Sclionawolf v. Schuylkill County, Pa. 99, 35 Am. Rep. 636; Com. v. Kil- 5 Pa. Co. Ct. 329, 5 Lane. L. Rev. 216, course, 1 Del. Co. Rep. 189; Com. v. 35 Pittsb. L. J. 3!>8. Evam, 1 Kulp, 426, 3 Law Times, N. S.' "^Mark v. Clinton County, 4 Clark 132. (Pa.) 15; Schuylkill County v. iSeif- ^'^ Com. v. Pavnton, 8 Lane L. Rev. snyder, 46 Pa. 446; Gilkyson v. Bucks 376; Com. v. Lindsey, 2 Chester Co. Rep. County, 84 Pa. 22; Daniels v. Lacka- 268. u-anna County, 5 Law Times, N. S. 59. '^° Com. v. Farrell, 2 Chester Co. Rep. '-^Schwamblev.The Sheriff, 22 Pa. 18, 381; Com. v. Bain, 1 Pa. Co. Ct. 25, 2 1 Grant Cas. 187; Com. v. Prior, 2 Pa. C. P. Rep. 187; Com. v. Sharp, 7 Lane. Co. Ct. 58, 3 Lane. L. Rev. 126, 1 Lehigh L. Rev. 58 ; Connolly v. Lackaicanna Valley L. R. 205 ; Com. v. Heiffer, 2 County, 1 Pa. Co. Ct. 28 ; Com. v. Mun- Woodw. Dec. 311; Com. v. Curren^ 2 dis, 2 Chester Co. Rep. 381, 1 York Le- Chester Co. Rep. 393, 9 Phila. 025, 29 gal Record, 4; Com. v. Euddell, 10 Pa. Phila. Leg. Int. 53. Co. Ct. 548, I Pa. Dist. R. 132; Com.. ^'^ Beidelmam, v. Northampton Coun- v. Gilgallon, 1 Lack. Legal News, 172, ty, 4 Legal Gaz. 212. 12 Lane. L. Rev. 263; Com. v. Dittus, 17 ^"Franklin County v. Conrad, 36 Pa. Lane. L. Rev. 127; Com. v. Howe, 7 317 (misdemeanor) ; Williams v. North- Lack. Legal News, 145; Com. v. UcNair, umberland County, 110 Pa. 48, 20 Atl. 3 York Legal Record, 216; Com. v. Mc- 405 (felony) ; Huntingdon County v. Curdy, 2 Chester Co. Rep. 381, note. Com. 72 Pa. 80 (felony) j Kelly v. § 634] COSTS. 501 ing of the petit jury imposing costs, -when the court believes such to be improper.**^ The right has been doubted in some cases.**^ This power of the court has been exercised to set aside the costs improperly diiplicated.*^* If an application be made to set aside costs, the court is bound to give a hearing. ^^* And it is improper to adjudicate costs of officers without notice to them.**^ If the court has improperly omitted certain costs in sentencing, he may revoke his judgment at any time within the term, and order the payment of all of the costs.^^® 634. Eeimbursement of county for costs paid. — The act of 1874, providing that the county should pay costs in felony cases ending in conviction, provided for the collection of the same from the party convicted.^ ^'^ The act of 1887, relating to misdemeanors, provided that "it shall be the duty of the district attorney and county commis- sioners to use all due diligence to collect the costs, in every case men- tioned in this act, from the party made liable therefor by the sen- tence or order of the court, and to pay the same into the county treas- ury.""8 '^Guffy V. Com. 2 Grant Cas. 60; Co. Ct. 118, 14 Lane. L. Rev. 132; Com. Com. V. Ream, 1 Pa. Co. Ct. 33; Com. v. Milley, 7 Pa. Dist. R. 680, 15 Lane. V. Yeager, 3 Pa. Dist. R. 237 ; Com. v. L. Rev. 321 ; Com. v. Clark, 7 Pa. Dist. Steele, 2 Chester Co. Rep. 380; Com. v. R. 683, 15 Lane. L. Rev. 324; Com. v. Ledermwn, 14 Lane. L. Rev. 185; Com. Murr, 7 Pa. Dist. R. 685, 15 Lane. L. v. Wagner, 1 York Legal Record, 24; Rev. 325; Com. ex rel. Barnes v. Phila- Com. v. Bishop, 14 Pa. Co. Ct. 404; delphia County, 2 Serg. & R. 290; Com. Com. V. Todd, 1 Pa. Co. Ct. 416; Com. v. Frescoln, 11 Lane. L. Rev. 161; Com. v. Witmer, 6 Kulp, 304, 5 York Legal v. Sollenlerger, 11 Lane. L. Rev. 235. Record, 43; Com. v. Hess, 18 Pa. Co. Ct. "'Com. v. Doyle, 16 Pa. Super. Ct. 542; Com. v. Pflueger, 10 Pa. Dist. R. 171. 717, 58 Phila. Leg. Int. 490. "'Franklin's Appeal, 163 Pa. 1, 29 "" Com. V. Ziegler, 9 Kulp, 531, 7 Del. Atl. 912. Co. Rep. 548, 17 Lane. L. Rev. 149, 14 "° Com. v. Thompson, 18 Pa. Co. Ct York Legal Record, 71; Com. v. Show- 487. ers, 7 Pa. Co. Ct. 179. "'Act May 11, 1874, P. L. 132, § 1. '^ Com. V. McArdle, 3 Pa. Dist. R. '» Act May 19, 1887, P. L. 138, § 2. 258; Nehr v. Lancaster County, 19 Pa CHAPTER XXVII. COSTS— CONTINUED. 635. Enforcement of payment. 636. Security to pay. G37. Discharge from the payment of costs under insolvent lawn C38. How applied for. 639. When applied for. 640. Discharge by county commissioners. 641. Costs before justices under the act of 1861. 642. In penal actions. 643. In vagrancy. 644. In caja of forfeited recognizance. 645. In desertion and surety of the peace. 646. Costs of coroners. 647. Fees recoverable by coroners. 648. Local acts as to coroners. 649. Fees of deputies. 650. Fees of coroner's jury. S5\. Fees of coroner's physicians. 652. District attorney. 653. Assistant counsel. 054. Physicians. 655. Clerks. 656. Detectives. 657. Eailroad policemen. 658. Boarding jury. 659. Boarding prisoners. 060. Costs of serving bench warrants. 661. Costs of extradition. 062. Removing prisoners to penitentiary. 663. Insane criminals. 664. Interpreters. 665. Stenographers. 0C6. Costs of witnesses. 607. Costs of prosecution chargeable to townships and school districts. COS. Taxation of costs. 669. Reimbursement of county. 670. Payment of costs in certain counties. 635. Enforcement of payment. — The act of June 16, 1836/ gave to the quarter sessions power "to awai'd process to levy and recover ' § 20, P. L. 784. 502 § 635] COSTS. 503 such finei, forfeitures, and amercements as shall be imposed, taxed, or adjudged." The writ of fieri facias is therefore properly issued from that court.^ But such cannot be done until the sum due has been definitely ascertained,* nor until the liability has attached.* Proceedings in the common pleas are provided by the act of 1901, when the judgment has been certified to that court. "Where any court of quarter sessions of the peace or court of oyer and terminer of this commonwealth has heretofore made or entered, or shall hereafter make or enter, any order, sentence, decree, or judgment for the pay- ment of any moneys whatsoever, in any matter or thing within the jurisdiction of the said court, a copy of the said order, sentence, de- cree, or judgment may be certified to court of common pleas of the same county, and be entered and indexed in said court as a judgment, with like force and effect as if the same had been recovered therein as a judgment of the latter court. Section 2. That when said order, sentence, decree, or judgment is entered as a judgment in the court of common pleas, aforesaid, the same may be revived by scire facias et quare cxecutionem non, and be collectible by writs of fieri facias, ven- ditioni exponas, and by testatum fieri facias and testatum venditioni expo7ias to other counties, to sell real and personal estate, and by alias pluries and such other writs of execution as shall be necessary to collect said judgment; which writs aforesaid shall issue in the same manner and be of like force and effect for the sale of personal and real estate as if the like judgment had been originally recorded in the said court, except that the defendant in any such writs shall not be entitled to the benefit of any exemption laws."® The payment of costs by prosecutors or defendants may be en- forced by commitment. But a defendant sentenced to imprisonment, but not to pay the costs, is entitled to a discharge at the expiration of his term of confinement.® If there is a discharge after the payment of all costs on record, there cannot be a recommitment on a writ of non omittas to enforce the payment of a bill subsequently filed.^ The enforcement of payment of costs against a county may be by action against it, though not against the commissioners individually,* or by mandamus.® An action of assumpsit to enforce liability cannot be brought before a justice of the peace, since he has no jurisdiction, ^McNamara v. Barley, 2 Pa. Co. Ct. 'Re EadfieU, 3 Kulp, ].35. 491, 4 C. P. Rep. 179. ' Com. v. Love, 3 Pa. Co. Ct. 19. ' Harger v. Washington County, 12 ' Walton v. Lerch, 2 Northampton Co. Pa. 251. Rep. 388. *See §§ 613, 622, 630, 631, ante. "Com. ex rel. Shaw v. Philadelphia "Act May 8, 1901, P. L. 143. County, 3 Clark (Pa.) 411. 504 CRIMINAIi AND PENAL PROCEDURE. [chap, xxvii. it not being a contract of the character which can be entertained by him.^° No action can be maintained where the claim is barred by the statute of limitation.^^ It commences to run from the time that the cause of action accrues.'^ 636. Security to pay. — Where a party moves for an information against an officer for oppression and misbehavior in office, he may be compelled to enter a recognizance for the payment of costs. ■** If one becomes a surety for the payment of costs imposed by sentence upon his principal, he is not discharged by the imprisonment of his prin- cipal for the failure to give security for an additional bill of costs filed in the same case.^* 637. Discharge from the payment of costs under insolvent laws. It was provided by the act of 1791 that "every person and persons who is, are, or shall be, held in confinement by order or judgment of any court of this commonwealth for the costs of prosecution, shall be entitled to the benefit of the several acts of assembly of this common- wealth for the relief of insolvent debtors, and may be discharged from personal imprisonment by the court in which such prosecution was or may be had, so far as regards confinement of their bodies for said costs, if such court shall, on consideration of the circumstances of such person or persons, find that he, she, or they, are or shall be un- able to discharge the said costs of prosecution : Provided, That the like previous notices of such application for discharge from confine- ment be given to the several persons interested in the said costs, as the law requires where insolvent debtors in other cases apply for such discharge."^ ^ The act of June 16, 1836, § 47,^^ enacts that "the court of com- mon pleas of any county in which any person may be confined by sen- tence or order of any court of this commonwealth until he restore any stolen goods or chattels or pay the value thereof, or in which any per- son may be confined for nonpayment of any fine or of the costs of pros- ecution, or upon conviction of fornication or bastardy, and for no other cause, shall have power to discharge such person from such con- finement, on his making application and conforming to the provisions hereinbefore directed in the case of insolvent debtors : Provided, That " Walton V. Lerch, 2 Northampton " Respuhlioa v. Prior, 1 Yeates, 206. Co. Rep. 388 ; Ketchledge v. Wyoming " Myers v. Martin, 5 Lane. Bar, No. County, 24 Pa. Co. Ct. 7. 2. " ZeMler v. Luzerne County, 1 Kulp, "September 23, 1791, 3 Smith's 448; Lancaster County v. Brinthall, 20 Laws, 37, § 12. Pa. 38. "P. L. 740. " Lineberger v. Mercer County, 19 Pa. Co. Ct. 532, 28 Pittsb. L. J. N. R. 154. §§ 638, 639] COSTS. 005 where sueli person shall have been sentenced to the payment of a fine, or after a conviction of fornication and bastardy, he shall not be en- titled to make such application until after he shall have been in actual confinement, in pursuance of such sentence, for a period of not less than three months." The 48th section of this act" enacts that "every person who shall be confined in any jail of this commonwealth, in execution or otlierwise, for any debt, sum of money, fine, or forfeit- ure not exceeding in amount the sum of $15 exclusive of costs, and who shall have remained so confined for the space of thirty days, shall be discharged from such confinement, if there be no other cause of confinement, and shall not be liable to imprisonment again for the same cause : Provided, That the estate and efi^ects of such person shall, notwithstanding such discharge, be liable for such debt or other cause of imprisonment, in like manner as before." The act of January 24, 1849,^* provided that "any applicant for the benefit of the insolvent laws, who is or may hereafter be in con- finement under sentence of any criminal court, and who shall be entitled to be released from such confinement on a compliance with the provisions of existing acts of assembly, shall be released on giving bond as in civil cases." This section is an exact transcript of the act of April 11, 1848.i» 638. How applied for. — To take advantage of the insolvent laws under the acts of 1836 and 1849, it is necessary that a bond be pre- sented, conditioned on the appearance of the defendant at the next court of common pleas to ask discharge.^" 639. When applied for. — Where one is sentenced to imprisonment, with a fine and the costs of prosecution, to secure a discharge under the insolvent laws the application cannot be made until three months after the expiration of the period of confinement, if the fine exceed $15.^^ If less than $15, then at the end of thirty days.^^ But if there has been no sentence of the defendant to pay costs, he is entitled to his discharge at the end of the period of imprisonment fixed by the court.^* Where the sentence has been one of imprisonment and a fine, the same rule applies. A discharge can be asked for in thirty days, dependent upon whether the fine imposed is more or less than " P. L. 741. " Com. V. RoUnson, 3 Pittsb. ' 546 ; " P. L. 677, § 6. Leffler v. Shrewer, 2 Legal Record Rep. "P. L. 526. It was passed to 377. meet the difficulty suggested in Henry '^ Feehan's Case, Brightly (Pa.) 462. V. Com. 3 Watts, 384. It is repealed "Re Sullivan, 3 Kulp, 6; Smith's as to Schuylkill by the act of March 22, Case, 5 Del. Co. Rep. 398, 7 York Legal 1850, P. L. 231, Fahey's Case, 8 Pa. Co. Record, 112. Ct. 457. "Re Hadfield, 3 Kulp, 135. 50tJ CRIMINAL AND PENAL PROCEDURE. [chap, xxvii. $15.^* One who has been sentenced under several bills of indict- ment, the fines in the aggregate exceeding $15, but each of which is less, is entitled to discharge under the insolvent laws at the expiration of thirty days.^' One sentenced to pay costs alone, who has been a resident of a state for six months immediately preceding his application, may be discharged at once by making application under the insolvent laws.^* But if the person sentenced to pay costs alone serve thirty days, he is entitled to discharge without proceeding according to the insolvent laws.^^ A prosecutor sentenced to pay costs is entitled to immediate dis- charge, if he file his bond in accordance with the act of 1836.^* The fact that the prosecutor is discharged under the insolvent laws does not relieve the defendant from his resj)onsibility.^® 640. Discharge by county commissioners. — To give to the county commissioners power to discharge from prison without the delay and expense of proceedings under the insolvent laws, where the term of imprisonment has been sei-ved and the costs remain unpaid, or where the sentence is for costs alone, the act of 1883 was passed.^" This legislation was believed to be unconstitutional on the ground that the act was local.^^ There is a practical re-enactment of it by the act of 1887, which avoids the objectionable features. "The commissioners of the several counties of this commonwealth shall be and they are hereby authorized, upon the order of the court of quarter sessions, or, in vacation, of a law judge thereof, in the exercise of its or his discre- tion, and Tjprth such terms as said court or judge as aforesaid may im- pose, tO' di^ifharge from prison, without the delay and expense of any ^' Com. V. County Prison Superintend- ™ Com. v. Trout, 16 Phila. 649, 40 ent, 7 Phila. 75; Re Huntsinger, 3 Phila. Leg. Int. 101, 2 Kulp, 377, 2 Kulp, 142; Com. v. Long, 5 Binn. 489; Chester Co. Rep. 81, 1 Del. Co. Rep. Com. V. Trout, 16 Phila. 649, 40 Phila. 493, 14 Lane. Bar, 166; Re Ashton. .5 Leg. Int. 101, 2 Kulp, 377, 2 Chester Kulp, 23. See Com. v. Rhoads, 11 Pa. Co. Rep. 81, 1 Del. Co. Rep. 493, 14 Co. Ct. 42, 1 Pa. Dist. R. 774, 9 Lane. Lane. Bar, 166; Com. v. Van Gorder, L. Rev. 77. 10 Lane. Bar, 205, 1 Law Times, N. S. "" Com. v. Lewis, 4 Lane. L. Rev. 386, 113; Com. v. Baum, 4 Luzerne Legal 1 Lack. Jur. 213, 4 C. P. Rep. 142. Reg. 285; Com. v. Frior, 2 Pa. Co. Ct. '^ Eishbaugh's Petition, 135 Pa. 468, 58, 1 Lehigh Valley L. R. 205, 3 Lane. 19 Atl. 1063. L. Rev. 126; Re Johnson, 13 Pa. Co. Ct. "Com. v. Shindell, 16 Lane. L. R«v. 170, 2 Pa. Dist. R. 700, 11 Lane. L. 407, 9 Pa. Dist. R. 298. Rev. 303; Conley's Petition, 3 Pa. Dist. ""Act June 13, 1883, P. L. 99. R. 623, 5 Del. Co. Rep. 402, 11 Lane. L. '^ Com. v. Carey, 2 Pa. Co. Ct. 293, Rev. 231. See Re Wood, 1 Pittsb. 17. 18 Phila. 668, 43 Phila. Leg. Int. 384, "Com. V. Curren, 2 Chester Co. Rep. 4 Kulp, 141, 3 Del. Co. Rep. 98, 1 Le- 393, 9 Phila. 023, 29 Phila. Leg. Int. high Valley L. R. 345; Gildea v. Lack- 53; Com. v. Blair, Ingraham on Insol- awanna County, 5 Pa. Co. Ct. 472, 4 vency, 47. C. P. Rep. 132. § 641] COSTS. 50? proceedings under the insolvent laws of tMs commonwealth, every convict who shall have served out his or her term of imprisonment, or who shall have been committed for nonpayment of costs only, not- withstanding if he be a convict and shall not have paid the costs of prosecution, fine, or made restitution, or paid the value of stolen goods or property: Provided, That in opinion of said commissioners such person is unable to pay or restore the same : and Provided, That such discharge shall not prevent the commonwealth, or any person in- terested in such payment or restitution, from proceeding by action to recover the same from the property of such person; but no such person shall be so discharged until he or she shall have made, under oath or affirmation, duplicate schedules of all his or her property, real, personal, or mixed, so far as he or she can ascertain the same, one of which shall be filed among the papers of the said prison, and the other with the clerk of the court of quarter sessions: Provided, further, That nothing in said proceedings shall either add to or take from the liability of said county for costs, under existing laws of this commonwealth. "^ ^ This act applies to prisoners who were required before its passage to take the benefit of the insolvent laws to secure their discharge. It was intended to refer only to those unable to pay costs imposed, and not to relieve from the payment of a fine.*^ The purpose of the act is to relieve convicts sentenced to definite punishments. It is not intended to cover cases of imprisonment for failure to obey orders of court.'* The exercise of the discretion by the county commis- sioners must be with the consent of the eourt.^" 641. Costs before justices under the act of 1861. — Where a prison- er pleads guilty to a charge of lai"ceny, and is sentenced under § 2 of the act of 1861, the county is liable for the costs where the prisoner is discharged without paying them.^" But it is not liable under the act of May 19, 1887,^^ where the jury acquits and puts costs upon the prosecutor, who is committed to jail for the nonpayment and sub- »=Aet May 6, 1887, P. L. 86, § 1. Ct. 540, 13 Lane. L. Rev. 152, 8 Kulp, "Com. V. Sifred, 31 Pittsb. L. J. 351, 111, and Com. v. Bird, 2 Pa. Co. Ot. 2 Chester Co. Rep. 235; Johnson's Case, 577 (fornication and bastardy). 13 Pa. Co. Ct. 170, 2 Pa. Dist. R. 700 ; '" Conley's Petition, 3 Pa. Dist. R. 623, Com. V. Cole, 3 Kulp,'98; Com. v. Tur- 5 Del. Co. Rep. 402, 11 Lane. L. Rev. ner, 1 Lane. L. Rev. 118; Com. v. Ross, 231; Com. v. Ross, 7 Lane. L. Rev. 342, 7 Lane. L. Rev. 342, 1 Lack. Jur. 217 1 Lack. Jur. 217. (for time when application should be '^ Coddimg v. Bradford County, 116 made). Pa. 47, 9 Atl. 153. '^Com. V. Velson, 1 Lane. L. Rev. 117 "P. L. 198, § 1. • " (desertion) ; Com. v. Young, 16 Pa. Co. &n8 CRIMINAL AND PEMAL PROCEDURE. [chap, xxvil, sequently discharged, since that act refers only to proceedings in the quarter sessions.^* The act of Api'il 11, 1868, P. L. 859, providing for costs where the defendant is convicted in the quarter sessions of an offense cognizable by a justice, does not apply where the defend- ant is acquitted of such an offense.*® 642. In penal actions. — Ordinarily, statutes providing penalties make provision for costs. The county is not liable for such under § 64 of the act of 1860.*° Unless provision be made in the act of as- sembly, informers under summary proceedings are not liable for costs if they fail to establish their accusation.*^ But where there is a judg- ment for the penalty costs follow it.*^ The act of April 17, 1876, passed to carry out the constitutional provisions for appeals in cases of summary conviction, provides that the court or judge allowing the appeal "may impose terms as to the payment of costs ;" but this means that terms may be imposed upon the defendant to be complied with in case the judgment of the justice or burgess is affirmed, but gives no authority to the court to impose the cost of appeal on the prosecutor, or upon the defendant if he is successful and is discharged.** For the payment of costs as a condi- tion of appeal from a justice, see act April 19, 1901, P. L. 84, amending the act of 1897. 643. In vagrancy.— Under the earlier acts it was held that the county was not responsible for costs on conviction for vagrancy, un- less the defendants were sentenced to hard labor, and actual commit- ment followed the sentence.** Under the act of 1860 it was necessary that the prisoner be discharged under the insolvent laws after the ser^/ing of his sentence, before liability attached.*^ " Bradford County v. yVells, 125 Pa. " South Bethlehem v. Connolly, 3 319, 17 Atl. 439. Montg. Co. L. Rep. 142. "Com. V. Thompson, 18 Pa. Co. Ct. ''Com. v. Moore, 21 Pa. Co. Ct. 321, 4S7. 29 Pittsb. L. J. N. S. 195, 12 York Le- " Crawford County v. Barr, 92 Pa. gal Record, 115; South Bethlehem v. 359; Seiders v. FranlcUn County, 6 Pa. Connolly, 3 Montpf. Co. L. Rep. 142. Dist. R. 787, 1 Docket, 133; Sloan v. ** Cumberland County v. Holcomb, 30 Delaware County, 19 Pa. Co. Ct. 320, 14 Pa. 349; Kirkendall v. Luzerne County, Lane. L. Rev. 341; Greenwwalt v. Eshle- 11 Phila. 575, 33 Phila. Leg. Int. 313; man, 8 Pa. Dist. R. 447, 16 Lane. L. Northampton County v. West, 28 Pa. Rev. 129; Com. v. Patton, 5 Del. Co. 173; Lancaster County v. Brinthall, 29 Rep. 290 ; Com. v. Watts, 21 Pa. Co. Ct. Pa. 38. 556; Lancaster v. Lancaster County, 12 " Oilkyson v. Bucks County, 84 Pa. Lane. Bar, 169. 22 (the contrary had been held before "Com. V. Hargesheimer, 1 Ashm. this act) ; Com. ex rel. Freytag v. Phil- (Pa.) 413; Com. v. Moore, 21 Pa. Co. adelphia County, 6 Binn. 397; Fleck v. Ct. 321, 29 Pittsb. L. J. N. S. 195, 12 Dauphin County, 1 Pearson (Pa.) 220. York Legal Record, 115. g§ 644, 645] COSTS. 509 The act of May 8, 1876,'" made the county liable in such cases.*' This act was again modified by that of May 3, 1878,*® act May 19, 1878,*» and by the acft of May 23, 1893.^'^ The costs of constables for such service is again regulated by act February 18, 1899.®* Policemen performing this duty are controlled by the act of May 8, 1876.^^ 644. In case of forfeited recognizance. — Where recognizances have been taken in criminal cases, and are subsequently forfeited, recov- ered, and the money paid to the county, all costs accruing are payable by the county. But in no case shall the amount of costs paid exceed the amount recovered on such recognizance and paid to such county.®* 645. In desertion and surety of the peace. — "The costs of the offi- cers, including the costs of the justice of the peace and constable, and all cases of vcife desertion and surety of the peace, shall be charge- able to and paid by the proper county as soon as the case is disposed of by the order of the court; and it shall be the duty of the district attorney and county commissioners to use all due diligence to collect the costs, in every case mentioned in this act, from the party made liable therefor by the sentence or order of the court, and to pay the same into the county treasury."®* Costs will not be allowed in surety of the peace cases where a com- plaint is returned at the same time, instituted by the same prosecu- tor against the same defeoidant for an assault and battery. In such cases the lesser crime merges into the greater, and the surety of peace case will be dismissed.®® Under § 2 of the act of 1887, above cited, the costs of witnesses for the commonwealth are not recoverable, but only those of the officers. The word "and" in the phrase "and all eases" should read "in."®* ISTor is the county liable for the witness fees paid by the wife in desertion proceedings, under said section, where the husband was ordered to pay the costs. ®'^ "P. L. 154. and the act of 1865 (Lyons v. Means, 1 "This repealed the local act of Pa. Super. Ct. 008 ) . April 21, 1866, P. L. 1099 for Cumber- =' P. L. 1. land county. Cumberland County v. "P. L. 154; Swisher v. Franklin Boyd, 113 Pa. 52, 4 Atl. 346. County, 5 Pa. Dist. R. 209. «P. L. 40. ""Act May 2, 1901, P. I>. 127. See "P. L. 64. also, Bail, chapter vii., ante. "P. L. 117; Hays v. Cumlerland "Act May 19, 1887, P. L. 138, § 2. County, 5 Pa. Super. Ct. 159, 14 Lane. This act renders obsolete the ease of L. Eev. 342, 41 W. N. C. 45; Bwisher York County v. Crafion, 100 Pa. 619. V. Franklin County, 5 Pa. Dist. R. 209. " Com. v. Rice, 3 Pa. Dist. R. 259. This act repealed that of April 2, 1868, ™ Com. v. Blanford, 6 Pa. Co. Ct. 389. P. L. 3 (Fenner v. Lugerne County, 167 " Terrill v. Crawford County, 22 Pa. Pa. 632, 31 Atl. 862; Frain v. Lancas- Co. Ct. 469, 8 Pa. Dist. R. 169, 30 ter County, 171 Pa. 436, 33 Atl. 339), Pittsb. L. J. N. S. 106, 17 Lane. L. Rev. 23. 610 CRIMINAL AND PENAL PROCEDURE. [chap, xxvii. 646. Costs of coroners. — Prior to 1897 the county was not charge- able for an inquest of a coroner, or for a preliminary view to deter- mine whether such inquest was necessary, unless there was reason to suspect that the death occurred by reason of some criminal agency. He was presumed, however, to have acted in good faith.''* Therefore, costs were not allowed when the inquest was held in a case of death resulting from disease, where there was no reason to suspect that a felony had been committed,^^ or where the death resulted from an accident,*''' or from suicide,''^ or from the negligence of the deceased.®^ And no fee Avas allowed under the act of 1814 for a preliminary in- quiry to determine whether the inquest was necessary.** Where, however, death does result from violence, or where there is reasonable cause to believe such to be the case, the inquest can be held and the fees are collectible.** The same principles control the holding of in- quests by the justice of the peace in lieu of the coroner, under the act of 1841.«5 It being deemed onerous for the coroner to view a body to determine the necessity of inquest, without receiving compensation, the act of 1897 was passed, which provides: "Whenever the coroner shall have been called, and views a dead body, and decides that no inquest is nec- essary, he shall certify and return this fact as inquests are now re- turned ; and for such service he shall receive the same fee and mileage as is now allowed by law for such view when followed by an inquest, said fee and mileage to be paid as provided by law where no inquest is held."** Where the claim is made under this act of assembly, it is presumed that the view is made in good faith, though this is rebut- table. He is only to be compensated under it when he has been called and views the body.*'' And the record must show tliat he was called in, and that his attendance was not voluntary.*® He is given no power "* Re Coroners' Inquests, 1 Pa. Co. Ct. °^ Crosty's Inquest, 3 Pittsb. 425, 19 14, 3 Lane. L. Rev. 70, 3 Kulp, 451. Pittsb. L. J. 192; Jones's Inquest, 1 Pa. "Lancaster County v. Mishler, 100 Co. Ct. 19; Lancaster County v. Dern, Pa. 624, 45 Am. Rep. 402; Bender's 2 Grant Cas. 262. Case, 8 Pa. Co. Ct. 684; Burns' s Case, "Burnett v. Lackawanna County, 9 5 Pa. Co. Ct. 549 ; UcFadgen v. Chester Pa. Co. Ct. 95, 1 Lack. Jiir. 400 ; Wat- County, 10 Pa. Co. Ct. 124, 7 Montg. son v. Beaver County, 9 Pa. Co. Ct. Co. L. Rep. 149. 495, 27 W. N. C. 469. "Pfouts's Case, 7 Pa. Co. Ct. 265; <"* Lee's Case, 9 Pa. Co. Ct. 474. Vhlcr V. Northampton County, 1 Le- °° Coroners' Inquests, 20 Pa. Co. Ct. high Valley L. R. 213; Lee's Case, 9 660, 7 Pa. Dist. R. 566. Pa. Co. Ct. 474; Re Coroners' Itiquests, '"Act March 30, 1897, P. L. 8, § 1. 1 Pa. Co. Ct. 14, 3 Lane. L. Rev. 70, 3 "Fayette County Coroner's Returns, Kulp, 451. 24 Pa. Co. Ct. 498. "Witmore Inquest, 14 Pa. Co. Ct. °» Groue's /nguest, 26 Pa. Co. Ct. 449. 403, 3 Pa. Dist. R. 699; Metzger In- quest, 8 Pa. Dist. R. 573. § 647] COSTS. 511 by this act to employ a physician to determine whether it is neces- sai'y."® The coroner has no right to hold inquests for private persons in or- der that they may he exonerated from blame, and to charge the coun- ty with the costs.''" And it has been said that he is guilty of a misde- meanor if he does do so and receives a reward.''^ The necessity for the inquest in case of death resulting from acci- dents in mines under the acts of April 18, 1877, June 30, 1885, June 2, 1891, and May 15, 1893,'^^ must also appear, or the approval of the court will be refused.'* Where several parties are killed at the same time, and one inquest is in fact held upon all of the bodies, but one set of fees can be charged.'^* But where several inquests are held, and separate find- ings made, fees will be awarded in each one.'^® It has been held that if the coroner acts without his jurisdiction, holding an inquest upon a body found in his county, though killed in another, he cannot recover.''^ As he has jurisdiction to hold an in- quest on property of the United States within the state, where there has been a reservation of the right to serve civil and criminal process, he may recover his fees in such case.'''' 647. Fees recoverable by coroners. — "Viewing of dead body, $2.75 ; summoning and qualifying an inquest, drawing and returning inquisition, $1.37%; summoning and qualifying each witness, 25 cents, to be paid out of the goods, chattels, lands, or tenements of the slayer (in case of murder or manslaughter), if any he hath, otherwise by the county, with mileage from the courthouse to the place of view- ing the body; executing any process or writs of any kind, the same fees as are allowed to the sheriff and the same mileage."''* Only such as are provided for by statute can be recovered. Items for a sten- ographer, for witnesses' fees, for the service of a subpcEna by a consta- " Winger v. McEean County, 26 Pa. "Fayette County v. Batton, 108 Pa. Co. Ct. 126, 8 Del. Co. Rep. 431, 18 591; Ramio v. Chester County, 1 Ches- Montg. Co. L. Eep. 88. ter Co. Rep. 416; Weavei- v. Northamp- '"' McFadgen v. Chester County, 10 ton County, 2 Lehigh Valley L. R. 408; Pa. Co. Ct. 124, 7Montg. Co.L. Rep.149; Marvin Shaft Inquest, 3 Pa. Co. Ct. 10. Pfouts's Case, 7 Pa. Co. Ct. 265; Cor- ''' Rentschler v. Schuylkill County, 1 oner's Inquests, 20 Pa. Co. Ct. 660, 7 Legal Record Rep. 289. There is a die- Pa. Dist. E. 566. turn to the effect that he has juriadie- " Watson V. Bea/ver County, 9 Pa. Co. tion in such cases, in Piohett v. Erie Ct. 495, 27 W. N. C. 469. County, 3 Pa. Co. Ct. 23, 19 W. N. C. " P. L. 52, art. 12. 60. "Jones's Inquest, 1 Pa. Co. Ct. 19; ''^Allegheny County v. McClung, 53 Coroner's Inquest, 20 Pa. Co. Ct. 660, Pa. 482. 7 Pa. Dist. R. 566; Evans's Inquest, 4 "Act March 28, 1814, 6 Smith's C. P. Rep. 89. Laws, 228, § 19. "Francis v. Tioga County, 8 Pa. Co. Ct. 163. 613 CRIMINAL AND PENAL PROCEDURE. [chap. xxvn. ble, not being provided for, are not collectible^® Nor can there be a recovery for livery to convey the jury to view the body;*** or for a clerk to the coroner f^ or for the mileage of witnesses f^ or for qual- ifying witnesses under the. act of 1897 to determine whether inquest is necessary.** By the act May 27, 1841,** which gave the justice of the peace ju- risdiction to act for the coroner in certain cases, it was provided that no fees or costs should be allowed or paid until the proceedings were submitted to the court of quarter sessions of the proper county for approval.*® He may recover though a deputy coroner reside within 10 miles.*^^ 648, Local acts as to coroners. — Local legislation as to the duty of coroners and their fees is found in Philadelphia county,** Westmore- land county,*"' Luzerne county,** and Lancaster county.** This last act, which applied to Berks county also, was repealed as to that coun- ty by the act of April 2, 1856.®'' It was extended to Blair by the act of April 15, 1853 f^ to Indiana by acts of March 14, 1857,»2 .and February 27, 1863 f^ to Bucks and Montgomery by act of March 14, 1860,"* and to Washington by act of 1867.®= See act of 1866,»« as to Northampton county. For mileage of witnesses in Bucks county, under local acts, see Bucks County Coroner's Inquisition.^'' These local acts are subject to some modification, as a result of the salary act of March 31, 1876,®* enacted to put in force § 5 of article 14 of the Constitution of 1874, and providing for salaries in lieu of fees, provided the fees equal in amount the compensation fixed. For counties over 150,000 and under 250,000, the act of 1876 has been amended by the act of July 2, 1895,®® passed for the regulation of fees in such cases.-'®® '"Marvin Shaft Inquest, 3 Pa. Co. Ct. "Act April 16, 1845, P. L. 538, § 9; 10; Re Coroners' Inquests, 1 Pa. Co. Ct. act May 5, 1864, P. L. 825, § 1; act 14, 3 Kulp, 451, 3 Lane. L. Rev. 70; May 22, 1867, P. L. 532, § 1. Metzger Inquest, 8 Pa. Dist. R. 576. " Act March 13, 1869, P. L. 404. "Re Coroners' Inquests, 1 Pa. Co. Ct. *^ Act March 30, 1866, P. L. 391. 14, 3 Kulp, 451, 3 Lane. L. Rev. 70. '"Act February 8, 1848, P. L. 29, S " Weaver v. Northampton County, 2 1. Lehigh Valley L. R. 408. A charge for "P. L. 219. a watchman to guard the body during the "P. L. 543, § 4. inquest was here allowed. '^P. L. 88. ^'Re Coroner's Inquest, 1 Pa. Co. Ct. "'P. L. 82. 677, 2 Del. Co. Rep. 475. "P. L. 167, § 2. "Troutman v. Chambers, 9 Pa. Dist. "'' April 2, P. L. 677. R. 533; Fayette County Coroner's Re- "April 19, P. L. 1461. turns, 24 Pa. Co. Ct. 498. »' 17 Pa. Co. Ct. 553. "P. L. 400, § 15. <^ P. L. 13. See also supplementa. =» Meizger Inquest, 8 Pa. Dist. R. 573. »» P. L. 424. See also supplements. '''^■Reitnauer's Inquest, U^Va,. Co. Ct. "^^ Philadelphia v. Gilbert, 14 Phila. 46. 212, 37 Phila. Leg. Int. 376; Ouldin §§ 649, 650] COSTS. 513 649. Fees of deputies.— By the act of 1889 provision was made for the appointment of deputies in those counties in which there were no special laws, and their compensation was provided for.^"^ This was superseded by a subsequent act allowing coroners to appoint depu- ties, but making no provision for compensation.^ "^ This enactment would seem to supersede the 1st section of the act of 1889 and all special laws which that act left untouched.^"^ This legislation is in- effective to give fees to deputies in counties of more than 150,000, where the Constitution directs the payment of salaries to coroners ;^*'* and it has been held not to supersede the local act for Bucks coun- ty ;i°^ and in Chester county the fees must be collected by the coroner, who pays the deputy.^ "^ Even if the act allowing the appointment of deputies is good, it gives no right to such a person to collect fees under the act of 189 Y, where a preliminary view is held to determine the necessity of an in- quest."^ If the acts of 1889 and 1893 be constitutional, the fees recoverable would be the same as those allowed to the coroner.^"^ 650. Fees of coroner's jury.— "AH persons hereafter sunmioned or notified to serve as coroners' jurors in this commonwealth shall be entitled to receive as compensation the sum of $1 per day, when the time employed does not exceed six hours; and in all cases where the time employed exceeds six hours the compensation shall be $1.50 per day, and the same compensation for all additional days, and no mile- age; these fees to be paid in the same manner that the fees of coro- ners' jurors are now paid."'"* No mileage is provided for jurors under this enactment.^'" 651. Fees of coroner's physicians.— Where an inquest is necessary, V. Com. 10 Pa. Co. Ct. 601, 6 Kulp, 306; Co. Ct. 454. See ako Fayette County Bleiler v. Muldoon, 16 Pa. Super. Ct. Deputy Coroner's Case, 20 Pa. Co. Ct. 553. 641, 29 Pittsb. L. J. N. S. 28. '"Act May 9, 188S, P. L. 162. ^'^ Grove's Inquest, 26 Pa. Co. Ct. 449. ""Act June 6, 1893, P. L. 330. ^"^ Troutman v. Chambers, 9 Pa. Dist. '°= Troutman v. Chambers, 9 Pa. Dist. E. 533. R. 533. For the local acts as to the ap- ^"Fayette County Deputy Coroner's pointment of deputies the act of 1893 Case, 20 Pa. Co. Ct. 641, 29 Pittsb. h. provided that "from and after the pas- J. N. S. 28; Grove's Inquest, 26 Pa. Co. sage of this act the regularly elected Ct. 449. and duly qualified coroner in counties '^'^ E chard v. Fayette County, 5 Pa. of this commonwealth may appoint one Dist. R. 371, 26 Pittsb. L. J. N. S. 461. or more deputies to act in his place and ™Act June 11, 1879, P. L. 147, § 1; stead, as he may deem proper and neces- Wea/ver v. Northampton County, 2 Le- sary." June 6, 1893, P. L. 330, § 1. high Valley L. R. 408. Prior to 1879, "" Com. ea> ret. Berry v. Grier, 9 Pa. see Ramho v. Chester County, 1 Chester Co. Ct. 444, 21 Pittsb. L. J. N. S. 312; Co. Rep. 416. Fogarty v. Schuylkill County, 13 Pa. "° Re Coroners' Inquests, 1 Pa. Co. Pa. Crim. Proc— 33. Ct. 14, 3 Lane. L. Rev. 70, 3 Kulp, 451. 514 CRIMINAL AND PENAL PKOCEDaRE. [ohap. xxvii, the coroner has the power to order a post mortem examinatioa to be made, and can bind the county for the services of a physician em- ployed by him.-'^^ The necessity of such employment is for him to determine in the exercise of his discretion. •'^^ But he cannot employ more than one.-'^^ The selection is for him to make, and he is not bound to call in a physician employed by the county commissioners at an annual salary for this purpose.^ ^* But he has no power to secure the services of a physician to aid in determining whether an inquest is necessary under the act of 1897.''^® The right to employ is given to the coroner, and the district attorney has no power to so bind the county.-'^® The physician regularly employed may maintain an action to re- cover his compensation even though the coroner in holding the in- quest was acting irregularly. ■'•''' But he must prove a demand upon the county commissioners and a refusal to pay, before he can re- cover.-'^® 652. District attorney. — The fees of the district attorney are regu- lated by local statutes in some of the counties.^^® The act of May 14, 1857,^^° applied generally. For the majority of the counties the act of April 12, 1866,^^^ was passed in lieu thereof.^^^ Since the Constitution of 1874 the salary act of March 31, 1876, with its sup- plement, controls the counties having more than 150,000 population, provided the fees equal the salary fixed.-^^* Only such fees as are distinctly given by statute can be paid. 'No right exists to extra compensation for unusual services performed.^^* The question of jointly indicting defendants, or of joining offenses, is within the discretion of the district attorney, subject to control in case of abuse.-'^'' Where a bill is quashed, or nolle prosequi entered "^Com. V. Barman, 4 Pa. 269; Alle- L. 477. See also acts in note 123, gheny County v. Watt, 3 Pa. St. 462. infra. ^^^ Northampton County v. Innes, 26 '=» P. L. 507, § 1. Pa. 156. "' P. L. 103. "° Metzger Inquest, 8 Pa. Dist. R. '- For the counties in which each is 573; He, Coroners' Inquests, 1 Pa. Co. applicable, see 1 Pepper & Lewis's Di- et. 14, 3 Kulp, 451, 3 Lane. L. Rev. gest of Statutes, col. 2055, § 37, and 70. note. ^^* Allegheny County v. Shaw, 34 Pa. "°Por the manner in which this is 301. determined, see Com. ex rel. Burleigh ^"Winger v. McKean County, 26 Pa. v. Qrier, 152 Pa. 176, 25 Atl. 624. For Co. Ct. 126, 8 Del. Co. Rep. 431, 18 salary acts since the Constitution of Montg. Co. L. Rep. 88. 1874, see act March 31, 1876, P. L. 13; "»Hop7M«s V. Chester County, 1 Ches- June 16, 1891, P. L. 314; June 23, 1883, ter Co. Rep. 481, 14 Lane. Bar, 88. P. L. 139; July 14, 1897, P. L. 267; ^"Pickett V. Erie County, 3 Pa. Co. March 21, 1899, P. L. 12; July 10, 1901, Ct. 23, 19 W. N. C. 60. P. L. 641. "' Luxeme County v. Day, 23 Pa. 141 . "* Qeiser v. Northampton County, 20 ""Allegheny, May 14, 1857, P. L. 507, W. N. C. 259. 35 Pittsb. L. J. 189. § 2; Philadelphia, March 31, 1860, P. "'Franklin's Appeal, 163 Pa. 1, 29 § 653] COSTS. 515 before indictment found, ihe county is not responsible for tbe fees of the district attorney.'^" Nor is it liable for the fee in a case set- tled with leave of court ;^^^ or for costs in sending a minor child to the house of refuge.^^^ Together with the other costs in the supreme court, in cases of mur- der and manslaughter, there shall be taxed the sum of $10, to be paid to the district attorney for argTiing the case by the county in which the case has been tried, in the event of a reversal of the judg- ment.^^* Subsequent legislation provided that, "when the record in any criminal ease shall have been removed by writ of certiorari or otherwise to the supreme court for review, and shall have been there- in disposed of, the necessary expenses of the district attorney in con- nection therewith, including a reasonable compensation for his serv- ices, to be fixed by the court in addition to the regular fee now al- lowed him by law for trying the case in the lower court, shall be paid by the proper county."'^" The compensation provided by the act of 1887 is to be fixed by the lower, and not the appellate, court. -"^^ A district attorney is entitled to interest on the amount of fees il- legally withheld, from the time when their payment has been de- manded from, and withheld by, the coiinty commissioners.^** 653. Assistant counsel. — Assistant district attorneys are provided for certain counties of the state, and their salary fixed by statute.^** Special counsel assigned by the court at the request of the district at- torney to aid in a prosecution are not entitled to compensation.-'** iSTor can private counsel recover from the county where the district attorney withdraws from the case because of disapproval of the line of trial suggested, and the plaintiff conducts it himself.^*^ ISTor is the county liable where the court assigns an attorney to de- fend an indigent prisoner, for compensation or for expense incurred on behalf of the defendant.^** Atl. 912; Singer v. Center County, 6 ^' Koch v. Schuylkill County, 12 Pa. Pa. Dist. R. 207; Ammerman v. Mon- Super. Ct. 567. tour County, 19 Pa. Co. Ct. 658; Com. ""'See act March 31, 1876, P. L. 13, V. Moore, 4 Del. Co. Rep. 617, 9 Lane, and its supplements. For Allegheny L. Rev. 92; Connolly v. Lackawanna county, see Com. ex rcl. Burleigh v. County, 1 Pa. Co. Ct. 26. Crier, 152 Pa. 176, 25 Atl. 624; Ed- ™ Koch V. Schuylkill County, 12 Pa. wards v. Allegheny County, 181 Pa. 216, Super. Ct. 567. 37 Atl. 337. For Lackawanna county, ™ Ulrich V. Lebanon County, 1 Pa. see Simrell v. Lackawanna County, 2 Co. Ct. 83. Law Times, N. S. 249. "^Oom. V. Patton, 5 Bel. Co. Rep. 290. "* McElroy v. York County, 3 York ""November 6, 1856, P. L. (1857) I^gal Record, 73, 1 Del. Co. Rep. 282, 795, § 6. 30 Pittsb. L. J. 55, 14 Lane. Bar, 56. ""May 19, 1887, P. L. 138, § 2. ^^^ Re Herring, 10 Kulp, 74. "' Com. V. Morningstar, 144 Pa. 103, '" Wayne County v. Waller, 90 Pa. 22 Atl. 867. 99, 35 Am. Rep. 636. 516 CRIMINAL AND PENAL PROCEDURE. [chap, xxvii. 654. Physicians. — The district attorney has no power to employ a physician to hold a post mortem examination. This the coroner must do, to bind the county.^^'^ See also Coroner's Physicians, § 651, supra. 655. Clerks. — The fees allowed are regulated by statute. If a case be docketed in the oyer and terminer, which belongs to the quarter sessions, the fees of the latter only can be allowed.^^* For a full dis- cussion of the charges which can be made in criminal cases by clerks, see the following cases.-'*® 656. Detectives. — The county is liable for costs to a detective ap- pointed under the act of May 23, 1887,^*" for the serving of a warrant of arrest and a commitment issued to him, and for the same fees as are payable to a constable.^*^ But the same were not allowed when the information before the justice was made by the detective and war- rants served by him, where the defendants were subsequently dis- charged.-'*'' Under the act of May 19, 1874,"^ and the act of April 13, 1876,i" providing for county detectives, the county is not liable to them for constables' fees in serving warrants.'*^ 657. Railroad policemen. — liailroad policemen commissioned under the act of May 27, 1865, are private officers, and are not entitled to costs in criminal prosecutions from the county, as if they were duly and legally elected constables. Such may receive compensation, how- ever, from the county for the serving of a subpcena on witnesses.^*® 658. Boarding jury. — The county is liable for the costs of boarding and lodging a jury kept together by the court in a capital case.^*'' 659. Boarding prisoners. — The cost of boarding prisoners in the county jail is chargeable to the county. !N"o provision is made to re- cover the cost of the same from the defendant.^*® It is also its duty to provide fuel.^*^^ Where a person is committed to the county jail by the mayor of a city for violating a city ordinance, as allowed by "' Hopkins V. Chester County, 1 Cheg- '" P. L. 28. ter Co. Rep. 481. "° Wiinph v. Berks County, 8 Pa. Co. "' Com. V. Moore, 4 Del. Co. Rep. 617, Ct. 465. But he may receive pay 9 Lane. L. Rev. 92. for serving a subpoena, since such serv- "° Trach v. 'Northampton County, 1 ices are not within the strict line of his Lehigh Valley L. R. 253 ; Sipler v. Clar- duty. . ion County, 8 Pa. Dist. R. 253 ; Com. "° Hamlin v. Berks County, 8 Pa. Co. ex rel. Thomas v. Philadelphia County, Ct. 402. 8 Serg. & R. 64. '" Lycoming County v. Ball, 7 Watts, ""P. L. 173. 290. "' McClain v. Lawrence County, 14 ^^ Com. v. Curren, 9 Phila. 623, 29 Pa. Super. Ct. 273. Phila. Leg. Int. 53, 2 Chester Co. Rep. '" Kerschner v. Berks County, 8 Pa. 393. Co. Ct. 347. ^'■''B. Richardson v. Clarion County, 14 »"P. L. 219. Pa. 198. g§ 660-663] COSTS. 517 act of assembly, the couELty, and not the city, must pay to the sheriff the cost of the prisoner's board.''*^ Cotinties must also pay the ex- pense of boarding their prisoners in the penitentiary,^®" in the house of refuge,^®**"- or in the insane asylum.^''"'' It lias been held that where a constable arrests a prisoner in another county, the expenses necessary for board and railroad fare are eollectr ible.^''^ Eut in McCallister v. Armstrong County, ^^"^ it was said that tliis right exists only when the prisoner is removed from the county where he commits the offense to another county. 660. Costs of serving bench warrants. — The county is not liable for costs of the sheriff in endeavoring to serve a bendi warrant issued for an escaped prisoner, where the defendant is not taken.^®'* 661. Costs of extradition. — For costs in extradition proceedings, see Fugitives from Justice, chapter v., § 102^ ante. 662. Removing prisoners to penitentiary.— By the acts of 1829 and 1831 a distinction was dra^vii between certain grades of criminal of- fenses, the state becoming liable for the costs of removal to the peni- tentiary in the more serious cases, and the county in the others.-^'* This distinction was removed by the act of April 16, ]845.^®® The costs of the sheriff for removing prisoners are regulated by the act of April 2, 1868,-'^® which allows a per diem compensation, together with mileage and expenses, for removing convicts to the penitentiary, without regard to the number of prisoners taken. His deputies are to be paid as part of the expenses.-' ^^ 663. Insane criminals. — The respective county is liable for the cost of removal and maintenance of insane criminals.-"''^ "The estate and effects of every such lunatic shall in all cases be liable to the county for the reimbursement of all costs and expenses paid by such county in pursuance of such order; but if any person acquitted on the ground of insanity shall have no estate or effects, the county, township, or place to which such lunatic may be chargeable under the laws of this commonwealth relating to the support and employ- ment of the poor shall, after notice of his detention aforesaid, be li- able for all costs and expenses as aforesaid, in like manner as if he '" Burton v. Erie, 26 Pa. Co. Ct. 478. ^^ Qeissinger v. Huntingdon County, •™ April 23, 1829, P. L. 341, § 9. 3 Pa. Co. Ct. 106. "°a Eastern district, act March 2, ^'* Lancaster County v. Roberts, 5 1827, P. L. 133, § 4. Western district, Watts & S. 505; Stephens v. Bradford act April 22, 1850, P. L. 538, § 19. County, 7 Watts & S. 438. ^"b See § 663, infra. "' P. L. 607, § 5. "" Shrope v. Northampton County, 3 '" P. L. 5, § 3. Lane. L. Rev. 123. '" Yordy v. Lebanon County, 4 Pa. ""^9 Pa. Super. Ct. 423. In case of Co. Ct. 162. necessity, food might be furnished. "'a Act May 8, 1883, P. L. 21, § 29. 518 CRIMINAL AND PENAL PROCEDURE. ' [chap, xxvu Lad become a charge upon any township not liable for his support under the laws as aforesaid."^'''' 664. Interpreters. — The compensation to be paid interpreters in certain counties is fixed by act of assembly. Thus, special provision is made for Philadelphia;'*"* for Allegheny county;'®" for Butler county;'^' and for interpreters of the German and French languages, in counties having a population of more than 150,000 and less than 300,000, where the office of interpreter exists.'®^ Ordinarily, where an interpreter can be secured at the rate of ordi- nary witness fees and mileage, no more should be allowed by the court ; and the fact that the county has overpaid such a person will not render the defendant liable for the excess.'"^ 665. Stenographers. — When a stenographer is appointed for the criminal court, his compensation is regulated by act of assembly. "The said stenographer or stenographers shall be paid a compensa- tion at the rate of $10 a day for every day actually spent in said court in the taking of notes, and be allowed and furnished all the nec- essary stationery for the performance of his, her, or their duties ; the said compensation to be paid by the state in the case of the supreme court stenographer, and by the county or counties forming the judi- cial district in the case of the stenographer or stenographers appoint- ed in said district, upon the order of the judge presiding."'** 666. Costs of witnesses. — Witnesses are entitled to the same mile- age and fees as in civil cases. Only such should be summoned as are necessary and proper;'*' and if the prosecutor summons on his own responsibility others than those subpoenaed by the district attor- ney, and without his knowledge, costs will not be allowed.'®" Even a district attorney must not summon more witnesses than are neces- sary;'*^ tliough the mere fact that all of the witnesses were not ex- amined will not necessarily prevent the allowance of fees to them.'** Under the act of May 19, 1887,'*" imposing liability upon the county in ease of misdemeanors, it is necessary for the district at- '=* March 31, 1860, P. L. 427, § 70. see Briggs v. Erie County (1881) 98 '""Act March 27, 1865, P. L. 795, § Pa. 570; Lehigh County v. Meyer OS83) 1; act February 18, 1869, P. L. 198, § 102 Pa. 479, 13 W. N. C. 166; Wilson 4. V. Philadelphia (1883) 14 W. N. C. 74. ™Aet April 14, 1838, P. L. 395, § 4; ^" Com. v. Shell, 1 Pa. Co. Ct. 41. act April 16, 1866, P. L. 941. ^'^ Com. v. EichenlauJ), 1 Pa. Co. Ct. "'Act March 28, 1870, P. L. 565, § 1. 642. See Com. v. Smith, 4 Pa. Co. a. "' Act May 18, 1876, P. L. 130, § 1. 321; Com. v. Bitzer, 3 Lane. L. Rev. 78. '" Com. V. Hess, 18 Pa. Co. Ct. 542. '»' Com. v. Worrall, 1 Pa. Co. Ct. 42. •"May 24, 1887_, P. L. 199, § 4. As ^'^ Com. v. Wood, 3 Binn. 414. to the compensation of stenographers '""P. L. 138, § 1. under the acts which this act supplies, § 667] COSTS. 619 tomey to certify that the witnesses were subpoenaed by his order and were in attendance and necessary to the trial of the case. Double witness fees are not to be allowed. Therefore, when subpoenaed in two cases on the same day, but one set of costs is payable to the wit- ness;^'"* or where attending the same day before a committing mag- istrate and in court, no fee for the former will be allowed.^^^ Witness fees are not to be allowed where the person called is an ofScer of the court; but the clerk of the courts is not such an offi- cer;*''^ nor is a member of the bar who gives all of his time to other business.^^^ Justices of the peace and aldermen, and constables regu- larly subpoenaed, are entitled to fees except on one day of court, when it is their duty to make their returns, at which time they are officers of the court.^''* If the witness be in attendance as a defendant in another case he cannot be allowed witness fees in the one in which he testifies.*'^^ Or if wholly incompetent and irrelevant, fees cannot be taxed against the losing party.^''® But persons attending in good faith, on request", who are neither subpoenaed nor examined, may be allowed fees.^^^ Persons committed as witnesses to felonies, in default of bail, are not entitled to fees for the time during which they were impris- oned.^^* IsTonresident witnesses are not entitled to mileage from their place of residence, but only from the Pennsylvania state line by the usual route traveled.^"® If witnesses in attendance at court be ordered by the court to return home on Saturday, and come back on Monday, they are entitled to double mileage fees.^^" The prosecutor in criminal cases is not liable in an action of debt for the costs of the commonwealth's witnesses, and a promise to pay them is void for vrant of consideration.^®^ Though, as has been no- ticed, he may have the costs of prosecution imposed upon him. 667. Costs of prosecution chargeable to townships and school dis- "° Com. V. Curren, 2 Chester Co. Eep. "' Com. v. Lucas, 24 Pa. Co. Ct. 126. 393, 9 Phila. 623, 29 Phila. Leg. Int. 53; "'Com. v. Smith, 4 Pa. Co. Ct. 321. Kirkendall v. Luzerne County, 11 Phila. "' Sluchko v. Luzerne County, 16 Pa. 577, 33 Phila. Leg. Int. 313, 5 Luzerne Co. Ct. 221, 7 Kulp, 526, 4 Pa. Dist. R. Leg. Reg. 33. 418; Howard v. Beaver County, C Pa. ™ Com. V. Lovett, 2 Pa. Co. Ct. 375. Co. Ct. 397, 23 W. N. C. 574. "' Com. V. McArdle, 3 Pa. Dist. R. "° Com. v. Boyer, 20 Pa. Co. Ct. 638, 258. 7 Pa. Dist. R. 175. "'Com. V. Lucas, 24 Pa. Co. Ct. 126. ^^ Com. v. Bmith, 4 Pa. Co. Ct. 321. "* Kirkendall v. Luzerne County, 11 "^ /8*rem v. ZeipZer, 1 Watts & S. 259 ; Phila. 577, 33 Phila. Leg. Int. 313, 5 Com. v. Torrey, 1 Legal Record Rep. Luzerne Leg. Reg. 33. 298; Shartser v. Butter, 1 Peiirson """Com. V. Lovett, 2 Pa. Co. Ct. 375. (Pa.) 543. See Com. v. Smith, 4 Pa. Co. Ct. 321. 620 CRIMINAL AND PENAL PROCEDURE. [chap, xxvii, triots. — Under the act of February lY, 1820,*®* relating to the prose- cution of the owners of racing horses, the overseer of the poor or the supervisor of the highways is directed to prosecute, and in case of faihire to convict he shall be reimbursed for the costs sustained, out of any moneys appropriated for the use of the poor or for the im- provement of the public highways. Costs of prosecution under the compulsory education act are to be paid by the defendants, if found guilty. Should it appear, however, that sufficient cause of absence exists, the costs of all such proceedings shall be paid out of the dis- trict funds upon a proper voucher approved by the board of directors or controllers.-'** 668. Taxation of costs. — Costs in criminal actions are taxed by the clerk of the criminal courts. The time for so doing is usually regu- lated by rules of court. Exceptions to the taxation may be made by the party interested, and an appeal taken to the court to determine the merits of the case. An execution cannot be properly issued un- til such taxation has been made.'** Objections must be made within the time provided. Thus, where the report of the commissioners to tax costs is confirmed nisi, to be confirmed absolutely in three days, if no exceptions be filed, exceptions filed five days thereafter are too late, and the report will be confirmed absolutely.'*" On appeal the complaining party cannot avail himself of the failure of the court to sentence him to pay the costs, where he has appeared and taxed his costs.* *® It would seem that on appeal to the supreme or superior court the record alone can be examined, as in the case of writs of error from such taxation in the court of common pleas.**^ Where an appeal is taken from a judgment entered on a case stated, and the appellate court finds error as to certain items, it has no power to modify, and can only affirm or reverse, unless the case stated stipulates that it may.'** 669. Eeimbursement of county. — Where the county pays costs, it is to be reimbursed from the parties liable, if possible.'*® If there "'7 Smith's Laws, 244, § 1. "^ McClain v. Lawrence County, 14 ""Act July 11, 1901, P. L. 658, § 5. Pa. Super. Ct. 273. Here the plaintiff "** Barger v. WashAngton County, 12 was directed to withdraw his claim as Pa. 251. to certain items within thirty days, "' Com. V. Selznich, 20 Pa. Co. Ct. otherwise to be reversed. 128. ™Act March 31, 1860, P. L. 427, § '"'Com. V. Machell, 8 Kulp, 206. 64; act May 11, 1878, P. L. 132, § 1; "' McCauley's Appeal, 86 Pa. 187. act May 19, 1887. P. L. 138. The question was left open when raised as to criminal cases, in lAnn v. Com. 93 Pa. 285. § 670) COSTS. 521 be a collection of a forfeited recognizance, the costs paid by the coun- ty are deductible therefrom.^®" 670. Payment of costs in certain counties. ^^^ ""Act July 30, 1842, P. L. 454, § 26; Glenn's Case, 26 Pa. Co. Ct. 488. See this case for the effect of the act of May 11, 1901, P. L. 165, providing for the payment of a portion to law libra- ries, thereon. "' For the county of Luzerne, see act of April 9, 1863, P. L. 249, § 1 ; see act of March 29, 1867, P. L. 613, for costs in Dauphin county; acts of Janu- ary 22, 1869, P. L. 100, and March 31, 1870, P. L. 693, as to Schuylkill county; act of February 19, 1873, P. L. 134, as to Fayette county; act of April 15, 1869, P. L. 1043, as to Cameron county; act of March 20, 1869, P. L. 458, § 3, as to Chester county; act of April 4, 1866, P. L. 502, as to Mercer county; and act of April 10, 1873, P. L. 640, as to York county. See York County v. Crafton (1882) 12 W. N. C. 527. CHAPTEE XXVin. PAEDON. 671. By the President. 672. By the governor. 673. Rules of the board of pardons. 674. Service of sentence. 675. Proof of pardon. 676. Extent of pardon. 677. Wlien elfective. 678. Conditional pardon. 679. Effect of fraud. 680. ElTect of pardon. 681. Competency of pardoned prisonei- as witness. 671. By the President.— The President of the United States shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.^ 672. By the grovernor.— The governor of Pennsylvania shall have power to remit fines and forfeitures, to grant reprieves, commutations of sentence, and pardons, except in cases of impeachment ; but no par- don shall be granted nor sentence commuted except upon the recom- mendation and writing of the lieutenant governor, secretary of the commonwealth, attorney general, and secretary of internal affairs, or any three of them, after full hearing, upon due public notice, and in open session ; and such reoonmiendation with the reasons therefor, at length, shall be recorded and filed in the ofiioe of the secretary of the commonwealth.^ 673. Rules of the board of pardons. — First. The board will meet in open session to consider applications on the third Wednesday of each month, at 10 o'clock a. m., in the supreme court room, at Harris- burg. Second. The board must be furnished with proof that notice of ap- plication for pardon has been published once a week for two consec- utive weeks, in a newspaper printed, in the county or city in which conviction was had ; said proof to be made by the affidavit of the pub- ' U. S. Const, art. 2, § 2. For effect, ' Pa. Const, art. 4, § 9. see Hoffman v. Coster, 2 Whart. 453. 522 § 673] PARDON. 823 lisher of the newspaper tliat the publication has been made as re- quired by this rule. Third. Kotice of the application must be given td the judge who tried the ease, and to the district attorney, or attorney who prose- cuted, stating when the application will be made, and the grounds or reasons upon which the application is based; and no grounds other than those contained in such notice will be entertained by the board. Proof must be made that such notice, with a copy of said reasons, was served upon said judge and district attorney, or attorney who prose- cuted. Fourth. ISTotices of application for pardon of persons convicted of crimes committed in any city of this commonwealth must also be given to the mayors and heads of police department of said cities respective- ly, and proof of the service of such notice be jSled in each case. Fifth. The following papers must accompany every application for pardon : 1. A certified copy of the entire record, including docket entries, minutes of the court, copy of indictments, pleas, and all other papers on file relating to the ease. 2. The notes of evidence taken on the trial, and letters from re sponsible persons in the community where the crime was committed, should be furnished. If no notes of testimony were taken, that fact should be stated in writing to the board. 3. A brief statement of the reasons sustaining the application, the facts in the form of a history of the case, and a schedule of papers will be required in every application. Four separate copies of the his- tory of the case, reasons, and schedule of papers and letters must also be filed, so that each member of the board may have a copy. Sixth. All applications and correspondence must be addressed to or filed with the recorder or clerk of the board at Harrisburg, that the same may be prepared for presentation to the board at its next session. Applications will only be heard at open sessions of the board, and will not be considered by any individual member thereof. No application will be heard or considered unless the same, and the papers upon which it is based, including proof of notice required, have been filed at least ten days before said session, and in no instance will this rule be relaxed. Seventh. Application for rehearing will be placed on the calendar, and will only be heard at open sessions of the board. In all cases the reasons for a rehearing or reconsideration must be submitted in writ- ing, at least ten days before the session of the board at which the ap- 624 CRIMINAL AND PENAL PKOCEDUUE. [chap, xxviii. plication is to be made, and the name and address of the attorney should be furnished. JSTo application that has been refused by the board will be reheard or reconsidered, unless substantial grounds for reopening the case are formally presented and approved by the board, and when submitted again, the publication and notices required by rules 2d, 3d, and 4th must be made anew, and proof thereof, together with the additional reasons, filed with the original papers, according to the provisions of rule 6th. Eighth. All facts relied upon to sustain any allegation, as a ground for pardon, must be proved by depositions taken within the jurisdic- tion of the court in which the conviction was had, before some person authorized to administer oaths, upon notice to the district attorney and to the attorney who assisted in the prosecution of the case, if any, and no fact will be considered by the board unless so proved, except such as appear in the record and notes of evidence taken on the trial, the statement of the judge before whom the case was tried, or of the officers or persons connected with the prison in which the applicant shall be detained. Ninth. All applications properly on file will be considered by the board, whether represented by counsel or not. iNot more than fifteen minutes will be allowed to either side of an application in the oral presentation of the same, except in capital cases, unless by special permission of the board. 674. Service of sentence. — A large number of the pardons actually granted were for the purpose of removing disabilities resulting from conviction of crime.^ As a result, § 181 was inserted in the Penal Code, which provides that "when any person hath been or shall be convicted of any felony not punishable with death, or any misdemean- or punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted: Pro- vided, That nothing herein contained, nor the enduring of such pun- ishment, shall prevent or mitigate any punishment [to] which the offender might otherwise be lawfully sentenced on a subsequent con- viction for any other felony or misdemeanor, and that the provisions of this section shall not extend to the case of a party convicted of wil- ful and corrupt perjury."* • Report in Penal Code, 38. 'Act March 31, 1860, P. L. 382, § 181. §§ 676-678] PARDON. 525 675. Proof of pardon. — When a pardon has been granted by the governor, it may be specially pleaded.® Where the proof of pardon is necessary to show the competency of a witness offered, that fact must be established by the party calling the witness. This is ordinarily done by offering the pardon Avhich has been granted.® And it is for the lower court to determine whether it covers the offense of which the defendant was found guilty.'^ The warrant itself should be produced or accounted for. Without this the fact cannot be proved by offering a copy of the minutes of the proceedings had before the governor, by which it appears that a pardon was granted.^ But it has been held that a pardon was sufficiently proved when the witness stated, in an- swer to the prisoner's counsel, that a pardon had been granted for a former offense, and a pardon for a second offense was offered.* 676. Extent of pardon. — The governor may pardon the defendant of one of two offenses of which he has been convicted,^" or remit the balance of the sentence remaining imserved.^^ When granted, it is limited to the person to whom given and the offense designated. Thus, where the principal is pardoned it will not accrue to the benefit of the accessory.^^ Not only may a sentence be relieved from, but judg- ment upon a forfeited recognizance may be remitted.^ ^ 677. When effective. — ISTo rights accrue to the defendant under a pardon granted until it has been actually or constructively delivered to him. Thus, where it had been given to a United States marshal, and it was discovered that the representation on which it was granted was fraudulent, it was recalled. •** It has been said that a discharge should not be granted by prison authorities upon the presentation of the pardon until it is ordered by the court.^® 678. Conditional pardon. — The governor may annex to a pardon any condition, whether precedent or subsequent, not forbidden by law ; and it lies with the grantee to perform it. If he does not, in case of a condition precedent the pardon does not take effect, and in case of a condition subsequent the pardon becomes null. If not performed the original sentence remains in full force and may be carried into 'Com. V. Bouse, 10 Pa. Super. Ct. ^ Boifman v. Coster, 2 Whart. 453. 259; Com. v. Ahl, 43 Pa. 53. ^- Com. v. House, 10 Pa. Super. Ct. 'Diehl V. Rodgers, 169 Pa. 316, 32 259. Atl. 424. "Com. v. Denniston, 9 Watts, 142; ' Com. iise of Lawson v. Ohio & P. R. Com. v. Kelly, 9 Phila. 586, 29 Phila. Co. 1 Grant Cas. 329. Leg. Int. 412. * Spaulding v. Saxton, 6 Watts, 338. " Com. eon rel. Crosse v. Malloway, 44 ' Hotvser v. Com. 51 Pa. 332. Pa. 210, 84 Am. Dec. 431. " Duncan v. Com. 4 Serg. & R. 449. " Com,, v. BMsler, 2 Phila. 256. 536 CRIMINAL AND PENAL PROCEDURE. [chap. xxvm. effect. Thus the pardon may be granted, provided the defendant will leave the country, and upon his failure to do so he may be recom- mitted.^" 679. Effect of fraud. — If the pardon be secured by reason of a fraudulent representation, it may be set a&ide,^''^ even though the pris- oner be not a party to the fraud.-'** Though if no fraud be shown it will not be disregarded merely because the grounds on which it is granted are misstatements of f acts.-* * The pardon will not be treated as of no effect because the date of conviction is incorrectly stated, if the lower court determines that the offense in question is referred to,^" nor for a mere failure to recite the sentence in full as required by rules of the pardon board.^^ 680. Effect of pardon. — A pardon may relieve from imprisonment and fines inuring to the use of the commonwealth, though the fine be not expressly released,^^ or may remit a judgment on a forfeited re- cognizance.^^ But only fines and penalties payable to the state may be remitted, and not such as are ordered for the benefit of the inform- er.^* Ifor will it give the prisoner the right to secure the return of property already forfeited, when the pardon does not provide for res- titution.^'' If the pardon be pleaded before costs are imposed by the sentence, the defendant is also relieved from the payment of these. ^" But if pleaded after sentence and costs are imposed, they be- come vested in the officers entitled thereto, and the pardon will not relieve the prisoner from the payment of the same.^^ 681. Competency of pardoned prisoner as witness. — A general par- don by the governor restores the competency of the defendant as a witness,^ ^ as does a pardon releasing the defendant from further sen- tence on the payment of costs. ^® And a pardon after a conviction of ^'Flavell'x Case, 8 Watts & S. 197; Kellij, 9 Phila. 586, 29 Phila. Leg. Int. Com. V. Eaggerty, 4 Brewst. (Pa.) 326 412. (the contrary was held in another ease ^ Shoop v. Com. 3 Pa. St. 126. on the ground that such a condition was '' Aldrich v. Jessup, 3 Grant Cas. 158, void) ; Com. v. Hatsfield, 1 Clarlc (Pa.) ^ Com. v. Hitchman, 46 Pa. 357; Com. 177. V. AM, 43 Pa. 53; York County v. Dal "Com. V. Kelly, 9 Phila. 586, 29 liousen, 45 Pa. 372. Phila. Leg. Int. 412. "Ex parte McDonald, 2 Whart. 440 "° Com. ex rel. Crosse v. Halloway, 44 Duncan v. Com. 4 Serg. & R. 449 Pa. 210, 84 Am. Dee. 431. Schuylkill County v. Re^snyder, 46 Pa' '"Com. V. AM, 43 Pa. 53. 446; Playford v. Com. 4 Pa. 144; Com. '° Com. use of Lawson v. OMo d P. v. SMck, 61 Pa. 495. For the effect of R. Co. 1 Grant Cas. 329. pardon after conviction of fraudulent " Hester v. Com. 85 Pa. 139. Here, insolvency, on the prisoner's right to omitted the portion of the sentence di- discharge under the insolvency act of recting restoration. 1814, see Bramson's Case, 1 Ashin. "Com. V. SUsler, 2 Phila. 256; Cope (Pa.) 84. V. Com. 28 Pa. 297. =» Com. v. Eanlon, 3 Brewst. (Pa > "Com. V. Denniston, 9 Watts, 142; 401. Com. V. Shick, 61 Pa. 495; Com. v. '^ Hoffman v. Coster, 2 Whart. 453. § 681] PARDON. 531 perjury removes the disabilities which accrued at common law, or by statutory enactments in Pennsylvania.'"' The fulfilment of sentence is equivalent to a pardon, except in the case of wilful and corrupt perjury. ^^ '"DtefcJ v. Uodgers, 169 Pa. 316, 32 "Act March SI, 1860, P. L. 582, § Atl. 424. 181. OHAPTEE XXIX. DESERTION AND SURETY OF PEACE. 682. Character of proceeding. 683. Proceedings iinder the act of 1836. 684. Proceedings in quarter sessions under the act of 1838. 685. Eight to appeal. 686. Desertion of wife under the act of 1853. 687. Desertion under the act of 1S67. 688. Jurisdiction. 689. Bail. 690. Information and return. 691. Statute of limitations. 692. Order for relief. 693. When granted. 694. Modification of order. 695. Security to pay. 696. Enforcement of payment. 697. Discharge of prisoner. 698. Recommitment of prisoner. 699. Second prosecutions. 700. Costs. 701. Appeals. 702. Support of relations. 703. Order for relief. 704. Enforcement of order. 705. Surety of the peace. 706. By whom and when taken. 707. Costs. 682. Character of proceeding. — Statutes providing for orders of support in desertion proceedings are remedial in their nature, and not penal, and the act of desertion does not constitute a legal crime. Thus, it has been held not to be a crime within the meaning of ar- ticle 4, § 2, of the Constitution of the United States, relating to ex- tradition;^ nor within the statute of limitations in relation to crime f nor within the scope of a statute imposing liability upon the county for costs in cases discharged by justices of the peace.* But ^HaitradXtion Ca^e, 9 Pa. Co. Ct. County Directors of Poor v. Mercer, 2 27. Clark (Pa.) 75. 'Oom. V. Kerley, 8 Pa. Dist. R. 671, ' Sepp v. Lehigh County, 4 Del. Co. .30 Pittsb. L. J. N. S. 162; Delaware Rep. 391, 2 Northampton Co. Rep. 337. ."i28 8 683] DESERTION AND SURETY OF PEACE. 629 it is so far criminal tliat the defendant cannot be compelled to testify against himself.* 683. Proceedings under the act of 1836. — Ey the act of 1836 it is provided that "if any man separate himself from his wife without reasonable cause, or shall desert his children, or if any woman shall desert her children, leaving them a charge upon the district, in any such case it shall be lawful for any two magistrates of the county, up- on complaint made by the overseers of the district, to issue their war- rants to such overseers, therein authorizing them to take and seize so much of the goods and chattels, and receive so much of the rents and profits of the real estate, of such man or woman as in the judg- ment of the said magistrates shall be sufficient to provide for such wife, and to maintain and bring up such children, which sum or amount shall be specified in such warrant ; but if sufficient real or per- sonal estate cannot be found, then to take the body of such man (or woman), and bring him (or her) before such magistrates at a time to be specified in such warrant."" For Philadelphia county, one mag- istrate is sufficient.® The complaint required to be made under this section must be by the guardians of the poor, and not by an individual.'^ Except in Philadelphia, by reason of the act of 1853, the proceeding must be instituted before two aldermen.* To enable the guardian of the poor to proceed, the party deserted must have had a settlement in the dis- trict,® By the legislation above quoted, the overseers are empowered to seize sufficient property of the defendant to furnish support. The aldermen must determine the amount necessary, and they cannot transfer their discretionary power to the overseer.^" It is not neces- sary that the defendant have notice as to the seizure.^^ The goods and chattels, or rents and profits of the real estate, may be taken. In- come from trust funds may likewise be seized, where the cestui que trust 6an control the income in the hands of the trustee. ^^ But in * Com. V. Reed, 5 Pa. Dist. R. 57. "° Guardians of Poor v. Picard, 1 "June 13, 1836, P. L. 539, § 29. Serg. & R. 239. "Act April 14, 1853, P. L. 418, § 8. ^^ Overseers of Poor v. Smith, 2 Serg. See also, for this county, act March 31, & R. 363. 1812, 5 Smith's Laws, 391. For Pitts- "Decker v. Directors of Poor, 120 Pa. burg, see act April 11, 1848, P. L. 532. 272, 13 Atl. 925; Board of Charities £ ''Com. V. Nathans, 2 Pa. St. 138; Correction v. Kennedy, 3 Pa. Dist. R. Com. V. Hill, 2 Browne (Pa.) 212; Wor- 231, 34 W. N. C. 83; Board of Chari- rell's Case, 61 Pa. 105. ties £ Correction v. Moore, 19 Phila. 'Aspden's Appeal, 24 Pa. 182. 540, 45 Phila. Leg. Int. 216; Directors 'City V. Bailey, 8 Phila. 485, Legal of Poor v. Gorreoht, 7 Lane. L. Rev. Gaz. Rep. 87, 2 Legal Gaz. 394. 410. Pa. Grim. Proc.— 3.4. 680 CRIMINAL AND PENAL PROCEDURE. [chap. xxix. cases of spendthrift trust, where the defendant has no control, there can be no seizure.^* Money in the hands of an executor, which the orphans' court has ordered to be paid to a legatee, may be seized.^* Property held by wife as administratrix cannot be.*' Nor can prop- erty be taken against a creditor whose claim antedates the seizure.*® Under the act of 1836 no warrant can issue until it shall appear that sufficient property cannot be found.*'' But if sufficient property cannot be, then the defendant should be brought before the magis- trate. "It shall be lawful for such magistrate on the return of such warrant to require security from such man or woman for his or her appearance at the next court of quarter sessions of the county, there to abide the order of the court, and, for want of such security, to commit such person to the jail of the county."*^ In lieu of sufficient bail, he may be committed until the next term of court** 684. Proceedings in quarter sessions under the act of 1836. — "The warrant aforesaid shall be returned to the next court of quarter ses- sions of the county, when it shall be lawful for the said court to make an order for the payment of such sums as they shall think reasonable for the purpose aforesaid, and therein authorizing the overseers to dispose of the goods and chattels aforesaid, by sale or otherwise, and to collect and receive the rents and profits aforesaid, or so much of either as, in the judgment of the court, shall be sufficient for the pur- pose aforesaid ; but if there be no real or personal estate, it shall be lawful for the court to commit such person to the jail of the county, there to remain until he or she comply with such order, give security for the performance thereof, or be discharged by due course of law."^° The hxisband appearing under this act to answer the charge of de- serting his wife cannot be ordered to pay for the support of his child, when such complaint was not made in the original charge.^* Nor can one be sentenced under it for failure tx> support a child who was self-supporting at the age of twenty-one, but has since become unable to care for himself."* But a proceeding can be instituted under § 28 of this act relating to poor relations. "Board of Charities & Correction v. "Act June 13, 1836, P. L. 539, § 30. Lockard, 198 Pa. 572, 48 Atl. 496, Re- The security may be taken by one mag- versing 13 Pa. Super. Ct. 569; Thachara istrate. Com. v. Nathans, 2 Pa. St. V. Mintser, 100 Pa. 151, 39 Phila. Leg. 138. See act March 26, 1846, P. L. 173. Int. 459. for Philadelphia. "Philadelphia v. Brennan, 18 Pa. Co. " Com. v. Keeper of Jail, 4 Serg. & R. Ct. 59, 5 Pa. Dist. R. 116. 505. " Guardians of Poor v. Rolerts, 5 =" Act June 13, 1836, P. L. 539, § 31. Serg. & R. 112. "^ Anthony's Appeal, 2 Phila. 155. ^'Thomas-v. McCready,5 Serg.&R.387. "•' Mt. Pleasant Overseers v. Wilcoit, " Com. V. 'Nathans, 2 Pa. St. 138 ; 12 Pa. Co. Ct. 447, 2 Pa. Dist. R. 62&, Worrell's Case, 61 Pa. 105. g§ 685-688] DESERTION AND SURETY OF PEACE. 531 685. Right to appeal. — "If any person shall be aggrieved by the judgment of any one or more magistrates in pursuance of this act, he may appeal to the next court of quarter sessions for the county in which such magistrates reside (except in cases hereinbefore specially provided for) whose decision in all such cases shall be final and con- clusive."^* 686. Desertion of wife under the act of 1855.— The act of May 4, 1855, which provides that "whensoever any husband from drunken- ness, profligacy, or other cause shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privi- leges secured to a feme sole trader under the act of February 22, 1718,"^* does not confer upon deserted Avives all the privileges set forth in the act of 1718, but only those which inhere in women as feme sole traders; namely, tliose affecting their rights in their own estate and earnings, and their right to trade. The act does not sus- tain an application for an attachment against the real estate of an absent husband by a deserted wife.^^ 687. Desertion under the act of 1867. — "In addition to the reme- dies now provided by law, if ajiy husband or father, being within the limits of this commonwealth, has or hereafter shall separate himself from his wife or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain his wife or children, it shall be lawful for any alderman, justice of the peace, or magis- trate of this commonwealth, upon information made before him, un- der oath or affirmation by his wife or children, or either of them, or by any other person or persons, to issue his warrant to the sheriff or to any constable for the arrest of the person against whom the in- formation shall be made as aforesaid, and bind him over, with one sufficient surety, to appear at the next court of quai-ter sessions, there to answer the said charge of desertion."^® 688. Jurisdiction. — The court will have jurisdiction under this legislation, even though the desertion took place in another state.^''^ And the court of quarter sessions of any county where complaint is ''Act June 13, 1836, P. L. 539, § 44; Delaware, and Potter counties) ; Adel- Overseers of Poor v. Smith, 2 Serg. & man v. Steele, 6 Luzerne Legal Reg. 69, R. 363. 34 Phila. Leg. Int. 134; Keller v. Com. «1 Smith's Laws, 991. 71 Pa. 413. "Act Mav 4, 1855, P. L. 430, § 2; "Com. v. Hart, 12 Pa. Super. Ct. Von HelmoU v. Von Helmold, 19 Pa. 605; Barnes v. Com. 11 W. N. C. 375, 2 Super. Ct. 217. Pennyp. 506, 2 Kulp, 59. Contra, City =»Act April 13, 1867, P. L. 78, § .1 v. Bailey, 8 Phila. 485, Legal Gaz. Rep. (this act repealed local acts of Febru- 87, 2 Legal Gaz. 394; Com. v. Wil- ary 27, 1867, relating to Luzeme, Law- marth, 7 Luzerne Legal Reg. 197, 1 Sus- renee, Lancaster, Crawford, Erie, York, quehanna Legal Chronicle, 45. 633 CRIMINAL AND PENAL PROOEDUKE. [chap. xxix. made has jurisdiction of the proceedings to enforce support of the deserted wife, without regard to the settlement or residence of the de- fendant husband, and without reference to where the original de- sertion took place, though "the court would not sustain a proceeding if instituted at a distance from the county where the defendant re- sides, for the purpose of persecution or annoyance. The action must be bona fide and witliin the spirit and meaning of the law."^^ 689. Bail. — For bail in desertion proceedings, see chapter vii., ante. 690. Information and return. — "The information, proceedings thereon, and warrant shall be returned to the next court of quarter sessions."^" If the first warrant issued be returned non est inventus, an alias warrant may be issued without the making of a new infor- mation."" It is too late to object after the order of support is made, that the transcript is not accompanied by the information on oath or by the warrant. ^^ 691. Statute of limitations. — For the limitation of proceedings for desertion, see §§ 359 and 682, ante. 692. Order for relief. — In cases of desertion the court of quarter sessions may order the defendant, if of sufiicient ability, to pay such sum as said court shall think reasonable and proper for the comfort- able support and maintenance of said wife or children or both, not ex- ceeding $100 per month, and may commit such person to the county prison, there to remain until he comply with said order or give se- curity by one or more sureties to the commonwealth, and in such sum as the court shall direct for the compliance therewith.^^ The order need not state that the defendant has suflBcient ability to pay. It will be presumed that this fact was found by the court.^^ It is not necessary that defendant be present when it is made, where he vohmtarily absents himself.^* 693. When granted. — The statute, being remedial in its nature, is to be liberally construed, and an order has been made even where the parties have separated in pursuance of an agreement, where ^ Com. V. Tragle, 4 Pa. Super. Ct. 159, '" Com. v. Williams, 2 Del. Co. Eep. 40 W. N. C. 350; Demott v. Com. 64 204, 6 Law Times, N. S. 187. Pa. 302; Com. v. Wall, 4 Pa. Dist. R. ''Com,, v. Litzenberger, 15 Phila. 414, 32(), 1 Lack. Legal News, 45; Keller v. 39 Phila. Leg. Int. 198; Barnes v. Com. Com. 71 Pa. 413. See Contra, Com. v. 11 W. N. C. 375, 2 Pennyp. 506, 2 Kvilp, Douglass, 32 Pittab. L. J. 368, 2 Lane. 59; Com. v. Hart, 12 Pa. Super. Ct. 605. L. liev. 179, where the wife voluntarily "Act April 13, 1867, P. L. 78, § 2. left the county and instituted the pro- " Com. v. Hart, 12 Pa. Super. Ct. 605. ceeding elsewhere. "* Com. v. Steiger, 12 Pa. Co. Ct. 334, "Act April 13, 1867, P. L. 78, § 2. 2 Pa. Dist. R. 493, 10 Lane. L. Rev. 11. §§ 694. 695] DESEKTION AND SDIIETY OF PEACE. 533 the wife is without means of support^'* It will be made thoiigh a husband has obtained a divorce in another state, which is in- valid, no notice of the proceedings having been given to tlie wife.^* Or where she is addicted to the morphine habit.^^ But it vidll not be granted during the pendency of a divorce proceeding, where ali- mony has already been ordered. ^^ Or where the wife is living in improper relations with another.^^ If the defendant be willing to take the children and maintain them, he should not be compelled to pay another for their support.*" And only future maintenance shoixld be directed." And even if the order is made, the husband is not de- prived of parental rights, though, if he applies for their custody, he must satisfy the court that it is for the best interests of the clu'ldren.*- 694. Modification of order,— The court has the discretionary power to revoke or modify the order entered.*^ But it will not do so on tlie ground of release, where that question is pending before a jury.*'* Or where the wife has been fraudulently persuaded to live with the husband, for the sole purpose of obtaining a modificatiou of the decree.*^ Or where the husband has gone into another state and cohabited with another woman.*^ An application for modification will not be quashed merely because a mistake has been made in the name of the respondent.*^ The order may be increased.*® But ordinarily this will not be done, particularly where it is not shown that the ability to pay has increased.*' 685. Security to pay. — See also Bail, chapter vii.^ ante. The act of 1867 requires security for compliance with the deeree. If a recognizance be given, an affidavit of defense to the scire facias thereon must show a compliance with its condition.^" The surety on the bond of the defendant may secure a rule to show cause why the "Com. V. Orth, 2 Pearson (Pa.) 446. v. Ruff, 3 Pa. Dist. R. 561; Com. v. "Com. V. McCracken, 8 Del. Co. Rep. Grau, 13 Lane. Bar, 54; Com. v. Her- 408; Com. v. Steiger, 12 Pa. Co. Ct. 334, lert, 7 Lack. Legal News, 14. 2 Pa. Dist. E. 493, 10 Lane. L. Rev. 11. "Com. v. Eilbert, 14 York Legal Rec- " Com. V. Allport, 2 Blair, 24, 10 Pa. ord, 149. Dist. R. 659, 32 Pittsb. L. J. N. S. 185. " Com. v. Nodfiic, 10 Kulp, 305. " Com. eso rel. Tinkler v. Tinkler, 11 " Com. v. Sperling, 5 Kulp, 497, 8 Pa. Pa. Dist. R. 111. Co. Ct. 491. " Com. V. Eley, 25 Pa. Co. Ct. 351, 10 " Com. v. Ruff (No. 2), 3 Pa. Dist. R. Kulp, 306, 10 Pa. Dist. R. 647. 562. *> Keller v. Com. 71 Pa. 413; Com. v. " Com. v. Herr, 16 Pa. Co. Ct. 598. 12 Ward, 5 Pa. Co. Ct. 479; Demon v. Com. Lane. L. Rev. 361. 64 Pa. 302. *° Com. v. Bentley, 18 Lane. L. Rev. ''ICeiier V. Com. 71 Pa. 413. 38. "Com. ex rel. Demot v. Demot, 7 " Berkstresser v. Com. 127 Pa. 15, Pbila. 624. 17 Atl. 680. " Com. V. Johns, 5 Kulp, 238 ; Com. 684 CRIMINAL AND PENAL PUOCEDURE. [chap. xxix. principal should not be surrendered and the applicant discharged from further liability,^^ though relief from liability is a matter of grace, and not of right.^^ 696. Enforcement of payment. — The order of the court may be en- forced by immediate commitment, as provided by the act of 1867. Usually this method is pursued upon a failure to comply with the conditions imposed. Where this is impossible because of the absence of the defendant, it has been held to be the proper practice to issue a ■writ of fieri facias and an attachment, but not a capias ad satisfacien- dum.^^ 697. Discharge of prisoner. — Discharge from imprisonment in de- sertion proceedings because of insolvency does not depend on the act of 1836. In these cases "it shall be lawful for the said court at any time after three months, if they shall be satisfied of the inability of such person to comply with the said order and give such security, to discharge him from imprisonment."^* Prior to this enactment the discharge was of right.^^ Now the discharge is within the control of the court,®" and its refusal will not be reversed as an abuse of dis- cretion, where it is satisfied of defendant's ability to pay.^'^ If it sees fit, it may make the discharge conditional upon the signing of a bond by the defendant®* The acts of 1883 and 1887, providing for the discharge of con- victs after service of their terms of imprisonment, without resorting to the insolvent laws, applies only to criminals sentenced to a fixed or definite term, and not to defendant in desertion proceedings.®* 698. Recommitment of prisoner. — The defendant does not have the right to a discharge under the insolvent laws in three months. Under the act of 1869 the court must be satisfied of his inability to pay.®" And it has been said that such discharge acts merely to relieve from instalments due.®^ But if a release be granted on the ground of in- solvency, there seems to be no reason why the same rule should not apply as in cases of fornication and bastardy, where the prisoner re- mains liable for instalments due, but is not subject to rearrest.®^ " Com. V. Jones, 90 Pa. 431 ; Phila- " Com. v. James, 142 Pa. 32, 21 Atl. delphia v. Owens, 12 W. N. C. 292. 805. ''Miller v. Com. 127 Pa. 122, 17 Atl. "'Act June 13, 1883, P. L. 99, sup- 864. plied by the act May 6, 1887, P. L. 86 ; ''Com. V. Steiger, 12 Pa. Co. Ct. 334, Com. v. Velson, 1 Lane. L. Rev. 117. 2 Pa. Dlst. R. 493, 10 Lane. L. Rev. 11. These acts seem to have been applied in "Act April 15, 1869, P. L. 75, § 1. Com. v. Bowman, 6 Kulp, 176, though "Texas's Case, 1 Ashra. (Pa.) 175. the question is not discussed. "Davis's Appeal, 90 Pa. 131. "Davis's Appeal, 90 Pa. 131. " Com. V. Baldwin, 149 Pa. 305, 24 °' Newhouse v. Com. 5 Whart. 82. Atl. 283. " Com: v. Dee, 14 Pa. Super. Ct. 640. |§ 699-702] DESERTION AND SURETY OF PEACE. 535 699. Second prosecutions. — If after the hearing of desertion pro- oeedings the prisoner be discharged, a subsequent proceeding cannot be begun for the desertion occurring prior to the first arrest. If there be no new offense subsequent to the dismissal of the first pro- ceeding, it will act as a bar,"* though a discharge of the first case for failure of a wife to appear, due to a promise by defendant to live with her, will not prevent a subsequent arrest, there being a new desertion after such promise;®* or where the first complaint was by the wife, and the second by the grandfather to secure the main- tenance of the children.®^ A valid and reasonable deed of separation, not fraudulently procured, will have the same effect as a prior ac- quittal of the desertion, and the criminal proceeding for the offense occurring then or prior thereto cannot be maintained.®® It makes no' difference that the husbajid has ceased to make the stipulated pay- ments.®^ Likewise, a former conviction, imprisonment, and discharge from jail will bar a subsequent prosecution for a desertion occurring prior to the first arrest.®* Of course the rule would be otherwise if there was a resumption of marital relations after the first conviction, and a new desei'tion.®® 700. Costs. — For cests in such proceedings, see § 645, ante. 701. Appeals. — For appeals in such proceedings, see § 597, ante. 702. Support of relations.— 'The father and grandfather, and the mother and grandmother, and the children and grandchildren of ev- ery poor person not able to work shall, at their own charge, being of sufficient ability, relieve and maintain such poor person at such rate as the court of quarter sessions of the county where such poor person resides shall order and direct, on pain of forfeiting a sum not ex- ceeding $20 for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief and maintenance of such poor person."'^'' The petition provided for by this legislation may be presented either by the overseers of the poor, or by anyone having an interest in the support; but the fact of this The distinction here drawn as to deser- ™ Com. v. Richards, 131 Pa. 209, 18 tion proceedings relates to a discharge Atl. 1007. as a matter of right. For the author- "' Com. v. Blackburn, 15 Montg. Co. ities in full, see § 580, ante. L. Rep. 175. " Com. V. Gamley, 16 Pa. Co. Ct. 259, "^ Com. v. Young, 25 Pa. Co. Ct. 655, 4 Pa. Dist. R. 69, 7 Kulp, 539; Com. ex 10 Kulp, 361; Com. v. Bowman, 6 Kulp, rel. Stuhhnan V. Stuhlman, 11 Pa. Dist. 176; Com. v. Marhley, 17 Pa. Co. Ct. R. 181; Com. v. Schench, 8 Kulp, 254, 5 Pa. Dist. R. 134; Newhouse v. 487. Com. 5 Whart. 82. " Com. y. Pickett, 10 Kulp, 68. ™ Com. v. Bowman, 6 Kulp, 176. "Keller v. Com. 71 Pa. 413. "Act June 13, 1836, P. L. 539, § 28. 536 CRIMINAL AND PENAL PROCEDURE. Lchap. xxix. interest must appear in the petition. It may be made by the poor person himself."^ The court of quarter sessions is the one wkich is given jurisdiction of the petition, and not the common pleas.''* 703. Order for relief. — Grand parents may be ordered to support children in case of the death or absence of the fattier.''^ Fathers must support children.''* The mother may likewise be ordered to furnish support;'^ or children may be compelled to aid parents.''® But it will not be ordered when the effect w^ould be to pauperize the one liable.''** ISTor does it apply to the case of illegitimates." \Vlien the order directs the payment of a certain sum, the name of the per- sons and the sums to be paid should be set forth.''® The order may relate back to the time of the presentation of the petition f^ and past maintenance has been allowed.®" When the order has been made and the defendant dies, his estate is not liable for further payments.'®^ Costs are not allowed in proceedings under this legislation.®* 704. Enforcement of order. — The order is to be enforced by execu- tion issued from the court. ISTo authority is given to imprison.®* 705. Surety of the peace. — ''If any person shall threaten the person of another to wound, kill, or destroy him, or do him any harm in per- son or estate, and the person threatened shall appear before a justice of the peace, and attest, on oath and affirmation, that he believes that by such threatening he is in danger of being hurt in body or estate, such person so threatening as aforesaid shall be bound over, with one sufficient surety, to appear at the next sessions, according to law, and in the meantime to be of his good behavior, and keep the peace " O'Connor's Appeal, 104 Pa. 437 ; 42 Phila. Leg. Int. 345 ; Re Hadsall, 3 Clement's Petition, 9 York Legal Eee- Kulp, 129; Directors of Poor v. Shvltz, ord, 203, 5 Pa. Dist. R. 295, 18 Pa. Co. 2 Lane. L. Rev. 405, 2 Chester Co. Rep. Ct. 71. 538, 2 Del. Co. Rep. 429; Reserve Mut. '" Darlin(]ton v. Darlington, 5 Pa. Co. L. Ins. Co. v. Kane, 81 Pa. 154, 22 Am. Ct. 132; Werte v. BUir County, 66 Pa. Rep. 741, 3 W. N. C. 201. 18. '"^Huntingdon v. Krickhaum, 8 Lu- '" Duffey V. Dufey, 44 Pa. 399; Sei- zerne Legal Reg. 127; Bradford County hert's Appeal, 19 Pa. 49; Guardians of Poor Dist. v. Caise, 2 Pa. Co. Ct. 644. Poor V. Smith, 4 Clark ( Pa. ) 60 ; " Directors of Poor v. Eickman, 4 Pa. Butcher v. Yocum, 61 Pa. 168, 100 Am. Dist. R. 494. Dec. 025. " O'Connor's Appeal, 104 Pa. 437. " Mt. Pleasant Overseers v. Wilcom, '" Smith v. Overseers of Poor, 42 12 Pa. Co. Ct. 447, 2 Pa. Dist. R. 628; Phila. Leg. Int. 345. liunlook Tvyp. Poor Dist. v. Huff ord, 8 "> Directors of Poor v. Shultz, 2 Lane. Kulp, 202; Wertu v. Blair County, 66 L. Rev. 405, 2 Chester Co. Rep. 538, 2 Pa. 18; Com. v. Miller, 8 Pa. Co. Ct. Del. Co. Rep. 429. £25. '^Filon's Estate, 20 Pa. Co. Ct 193, '"Burrell Twp. v. Pittsburg Ouardi- 6 Pa. Dist. R. 703. ans of Poor, 62 Pa. 472, 1 Am. Rep. 441. ''Salem Twp. v. Cook, 6 Pa. Co. Ct. "Re O'Donnell, 126 Pa. 155, 19 Atl. 624. 42; Smith v. Palmyra Twp. 2 Walk. "Re James, 116 Pa. 152, 9 Atl. 170; (Pa.) 342; Smith v. Overseers of Poor, Dierkes v. Philadelphia, 93 Pa. 270. §§ 706, 707] DESERTION AxVD SURETY OF PEACE. 537 towards all citizens of this commonwealtli. If any person, not being an officer on duty in the military or naval service of the state or of the United States, shall go armed with a dirk, dagger, sword, or pis- tol, or other offensive or dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his family, person, or property, he may, on complaint of any person having reasonable cause to fear a breach of the peace therefrom, be required to find sure- ty of the peace as aforesaid."®* The statute of 34 Edw. III.®^ authorizes the demand of surety for good behavior after acquittal on a criminal charge. It gives the mag- istrate discretionary power to talce surety from all persons whom he has just cause to suspect as dangerous. This legislation is in force in Pennsylvania.*' 708. By whom and when taken. — Eor the power of the supreme court, see § 17, ante; of the court of quarter sessions, see § 22, ante; and of magistrates, see § 34, ante. 707. Costs. — For costs in surety of the peace cases, see § 645, ante. -Act March 31, 1860, P. L. 427, § 6. " Ba/mber v. Com. 10 Pa. 339. » Chapter 1. CHAPTEE XXX PENAL ACTIONS. 708. Kinds of penal actions. 709. Constitutionality of such actions. 710. Construction of such acts. 710a. Effect on other remedies. 711. Jurisdiction of justices under statutes. 712. Jurisdiction of justices under ordinances. 713. Jurisdiction in cities of the first class. 714. Jurisdiction in cities of the second class. 715. Jurisdiction in cities of the third class and less. 716. Mayor's courts. 717. Jurisdiction of burgess. 718. Jurisdiction of same offenses by different magistrateSk 719. Qualification of judicial officer. 720. Partj' plaintiff under statutes. 721. Party plaintiff in actions on ordinances. 722. Institution of summary proceedings. 723. Institution of proceedings on ordinances. 724. Process in summary proceedings. 725. Process in proceedings on ordinances. 726. Effect of appearance. 727. Arrest without warrant. 728. Joinder of defendants and offenses under ordinances. 729. Joinder of offenses under statutes. 730. Presence of defendant. 731. Right to be heard. 708. Kinds of penal actions. — A distinction is to be dra-vm between summary convictions and those actions authorized for the recovery of penalties as debts are ordinarily recoverable. A summary proceed- ing before a justice of the peace is in the nature of a criminal prose- cution for a public crime or offense, and must be regulated by rules similar to those adopted by the common law in criminal prosecutions, the accused being acquitted or condemned by the decision of the per- son appointed by the statute for judge. It is predicated on an infor- mation, as are criminal prosecutions, and is followed by a warrant of arrest.^ They are such as are directed by statute for the conviction of offenders and the infliction of penalties.* ' Com. V. Davenger, 10 Phila. 478, 30 ' City v. Duncan, 4 Phila. 145, 17 Phila. Leg. Int. 321, 2 Luzerne Leg. Phila. Leg. Int. 373. T!eg. 177; Com. v. Borden, 61 Pa. 272. §§ 709, 710] PENAL ACTIONS. 539 Where, however, an offense is created by statute, and on conviction a penalty is imposed, to be recovered by any person suing for the same as debts of like amount are by law recovered, the proceeding should be by summons in debt in the name of the commonwealth for th# use of the parties suing, followed by judgment for the penalty, if the evi- dence establishes the guilt of the accused.* A proceeding to recover a fine for the violation of a borough or city ordinance is not a summary proceeding; it is of a civil nature, and is to be conducted according to the rules applicable to civil suits.* 709. Constitutionality of such actions. — The Bill of Rights declared that trial by jury should be as theretofore, and that the right as then existing should remain inviolate. The same provision appears in the Constitution of 1874.^ This was intended to preserve that right as it existed at the formation of the state government, and not to in- crease or extend it, and must be construed with reference to the stat- utes that were in force in England and in the province of Pennsylva- nia at the adoption of the first Constitution of the state.® There is nothing in the Constitution to prevent the creation of a new offenso, and the prescribing of a mode of ascertaining the guilt of the person charged therewith, though no jury trial be provided.'^ Likewise, no constitutional right is given to a trial by jury in case of appeal to the court of quarter sessions.® Appeals from summary convictions were provided by article 5, § 14, of the Coiistitution of 1874. In pursuance tliereof the act of April 17, 1876, was passed, requiring an allowance by the court upon cause shoAvn. This provision for a special allocatur is not unconsti- tutional, it being merely a regulation of procedure preparatory to the trial." 710. Construction of such acts. — No summary conviction can be sustained unless it has express legislative sanction to warrant it, and as this mode of procedure is in derogation of the common law, and operates to the exclusion of trial by jury, the superior courts have rig- 'Com. V. Davenger, 10 Phila. 478, 30 Liberty Hose Go. 13 Pa. 193; Jones v. Phila. Leg. Int. 321, 2 Luzerne Leg. Wilkesbarre, 2 Kulp, 68. Reg. 177. ' Com. v. WaUman, 140 Pa. 89, 11 L. *City V. Duncan, 4 Phila. 145, 17 R. A. 563, 21 Atl. 248; Hammus v. Phila. Leg. Int. 373; Com. v. Davenger, Mock, 2 Legal Opinion, 135; Com. v. 10 Phila. 478, 30 Phila. Leg. Int. 321, Glurk (No 1) 14 Lane. L. Rev. 41; Com. 2 Luzerne Leg. Reg. 177; Morgan v. v. Forrest, 3 Pa. Dist. R. 797, Reversed Pittston, 5 Kulp, 186; SJiamokin v. on other grounds in 170 Pa. 40, 29 L. R. Flannigan, 156 Pa. 43, 26 Atl. 780. A. 365, 32 Atl. 652. ° Pa. Const, art. 1, § 9. ° Com. eoo rel. Allegheny County v. ' Byers v. Com. 42 Pa. 89. McCann, 174 Pa. 19, 34 Atl. 299; Com, ''Van Swartow v. Com. 24 Pa. 131; v. Johnston, 16 W. N. C. 349. Byers v. Com. 42 Pa. 89; Be 'Northern 640 CRIMINAL AND PENAL PROCEDURE. [chap. xxx. idly confined its authority to the strict letter of the statute authoriz- ing the proceeding; and it is required that rules similar to those adopted by the common law in criminal prosecutions must be ob- served, unless the statute dispenses with the form of stating them.^" The penal statute must be construed strictly, and should not be extended beyond the evident intention of the legislature, as expressed on its face.^^ It is not to be construed so as to embrace acts and per- sons not within the purview of the act, but if the intention to include is evident from other legislation it may be.^^ But penal statutes are not to be extended by implication. "The proper course is in their construction to search out and follow the true intent of the legis- lature, and to adopt that sense which harmonizes best vdth the con- text, and promotes in the fullest manner the apparent policy and ob- jects of the legislature. No man incurs a penalty imless the act which subjects him to it is clearly both witliin the spirit and letter of the statute imposing such penalty."^^ Those acts which impose fines and penalties are to be construed strictly as penal, and not liberally as remedial law^s.-'* But a penal statute is not to be so strictly construed as to defeat the action. All that is meant is that nothing is to be taken against the party charged, by intendments^ 710a. Effect on other remedies. — "As a general rule, the creation by statute of a summary method of procedure is, in the absence of ex- press words to the contrary, regarded as cumulative merely, and not exclusive of any ordinary remedies already existing at common law or in equity-''^® But where a statute imposes a duty where none ex- isted before, the presumption is that the remedy provided therein for the breach of duty is exclusive, and an action for damages will not lie.-^'^ And where a form of summaiy conviction is peremptorily provided by statute, it must be exactly followed.^® "In all cases where a remedy is provided, or a duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued; and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carry- ing such act or acts into effect."^® Under this legislation, acts indict- " City V. Duncan, 4 Phila. 145, 17 " Com. v. Shopp, 1 Woodw. Dec. 123. Phila. Leg. Int. 373. " Bartolett v. Achey, 38 Pa. 273. " Bucher v. Com. 103 Pa. 528 ; Com. " 20 Eno. PI. & Pr. p. 1076. V. BolUater, 1 C. P. Rep. 146; Com. v. "Mack v. Wright, 180 Pa. 472, 36 La Seur, 6 Pa. Co. Ct. 529. Atl. 913. "Com,. V. Forrest, 170 Pa. 40, 29 L. "Com. v. Hardy, 1 Ashm. (Pa.) 410. R. A. 365, 32 Atl. 652. "Act March 21, 1806, 4 Smith's "Trunkey, J., in Com. use of Direct- Laws. 326, S 13; act March 31, 1860, P. ors of Poor v. Wells, 110 Pa, 463, 467. L. 382, § 183. § 711] PENAL ACTIONS. 541 able at common law for which penalties were provided by acts of assermbly were held to exclude prosecution by indictment.*'* It has been held that the imposition of a penalty in an ordinance for failure to pay a tax and take out a license for poles erected on streets will not prevent the bringing of an action in assumpsit for the amount due by the ordinance.*^ 711. Jurisdiction of justices under statutes. — For jurisdiction of justices of the peace, generally, see Jurisdiction, chapter ii., ante. Justices of the peace or aldermen or magistrates for Philadelphia have jurisdiction in case of summary convictions under penal stat- utes. Thus, they have jurisdiction of an action against a justice un- der the act of March 28, 1814, for taking illegal fees,^* and two or more penalties may be included in the same claim f^ or for the pen- alty imder the act of April 13, 1791, for failure to satisfy a judg- ment;** or for peddling under the act of April 2, 1830, notwithstand- ing the legislation of March 13, 1784, supplemented by the act of March 28, 1799 f^ or for vagi-ancy under the act of May 8, 1876 ;*« or for wilfully driving on a sidewalk, under the act of May 7, 1889 f^ or for malicious trespass under the act of April 17, 1861, as supple- mented by the act of June 8, 1881 ;** or under the act of June 8, 1893, relating to the commitment of children to the humane socie- ty f^ or to commit incorrigible children to the house of refuge f or for disorderly conduct under the act of February 1, 1866, for Alle- gheny county.*^ If the statute does not expressly confer the juris- diction upon the justice, then he has no power to hear and determine '"Com. V. Evans, 13 Serg. &, R. 426; Legal Record, 166; Com. v. Eolloway, Kelly V. Com. 11 Serg. & R. 345; Eel- 5 Binn. 516 (for Philadelphia prior to lings V. Com. 5 Rawle, 64; Rees v. Em- 1876). See Aldermen & Justices of the erick, 6 Serg. & R. 286, 289. Peace, 2 Pars. Sel. Eq. Cas. 458, 463 '^'Newcastle v. Electric Illuminating (under the act of March 22, 1836). Co. 16 Pa. Co. Ct. 663, 26 Pittsb. L. .T. " Com. v. Craine, 2 Pa. Dist. R. 615, N. S. 197, Affirmed in 2 Pa. Super. Ct. 12 Pa. Co. Ct. 286; Com. v. Forrest, 170 228; Western V. Teleg. Co. v. Phila- Pa. 40, 29 L. R. A. 365. 32 Atl. 652. delphia, 22 W. N. C. 39; Allentown v. ^ Com. v. Staizer, 5 Pa. Co. Ct. 256; Western U. Teleg. Co. 148 Pa. 117, 23 Hoffman v. Com. 123 Pa. 75, 16 Atl. Atl. 1070; Chester v. Western V. Teleg. 609; Com. v. Burns, 17 Lane. L. Rev.' Co. 154 Pa. 464, 25 Atl. 1134. 171; Com. v. Groff, 8 Lane. L. Rev. 267. " M'Conahy v. Courtney, 7 Watta, ^ Kitchen's Estate, 30 Pittsb. L. J. N. 491. S. 100. ^'Bartolett v. Adhey, 38 Pa. 273; Mil- "Com. v. Patton, 5 Del. Co. Rep. 290. liken v. Mitchell, 28 Pittsb. L. J. 302. See Com. ex rel. Joseph v. M'Keagy, 1 " Seitzinger v. Steinherger, 12 Pa. Ashm. (Pa.) 248, for such commitment 379, explaining, Zeigler v. Oram, 13 in Philadelphia under act of March 22, Serg. & R. 102. 1826. ''Com. V. Winchester, 3 Clark (Pa.) '^ Com. v. Redshaw, 12 Pa. Co. Ct. 91, 34. 10 Lane. L. Rev. 71, 23 Pittsb. L. J. N. ^Com. ex rel. Davis v. Kehoe, 11 Pa. S. 100, 2 Pa. Dist. R. 96. Co. Ct. 516, 1 Pa. Dist. R. 636, 5 York 542 CRIMINAL AND PENAL PROCEDURE. [chap, xxs, the case, and the same is true if jurisdiction be conferred upon some other tribunal.®^ 712. Jurisdiction of justices under ordinances. — "The aldermen and justices of the peace of every city, incorporated township, or borough in this commonwealth shall have power to hear and determine all ac- tions of debt for penalty for the breach of any ordinance, by-laws, or regulations of such city, township, or borough, in the same man- ner and subject to the same right of appeal as debts under $100 ; and such actions shall be instituted in the corporate name of a,uch city, township, or borough."^^ "In all cases of the breach of any by-laws of any city, borough, town, or corporate body within this common- wealth, subjecting the offender to a penalty or fine therefor, that suit-s for the recovery thereof may be maintained before any justice of the peace or alderman, in like manner as suits for the recovery of debts under the sum of $100 may now be maintained before them: Pro- vided, The parties shall have the right to appeal as in other cases. "^* The jurisdiction of proceedings for the violation of ordinances of townships of the first class and the collection of fines and penalties therefor is regulated by the act of 1901.^' The jurisdiction of justices is limited to those elected for the mu- nicipality passing the ordinance.^* Under tliis legislation the suit for the penalty is properly brought before a justice of the peace as in other civil cases.*^ If the ordinance be void, no jurisdiction at- taches.^® 713. Jurisdiction in cities of the first class. — In Philadelphia mag- istrates are given the same powers as justices of the peace, which in- cludes the power to collect the fines and penalties imposed by city ordinances.** The act of May 3, 1876,*" provides for summary ar- rest by police officers. '^ Sftrovdsburg v. Broirn. 1 Pa. Dii5t. ^ Com. v. Clark (No. 2) 14 Lane. L. R. 334. 11 Pa. Co. Ct. 272, 9 Lane. L. Rev. 42; Williamsport v. Williamsport Rev. 171, 3 Northampton Co. Rep. 158; Water Co. 7 Pa. Dist. R. 206. For ju- Schaffer v. M'Namee, 13 Serg. & R. 44; risdiction under local statutes or char- Com. V. La Seur, 6 Pa. Co. Ct. 529 ; see ters, see for Fairmount park under act contra in cases of escape prior to act of April 14, 1868, P. L. 1083, City use of March 30, 1810. MuUiken v. Ralph, of Fairmount Pa/rk v. Junker, 9 Pa. 1 Browne (Pa.) 30. Dist. R. 673; for Northern Liberties un- »= April 15, 1835, P. L. 291, § 7. der act of March 16, 1819, and May 4, "April 5, 1849, P. L. 409, § 7. 1854, Ellmore v. Boffman, 2 Ashm. ""June 10. 1901, P. L. 551. (Pa.) 159; for Lancaster prior to 1835, ""J\ct April 3, 1851, P. L. 320, § 32. Barter v. Com. 3 Penr. & W. 253. Since " Washinijton v. McGeorqe, 146 Pa. 1835, Lancaster v. Baer, 5 Lane. Bar, 248,23 At\. 222; Milton v.Hoagland, 3 No. 28: for Wilkesbarre under charter Pa. Co. Ct. 283; LeUghton v. Smith, 7 of May 4, 1871, § 11, Jones v. Wilkes- Northampton Co. Rep. 190, 9 Pa. Dist. barre, 2 Kulp, 68. R. 428, Lack. I^gal News, 192; War- »» Act February 5, 1875, P. L. 56, § 12. ren v. Oeer. 117 Pa. 207, 11 Atl. 4l5. "P. L. 99. §§ 714-717] PENAL ACTIONS. 543 714. Jurisdiction in cities of the second class. — Police magistrates are given the power likewise to proceed under city ordinance in cities of the second class.'* ^ 715. Jurisdiction in cities of the third class and less. — Power is giv- en to a mayor in cities of the third class, to collect fines and penal- ties,*^ and to aldermen for each ward.*^ Cities incorporated prior to the act of 1874, having less than 10,000 population, and not having accepted the provisions of that act, are governed hy their own char- ters. The act of 1901 gave them power to regulate violations of or- dinances.** 716. Mayors' courts. — ^For the jurisdiction of mayors' courts, see the acts ahove cited giving jurisdiction in cities.*' 717. Jurisdiction of hurgess. — The general horough act of 1851 conferred no power on burgesses to entertain proceedings for the col- lection of fines for the violation of horough ordinances ;*" nor under that act was there any power to enact an ordinance providing for a con- viction before the burgess for its violation.*^ Though the act of May 19, 1887,** enlarged the criminal powers of burgesses, it conferred no such jurisdiction.** Power was given to burgesses by the act of 1897. "All actions, prosecutions, complaints, and proceedings for the viola- tion of borough ordinances and for the collection of fines and penalties imposed thereby may be commenced by warrant or by summons at the discretion of the chief burgess or justice of the peace before whom the complaint is made or the proceeding begun, but no warrant shall be issued except upon complaint, on oath or afiirmation, specifying the ordinance for the violation of which the same is issued ; and all pro- ceedings shall be directed to and be served by any policeman or con- stable of said borough, who shall execute the same anywhere within the borough, or in the county of which it is a part, or elsewhere in the "Act June 16, 1891, P. L. 303, §§ 3, court of Seranton, see Com. ex rel. AtUi. 4; act March 7, 1901, P. L. 20, art. 16. Gen. v. Conyngham, 65 Pa. 76; for " Act May 23, 1889, P. L. 277, art. 7, mayor's court for Pittsburg, see Com- § 3; act May 16, 1901, P. L. 224, art. missioners v. Murray, 3 Watts, 348. 46, § 14. ''Com. V. Thompson, 110 Pa. 297, 1 " Act May 23, 1874, P. L. 230, § 32. Atl. 37.5, Affirming 3 Kulp, 458. « Act May 11, 1901, P. L. 168. " Oettysiurg v. Zeigler, 2 Pa. Co. Ct. " See also in Philadelphia under the 326. early legislation, Spicer v. Rees, 5 *"P. L. 193. Eawle, 119, 28 Am. Dec. 648; for " Agnew y. Wasliington, 7 Fa.. Co. Ct. mayors' courts under the charter of 180; Com. v. Black, 12 Pa. Co. Ct. 31, 1871 for Wilkesbarre, see Jones v. 2 Pa. Dist. R. 46; Cohen v. Plymouth, Wilkesbarre, 2 Kulp, 68; for the 7 Kulp, 101; West Pittston v. Dymond, effect of the act of April 17, 1876, 8 Kulp, 12; GalUtzen v. Gains, 15 Pa. relating to appeals upon the special Co. Ct. 337, 12 Lane. L. Rev. 61, 7 Kulp, provision, see Wilkesharre v. Btewa/rt, 479; Sohlager v. Nantiooke, 4 Kulp, 16 Pa. Super. Ct. 347; for recorder's 244, 522. 544 CRIMINAL AND PENAL PROCEDUEK. [chJlP. xxx. state, as may be provided by law. Warrants shall be returnable forth- with, and upon such return the like proceedings shall be had in all eases as are or may be directed by law in relation to summary convic- tions, with the same right of appeal from any final judgitient entered therein, except where otherwise provided by existing laws. When any person is arrested on view, a complaint, on oath or affirmation, shall be immediately made, whereupon the like proceedings shall be had as upon a warrant issued. All fines or penalties for the violation of borough ordinances shall be paid over to the borough treasurer."^" 718. Jurisdiction of same offenses by different magistrates.— If sepa- rate suits be instituted on the same day for the same offense before two justices, the one before whom complaint was first made will have ex- clusive jurisdiction.^^ And if numerous actions for distinct penal- ties under the same ordinance and against the same defendant be in- stituted, proceedings will be stayed on all but one, until it is tried, where the same question is involved.^^ 719. Qualification of judicial officer. — The act of 1799 provides that no court, alderman, or burgess otherwise by the laws of this com- monwealth qualified and authorized to hear, judge, and determine re- tpecting the breach of any such ordinances, or by-laws, or regulations of the city of Philadelphia, or any other incorporated town or bor- ough, and the accruing of such fines, forfeitures, and penalties im- posed for such breach, shall be disqualified to hear, judge, and deter- mine the same by reason of the interest they, as members of such boroughs or corporations, may have in the said fines, forfeitures, and penalties, but shall have as full and complete jurisdiction respecting the same as if no such fine, forfeiture, or penalty were to be incurred, or they had no such interest in the same.^* As has been before noticed, justices were given jurisdiction in such case by the acts of 1835 and 1849. By the general borough act of 1851 this power was limited in the case of actions upon ordinances to the justices of the borough passing the same.''* The fact that the jus- tice before whom the proceeding was instituted acts also as a town clerk at a fixed salary will not disqualify.®^ Though proceedings may be instituted before a mayor or burgess, or before a justice of the peace, they cannot be conducted partly be- "Act June 4, 1897, P. L. 121. § 2; 390, § 2. See also the act of February Bolivar v. Coulter, 10 Pa. Dist. R. 171. 20. 1820, 3 Smith's Laws, 247. "^Oom. V. Martin, 7 Pa. Co. Ct. 153. "Act April 3, 1851, P. L. 320, § 32. '' Lancaster v. Pennsylvania R. Go. ^ Com. v. Fenstermacher, 5 Pa. Co. 12 Lane. Bar, 99. Ct. 424, 1 Northampton Co. Rep. 209. "Act April 11, 1799, 3 Smith's Laws, g§ 720, 721] PENAL ACTIONS. 545 fore one and partly before the other. So, a proceeding commenced before a mayor and finished before a justice was reversed."'^ 720. Party plaintiff under statutes. — Where a stat^jte provides for a conviction by summary proceeding, the prosecution is always institut- ed in the name of tlie state.^^ If made a criminal offense punishable upon conviction before a justice of the peace, the proceeding is prop- erly brought in the name of the commonwealth, and is not instituted by a qui tarn action of debt in the name of the commonwealth for the use of the party entitled to receive a share of tJie penalty.^^ But the institution of the proceeding in the name of the commonwealth at the relation of an informer does not render the proceeding bad, .on the ground that it was instituted by separate plaintiffs.'® Where the commonwealth has no interest in the penalty, but the same is to be divided according to the provisions of the statute, the action should not be in the name of the commonwealth, but in that of the informer.®" So, where the whole penalty is payable to a par- ticular person, the name of the commonwealth should not be used as plaintiff.^^ Where it has been improperly used, the defect has been held to be amendable.®^ Where the statute directs a suit in the name of the commonwealtli for the benefit of the guardians of the poor and of the informer, the omission of one beneficiary has been held to be amendable f^ and where for the benefit of two, and the direction is to sue in the name of the commonwealth, at the instance of the informer, the addition of the second beneficiary is not fatal, but will be treated as surplusage.®* In case the proceeding is instituted in the name of a plaintiff im- properly, the same must be excepted to, or the objection cannot be considered on certiorari."^ 721. Party plaintiff in actions on ordinances. — Proceedings for the recovery of fines for the violation of borough or city ordinances are not summary proceedings, but are properly of a civil nature, and " Hennershitz v. Reading, 1 Woodw. Coal Co. 8 Watts & S. 342 ; Ott y. Sny- Dec. 264. der, 3 Lane. L. Rev. 185. "Carlisle v. Baker, 1 Yeates, 471; '^ Com. ex rel. Ernst v. Metzger, fl Com. V. Wolf, 3 Serg. & R. 48. Kulp, 408, 2 York Legral Record,' 53. ''Com. V. Flinchbaugh, 1 York Legal °^ Adams v. Com. 1 Woodw. Dee. 417, Record, 1. and not to be in Com. v. Winchester, 3 ""Com. V. GilUngham, 1 Brewst. Clark (Pa.) 34. (Pa.) 396, 6 Phila. 321, 24 Phila. Leg. "Com. v. Boos, 1 Luzerne Leg. Reg. Int. 244. 375. "Adams v. Com. 1 Woodw. Dec. 417; " Blessington v. Com. (Pa.) 12 Cent. Com.. V. Winchester, 3 Clark (Pa.) 34. Rep. 512, 14 Atl. 416. In the first case, the defect was held not " Com. v. Evans, 29 Phila. Leg. Int. to be fatal, but amendable, and in the 133. latter fatal. Megargell v. Hazleton Pa. Crim. Proc.— 35. 546 CRIMINAL AND PENAL PROCEDURE. [chap. xxx. must be regulated and decided by rules applicable to civil suits, al- though, being penal in their character, some of the principles relative to summary proceedings are applicable to them.®* Ordinances pre- scribing peiialties generally authorize their recovery before magis- trates, as debts of a like amount or nature are recoverable; but, whether designated as debts or not, suits for their recovery are civil and must be instituted as such. "Where the entire penalty is for the benefit of the borough or city, the corporate name must be used as plaintiff.®'^ The suit cannot be in the name of the commonwealth,** though if so instituted the defect has been held amendable.** 'Nor can it be instituted by a private citizen f^ nor in the name of the chief burgess f^ nor in the name of a policeman f'^ nor in the name of an officer for the use of the city f^ nor in the name of the mayor, citizens, and aldermen.'^* Where the whole penalty is given to anyone who may sue, the suit should be in the name of the city giving its corporate name, to the use of the informer, naming him.''* Where one portion of the penalty goes to the informer and the other to the city, the proceeding should be a qui tarn action, the in- former being named as plaintiff suing for himself, as well as for the city.''* If the action be brought by the informer, it must appear that he is entitled to share in the penalty.''^ 722. Institution of summary proceedings. — In case of summary pro- ceedings an information or diarge against the person must be made.'^ Such complaint will be sufficient if based on information " City V. Dimcwn,, 4 Phila. 145, 17 tuted in the name of the commonwealth. Phila. Leg. Int. 373. For summary '"Sell v. Com. 1 Montg. Co. L. Rep. conviction."! in such eases based on spe- 177; City v. Strawbridge, 4 W. N. C. cial charters, see Jones v. Wilkesba/rre, 215; Kensington v. Glenat, 1 Phila. 251. 2 Kulp, 68 ; Barter v. Com. 3 Penr. & " Speakman v. Speakman, 1 Pa. Dist. W. 253. The cases of Philadelphia v. R. 119. "Nell, 3 Yeates, 475, and Mayor v. Moab- " Matthews v. Schmidt^ 7 Pa. Dist. R. son, 4 Dall. (Pa.) 266, seem to have 202, 8 Kulp, 471, 14 Lane. L. Rev. 287; been treated as summary proceedings. Milton v. Hoaigland, 3 Pa. Co. Ct. 283. "' Act April 15, 1835, P. L. 291, ,§ 7; ''Lemon v. Eeidel, 1 Lane. L. Rev. 3, City V. Duncan, 4 Phila. 145, 17 Phila. 4 York Legal Record, 164. Leg. Int. 373. " Philadelphia v. T^ell, 3 Yeates, 475. ™/gt. Clair V. Oa/rr, 2 Legal Record '"■ City v. Duncan, 4 Phila. 145, 17 Rep. 87. Phila. Leg. Int. 373. "• Com. v. Ryan, 2 Del. Co. Rep. 225, ™ City v. Duncan, 4 Phila. 145, 17 2 Lane. L. Rev. 24, 7 Law Times, N. S. Phila. Leg. Int. 373 ; Lancaster v. Hirsh, 7. This decision is based on Reid v. 1 Lane. L. Rev. 209. Wood, 102 Pa. 312, which does not seem " Fraily v. Sparks, 2 Pars. Sel. Eq. to sustain the principle. The question Cas. 232. raised in that case was whether the '"Com. v. Borden, 61 Pa. 272; Com. writ of certiorari should be quashed be- v. Oelbert, 170 Pa. 426, 32 Atl. 1091 ; cause directed to the chief burgess of Com. v. Phelps, 170 Pa. 430, 32 Atl. the borough, when the suit waa insti- 1092. §§ 723, 724] PENAL ACTIONS. 547 received and the commission of the offense is positively alleged^® And it will be sufficient if it gives notice to the accused of time, place, and substance of the offense charged.®" Any insufficiency in the complaint is cured by tiie appeai-ance of the defendant at the hear- ing.®^ Where the offense charged is based on a statute imposing a penalty recoverable as debts of like amount, the necessity of an information as the foundation of the proceeding is not clear.*^ Whether required or not, when made it becomes the basis of action.*'' In case a penal statute provides any method of institution of the proceeding or mode of service of process, it must be strictly pur- sued.** 723. Institution of proceedings on ordinances. — Proceedings for the violation of ordinances must ordinarily be commenced by summons.*® But when oonunenced by warrant of arrest, there must be an informa- tion specifically charging the offense.** Though proceedings may be commenced in such case by warrant or by summons, no warrant shall be isstied, except upon complaint on oath or affirmation, specifying the ordinance for the violation of which the same is issued. And when any person is arrested upon view, a complaint on oath or affirmation shall be immediately made.*'' 724. Process in summary proceedings. — In a summary proceeding where the statute prescribes no method of procedure, it may be in- stituted either by warrant or summons at the discretion of the jus- tice. The former is necessary to prevent the escape of transient and irresponsible persons, but should be exercised with caution and mod- eration.** But the institution of the proceeding by means of a sum- mons is proper.*® The summons should state the place where the office of the justice may be found.®" It need not state the act of as- '" Knorr v. Com. 4 Pa. Co. Ct. 32, 3 ''Com. use of Allegheny County v. Montg. Co. L. Rep. 184. Davison, 11 Pa. Super. Ct. 130, 136. '° Com. v. Burhhart, 23 Pa. 521. " Com. v. Turnpike Co. 1 Lack. Legal '^Adorns V. Com. 1 Woodw. Dec. 417; Record, 487. Com. V. Burhhart, 23 Pa. 521. For " Scranton v. Frothingham, 5 Pa. statements requisite as to jurisdiction Dist. R. 639, 2 Lack. Legal News, 247. and charging of the offense, see Record, ™ Wilkesbarre v. Kosek, 1 Kulp, 454. § 751, post. "Act June 4, 1897, P. L. 121, § 2, for ^ It has been held to be unnecessary boroughs. See Jurisdiction, ante, for in Hess v. Monier, 1 Pa. Dist. R. 606, 23 legislation as to cities. Act June 10, Pittsb. L. J. N. S. 44; Kern v. Com. 1 1901, P.L.551,for townships of first class. Pa. Co. Ct. 469, 2 Del. Co. Rep. 490. "Com. v. Borden, 61 Pa. 272; Com. And the question is left open in Com. r. Bashore, 1 Legal Record, Rep. 255. use of Allegheny County v. Davison, 11 ™ Com. v. Davenger, 10 Phila. 478, 30 Pa. Super. Ct. 130, 136. It has been Phila. Leg. Int. 321, 2 Luzerne Leg. held to be necessary in Rothermel v. Reg. 177. ler, 7 Pa. Co. Ct. 505. "Mack v. Miller, 9 Montg. Co. L. 348 CRIMINAL AND PENAL PROCEDURE. [chap. xxx. sembly under which the proceeding is instituted;'* nor need it set forth the form of the action when the nature of the suit is clearly shown.®^ But a proceeding will not be set aside after the appear- ance of the defendant, where he was summoned to answer a plea of penal debt, and the record shows the proceeding to be a simple action of debt.*"* The process must be Regular, and its service by the officer must appear by its return.** A personal note of the mayor request- ing appearance is not sufficient.** By virtue of the act of 1810 it must allow four days to elapse between the date of service and the hearing. In calculating this time both dates cannot be included.'® 725. Process in proceedings on ordinances. — In case of the viola- tion of the borough ordinances, a summons may be issued or a war- rant, based upon a complaint, returnable forthwith. "^ Likewise, in townships of the first class by the act of June 10, 1901.®* Tor cities, see acts for each class under Jurisdiction^ ante. Prior to this legis- lation, the summons alone was available.'* Proceedings under ordinances for the recovery of fines by actions of debt may be commenced by capias, notwithstanding the act of 1842.*'"' Though the contrary was held in a summary proceeding under the act of 1855 for selling liquor on Sunday.*"* 726. Effect of appearance. — Though the process is irregular, such defect is waived by the appearance of the defendant at the hearing.*"^ So, any indefiniteness in the information or summons is cured by the defendant's appearing and going to the trial.*"^ But such presence is not shown by mere entry on the record that the defendant admits the charge.*'* 727. Arrest without warraRt.*'^ — Prior to the act of 1897, no power was given to officers in boroughs to arrest without warrant, though so directed by ordinance.*'® Such power existed only when a Rep. 96, based on Murdy v. MeCutcheon, 283 ; St. Clair v. Carr, 2 Legal Record 9.5 Pa. 435, which was not a penal action. Rep. 87. " Com. V. Evans, 29 Phila. Leg. Int. ^" Com. v. Schweitzer, 1 Lehigh Val- 133. ley L. R. 21. ''Kern v. Com. 1 Pa. Co. Ct. 469, 2 ^"^ Fraily v. Sparks, 2 Pars. Sel. Eq. Del. Co. Rep. 490. Cas. 232. "Fetterman v. Rohlims, 100 Pa. 282. ^"^ Com. v. Burkhart, 23 Pa. 521. "Philadelphia v. Money, 2 Phila. 43. ^"Northern Liberties v. O'Neill, 1 "Jones V. Wilkesbarre, 2 Kulp, 68. Phila. 427. " Com. V. Richer, 13 W. N. C. 142. "'> For Arrest, generally, see that title, " Act June 4, 1897, P. L. 21. chapter iv., ante. ■"P. L. 551. ^"^ Sharp v. Wilkeslarre, 1 Kulp, 73; ■" Scranton v. Frothingham, 5 Pa. West Pittston v. Dymond, 8 Kulp, 12 ; Dist. R. 639, 2 Lack. Legal News, 247; Pittston v. Dimond, 15 Pa. Co. Ct. 543, Pottsville V. Maiburger, 1 Legal Chron- 4 Pa. Dist. R. 200, 7 Kulp, 431, 12 Lane, icle, 60. L. Rev. 120; Lehighton v. Roth, 7 Pa. ^"Milton V. Boagland, 3 Pa. Co. Ct Dist. K. 426, 21 Pa. Co. Ct. 63; Phila- § 728] PENAL ACTIONS. 549 breach of the peace was committed or an act immoral per se on view.'"''^ Therefore a record which merely showed that "defendants were brought up by a peace officer" was held defective. ■'''* The act of 1897 permits arrests on view in the ease of violation of borough ordinances, and directs that in such case a complaint on oath or affirmation shall be immediately made, whereupon the like proceeding shall be had as upon a warrant issued.^"^ Like provision is made for townships of the first class. ■'^'' For cities, see acts under Jurisdiction, §§ 713-715, supra. And the power to arrest on view is also given as to persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct, or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the person- al security or endanger the property of the citizens.^^"^ Townships, first class, are provided for by act of June 10, 1901.^^' For cities, see acts under Jurisdiction, §§ 713-715, supra. No power existed to arrest without warrant, summons, or capias under the act of 1794, relating to work on Sundays.-*^^ 728. Joinder of defendants and offenses under ordinances. — Two de- fendants may be joined in a proceeding for the violation of an ordi- nance, but in such ease it must appear that both were connected with the offense complained of.^^^ Several offenses may be joined in one proceeding, provided the ag- gregate of the penalties does not exceed the amount of which the jus- tice has jurisdiction.^^* Statutes limit the money penalties to be imposed by ordinances to not more than $100,^^® and this restriction cannot be overcome, directly or indirectly.^ ^® But separate suits for distinct violations' of the same ordinance can be maintained, though the aggregate of the penalty will exceed the amount of which the jus- tice has jurisdiction.^^'' Actions for penalty under two separate or- dinances cannot be joined in one suit, though they relate to the same hia V. Campbell, 11 Phila. 163, 33 ^^'Philadelphia v. Kitchen, 2 Phila. Phila. Leg. Int. 12. 44. ^"Plymouth v. WilUams, 8 Kulp, ^" Pottsville Water Co. v. Ball, 1 167; Johnston v. Pittston, 3 Kulp, 244; Legal Chronicle, 63. Wilkes-Barre v. Kosek, 1 Kulp, 454. "'Act March 7, 1901, P. L. 20, 46 ^'"Plymouth v. Penkok, 7 Kulp, 101. (second class) ; act May 23, 1.889, P. L. '°»Act June 4, 1897, P. L. 121, § 2. 277 (third class) ; act June 4, 1897, P. ""June 10, 1901, P. L. 551. L. 21 (horoughs) ; act June 10, 1901, P. "°a Boroughs act June 4, 1897, P. L. L. 551 (townships of first class). 121, § 1. ^^° Williamsport v. Williamsport Wa- "1 P. L. 551. ter Co. 7 Pa. Dist. E. 206. "^ Com. V. Collins, 15 Phila. 383, 38 "' Lancaster v. Pennsylvania R. Co. Phila. Leg. Int. 252. 12 Lane. Bax, 99. 550 CRIMINAL AND PENAL PROCEDUEB. [chap, xxx subject;"* nor could an action for a penalty for erecting telegraph poles without a license be joined with an action for the license iee.^^^ 729. Joinder of offenses under statutes. — In actions for statutory penalties, distinct offenses may be joined in the same information, but the judgment cannot exceed the number of acts charged in the complaint.^^" Penalties for separate oaths under the act of April 22, 1794, relating to profanity, may be imposed.^^^ Likewise for sepa- rate shots at pigeons on the same day under act of April 9, 1760 ;^^* or for taking trout, under act of June 11, 1885.^^^ But working upon the Sabbath day constitutes but one violation of the Sunday law of April 22, 1894.^^* A double penalty cannot be imposed for selling and exposing for sale oleomargarine.^^^ In an action for a penalty for overcharge of tolls on bridges, each payment constitutes one offense, not each driving of a wagon thereon.*^® The complaint cannot join two offenses under different statutes,*^''^ and where the act may be prohibited by two statutes, the record must show under which the proceeding is instituted. ^^® 730. Presence of defendant. — It is not necessary that the defendant be present at the hearing, where he has been regularly summoned to appear.^^® But it is essential that he be present when sentence is pronounced.^ ^"^ 731. Right to be heard. — Where the defendant appears at the hear- ing, he has the right to be heard, and to produce evidence to show his lack of guilt. A refusal to hear will be ground for setting aside the proceeding.^ *^ And he has the right to demur or enter a special plea, if he sees fit, though the practice is unusual and not favored. If a demurrer is made, tbe facts therein alleged become regularly a part of the record and form a substantive ground for judgment.^^^ "° Kensington v. Qlenat, 1 Phila. 393. ™ Porter v. Dawson Bridge Co. 157 '1° Chester v. Philadelphia, B. & P. Pa. 367, 27 Atl. 730. Teleg. Co. 1 Pa. Dist. R. 142. "' Com. v. Bhowalter, 15 Lane. L. ^'"Com. V. Cummings, 2 Clark (Pa.) Rev. 78. 49. ^^Com. V. Wigoner, 1 Kulp, 66, 1 ^'^ Com. V. Cummings, 2 Clark (Pa.) York Legal Record, 34. 49 ; Com. v. Bashore, 1 Legal Record '^° Com. v. Evans, 29 Phila. Leg. Int. Rep. 255; Com. ex rel. Steward v. Ir- 133; Denzin v. Com. 3 Pa. Co. Ct. 654; win, 1 Clark (Pa.) 408. Com. v. McAndrews, 3 Lack. Legal "= Com. V. Borden, 61 Pa. 272. News, 339. ''"' Com. V. Kinter, 1 Wilcox Rep. 3. "° Grim v. Reinhold, 3 Pa. Dist. R. "^Fnedelorn v. Com. 113 Pa. 242, 57 668, 13 Pa. Co. Ct. 545, 7 York Legal Am. Rep. 464, 6 Atl. 160; Com. v. Record, 61. Moses, 15 Pa. Co. Ct. 224, 12 Lane. L. ^"^ Com. v. ShofnosU, 5 Pa. Dist. R. Rev. 46. See contra, Duncan v. Com. 2 784; Com. v. Lynch, 6 Pa. Co. Ct. 536. Pearson (Pa.) 213. ^^' Johnston v. Com. 22 Pa. 102, 2 Am. "» Com. V. Shirley, 152 Pa. 170, 25 L. Reg. 285. I Atl. 819. ' CHAPTER XXXI. PENAL ACTIONS— CONTINUED. Offenses undeb Statutes. 732. Disturbing religious meetings. 733. Fish and game laws. 734. Pure food laws. 735. Sunday law. 736. Liquor on Sundays. 737. Disorderly conduct. 738. Profanity. 739. License laws. 740. Vagrancy. 741. Nuisances. 742. Road laws. 743. Other acts. 744. Judgment under statutes. 745. Execution under statutes. 746. Judgment under ordinaaces. 747. Execution under ordinances. 748. Revision of judgment. 749. Effect of payment. 750. Disposition of fines collected. 751. The record. 752. Institution of the proceeding. 753. Issuance of process. 754. Jurisdiction. 755. Statute or ordinance violated. 756. Presence of defendant. 757. Evidence. 758. Finding of fact. 759. Judgment. 760. Imprisonment. 761. Record under act of 1881. 732. Disturbing religious meetings.— A proceeding under the act of March 16, 1847, P. L. 447, § 4, is to be begun by information whidi charges the acts of disturbance complained of ;* but if not sufficiently speci.^c the defect will be cured by the appearance of the defendant and proceeding to ti-ial without objection.^ No form of conviction ^Gom. V. Burhhwrt, 23 Pa. 521; Com. 'Com. v. Burkha/rt, 23 Pa. 521. V. Sorber, 5 Kulp, 373; Com. v. Cane, 2 Pars. Sel. Eq. Gas. 265, 1 Am. L. J. 246. S51 552 CRIMINAL AND PENAL PROCEDURE. [ohap. xxxi. is prescribed by the statute, and the proceeding must, therefore, be according to the course of the common law.* On certiorari the judgment will be sustained if the evidence on whic]i the judgment is based was sufficient to go to a jury. The rec- ord is not to be treated in such case as an appeal, with bill of excep- tions.* 733. Fish and game laws. — An action of debt for the penalty pre- scribed by the act of April 8, 1834, P. L. 205, is proper.' Under the local act of April 7, 1852, the record must show the offense com- mitted.® In a prosecution under the act of May 2, 1889,^ the complaint must show that the stream in which the net was used was a trout stream.^ And under § 8 it must also appear that the stream was a trout stream, as well as when and where the fishing was done.® A conviction under this act must indicate when and where the offense was committed, and this is not supplied by the information unless ex- pressly made a part thereof. ■''* By the act of 1901 provision is made for the protection of fish, and violations of the directions made pun- ishable. The manner of arresting and proceeding in such case, and the disposition of the fines collected, have been fully set forth." Other legislation in 1901 provided for the arrest of violators of the game laws, and directed the procedure and disposition of the fine.-*^ 734. Pure food laws. — The record of a proceeding under the act of May 21, 1885,^* amended as to the disposition of the fine, act June 26, 1895,^* for the sale of oleomargarine, must contain a finding in express terms, or it must imply with certainty, that a special act has been performed by the defendant, and must describe and define it in such a way as to individuate it, and show that it falls within the un- lawful class of acts. Without this, a judgment that the law has been violated goes for nothing.^""* The record should show which section of the act has been violated, and that the defendant was found guilty of selling an article of the prohibited class before a magistrate hav- " Com. V. Cane, 2 Pars. Sel. Eq. Cas. '° Com. v. Einter, 1 Wilcox Rep. 3. 265, 1 Am. L. J. 246. "Act May 29, 1901, P. L. 313. This * Com. V. Miller, 4 Luzerne Leg. Eeg. legislation supplies and repeals the act 9. Here, objection to the refusal to re- of 1889 above noticed, ceive certain offers of testimony. "Act May 21. 1901, P. L. 266. " Carman v. OamUe, 10 Watts, 382. '" P. L. 22, § 3. 'Adams v. Com. 1 Woodw. Dec. 417. "P. L. 318. 'P. L. 267, § 1. "Com. v. Davison, 11 Pa. Super. Ct. 'Com. V. Clauss, 18 Pa. Co. Ct. 381, 130; Bess v. Monier, 1 Pa. Dist. R. 606, 5 Pa. Dist. R. 658, 5 Northampton Co. 23 Pittsb. L. J. N. S. 44 ; Com. v. Coch- Rpp. 278. ram, Creamery Co. 4 Pa. Co. Ct. 253. ' Com. V. Showalter, 15 Lane. L. Rev. 78. § 735] PENAL ACTIONS. 553 ing jurisdiction.^* It is not necessary to return tlie evidence under this act.^^ Where the proceeding is instituted hy means of the case stated, it is necessary that it aflSrmatively appear that the oleomargarine was sold as an article of food.-'* If there be no reservation of appeal in the case sta.ted, and such is taken, it will be quashed.^* In case of a summary conviction under the act of May 5, 1899,^" a record is defective which shows a charge of two offenses against the statute, and that defendant was convicted and held guilty of the of- fense charged, the conviction being too uncertain to be sustained.^^ The oleomargarine and renovated butter acts of 1901 provide for indictment.** A proceeding for the adulteration of milk, under the act of May 5, 1878,** is to be instituted in the quarter sessions, and no power is given to a justice of the peace to hear and determine.** 735. Sunday law. — A proceeding for the violation of the Sunday law under the act of April 22, 1Y94, must be instituted within seven- ty-two hours by § 4 of that act, and information must be made charging the acts done, with the time and place of their commission ; but it will be sufficient if sworn to positively, though based on in- formation and belief.*^ The complaint must show the act to have been committed on Sunday,*^ that the offense was committed within the county,*^ must charge a legal offense,*® and set forth that the work done was not within the excepted classes.*^ The record of the justice must show the particular act of worldly employment of which the defendant was found guilty.^" But it "Com. use of Patterson v. Blossom, 718, 10 Kulp, 319; Com. v. Phelps, 170 12 Pa. Co. Ct. 580. Pa. 430, 32 Atl. 1092 ; Noftsker v. Com. " Bess V. Monier, 1 Pa. Dist. R. 606, 22 Pa. Co. Ct. 559, 8 Pa. Dist. R. 572 ; 23 Pittsb. L. J. N. S. 44. Com. v. Wolf (No. 2) , 19 Lane. L. Eev. 92. •^ Com. V. Schollenlerger, 153 Pa. 625, " Paixer v. Com. 4 Kulp, 286, 4 Lane. 25 Atl. 999; Com. v. Schmidt, 13 Pa. L. Rev. 177. Co. Ct. 28. "Miller v. Com. 24 Pa. Co. Ct. 513; ^'Com. V. Callahan, 153 Pa. 625, 25 Com. v. Fuller, 4 Pa. Co. Ct. 429, 18 Atl. 1000. Phila. 610, 44 Phila. Leg. Int. 4-^2; ™P. L. 241. Com. V. Nagle, 19 Lane. L. E^v. 172; ^ CoTO. ex rel. Stephens v. XJhl, 10 Com. v. Diffenbaugh (No. 2), 19 Lane. Kulp, 483. L. Rev. 46. The information in Seaman =^Act May 29, 1901, P. L. 327, and v. Com. 11 W. N. C. 14, was held suf- act July 10, 1901, P. L. 643. ficient. " P. L. 144. =" Sackville v. Com. 24 Pa. Co. Ct. " Com. V. May, 24 Pa. Co. Ct. 546. 565 ; Com. v. Antrim, 23 Pa. Co. Ct. 48, " Knorr v. Com. 3 Montg. Co. L. Rep. 9 Pa. Dist. R. 374, 15 Montg. Co. L. 184, 4 Pa. Co. Ct. 32. Rep. 212, 2 Dauphin Co. Rep. 328; =« Com. V. Gelbert, 170 Pa. 426, 32 Noftsker v. Com. 22 Pa. Co. Ct. 559, 8 Atl. 1091; Com. v. McFadden, 10 Pa. Pa. Dist. R. 572; Com. v. IfesUt, 34 Pa. Dist. R. 718, 10 Kulp, 319. 398; Com. v. Fields, 4 Pa. Co. Ct. 434, "Com. V. McFadden, 10 Pa. Dist R. 18 Phila. 607, 44 Phila. Leg. Int. 442. 554 CRIMINAL AND PENAL PROCEDURE. [chap. xxxi. would seem to be siifficient if the description of the work done appear anywhere upon the record.^ ^ The record must also give the sub- stance of the testimony.*^ The conviction must show the day and year and of what offense the defendant is found guilty, and whether a hearing was had/' and the defendant can be found guilty and fined for but one offense on the same day.^* A writ of certiorari to secure review may be issued without special allowance."^ The contrary seems to have been held in Com. v. Mat- lernj^^ but it is not clear whether the dismissal was based on this ground. Such a conviction is within the meaning of the act of 1876, and an appeal will not lie to the common pleas.''' A justice has no right to enter upon the land of another to obtain evidence of the violation of the Sunday law.** For prosecutions under local Sunday laws in Allegheny county, see the following cases.'* For shooting on Sunday under the act of April 21, 1869, see West V. Com.*'^ For commitments in Philadelphia in case of conviction under the act of 1794, see Com. v. Stodler.*^ For shooting and fishing on Sunday under the acts of May 5, 1876,*2 and act of June 3, 1878,*' see Winhler v. Com.** 736. Liquor on Sundays. — The penalty provided by the act of Feb- ruary 26, 1855,*^ is recoverable as a debt.*® This act repealed the local act of April 4, 1851,*'' relating to Allegheny and Clarion coun- ties.*® The act of 1855 was again modified for Allegheny county '^Johnston v. Com. 22 Pa. 102; Com. "Com. v. Eyre, 1 Serg. & R. 347. V. Wolf, 3 Serg. & R. 48 ; Com. v. Jac- "» Nusser v. Com. 25 Pa. 126 ; Com. v. o6ms, 17 Pittsb. L. J. 154, Legal Gaz. Oillespie, 146 Pa. 546, 23 Atl. 393; Bur- Rep. 491. ry's Appeal, 1 Monaghan, 89, 5 Pa. Co. =^ Miller v. Com. 24 Pa. Co. Ct. 513 ; Ct. 481, Overruling Com. v. Bosch, 15 Com. V. Patton, 4 Pa. Co. Ct. 135. The W. N. C. 316; Com. v. Keithan, 1 Mon- reeords in Denzen v. Com. 3 Pa. Co. Ct. aghan, 368; Allegheny County v. Com. 168, and Splane v. Com. (Pa.) 11 Cent. 1 Monaghan, 119. Rep. 168, 12 Atl. 431, were held suffi- "2 Woodw. Dec. 61. cient. "15 Phila. 418, 39 Phila. Leg. Int. " Com. V. Camory, 2 Legal Chronicle, 384. 322. "^ § 16, P. L. 104. "Friedelom v. Com,. 113 Pa. 242, 57 "§ 17, P. L. 160. Am. Rep. 464, 6 Atl. 160; Com. v. «7 Pa. Dist. R. 696, 29 Pittsb. L. J. Moses, 15 Pa. Co. Ct. 224, 12 Lane. L. N. S. 168. Rev. 46. Contra, Duncam v. Com. 2 "P. L. 53, § 2. Pearson (Pa.) 213. "Com. v. Schweitxer, 1 Northampton "'Com. V. Wolf (No. 1) 19 Lane. L. Co. Rep. 375, 1 Lehigh Valley L. R. 21; Rev. 90. Com. v. McAleese, 12 Pa. Co. Ct. 147. " 24 Pa. Co. Ct. 655. " P. L. 548, § 2. " Com. V. Rosenthal, 3 Pa. Co. Ct. 26. « Nusser v. Com. 25 Pa. 126. For §§ 737-739] PENAL ACTIONS. 555 by a local act of 1872, which was in turn repealed by the general liquor law of 1887, thus reviving in that county the act of February 26, 1855. ■** No information is required as in the case of summary conviction, the penalty being recoverable as a debt.^" The record must show the offense to have been committed on Sunday,^^ and in- dicate the particular act done.^* If offenses on separate Sundays be joined, the record must show for which offense the penalty is im- posed.^* An appeal in such proceedings will be stricken off when taken with- out special allowance.'* 737. Disorderly conduct. — Proceedings under the act of February 1, 1866, are within the cognizance of the justice of the peace.®' The act of March 7, 1848,'" providing for the disbandment of fire companies for rioting on the streets, provided for the hearing before two judges of the quarter sessions.''' 738. Profanity.— The act of April 22, 1794,'^ provided for the punishment of profanity, but prescribed no form of conviction, which was therefore according to the course of common law, and every in- gredient of the offense must appear on the record. But the proceed- ing will not be reversed because the record states more than is neces- sary ;'® nor because the docket of the justice does not show the coiuity in which the offense was committed, when the information does ; nor need it show the alternative duration of impriiM)nment in case of failure to pay, where the conviction is in the precise form permitted by § 4 of the act.*" Though, as has been seen, the making of several oaths may be charged in one information, the defendant cannot be <^onvicted of the swearing of a greater number than those charged in the complaint.®^ 739. License laws. — Information for selling goods without a li- cense, contrary to the act of April 12, 1851,*^ relating to Philadel- proceedings under earlier acts, see Van 333. See Com. v. Brunner, 3 Pa. Co. Swartow v. Com. 24 Pa. 131. Ct. 28, 2 Lehigh Valley L. R. 377. " Durr V. Com. 3 Pa. Co. Ct. 525, 35 »» Com. v. Redshaw, 12 Pa. Co. Ct. Pittsb. L. J. 270, Affirmed in 11 Cent. 91, 2 Pa. Dist. R. 96, 10 Lane. L. Rev. Eep. 181, 12 Atl. 507. 71, 23 Pittsb. L. J. N. S. 100. "'Kern v. Com. 1 Pa. Co. Ct. 469, 2 ""P. L. 110. Del. Co. Rep. 490. " Be 'Northern Liberty Hose Go. 13 '^Mack V. Com. 4 Pa. Co. Ct. 256, 3 Pa. 193. Del. Co. Rep. 321. "« 3 Smith's Laws, 177, § 2. '^ Com. use of Guardians of Poor v. "'Com. v. Hardy, 1 Ashm. (Pa.). 410. Fmkheimer, 9 Phila. 504, 29 Phila. Leg. ™ Com. v. Dukehart, 17 Pa. Super. Ct. Int. 92. 71. "'Com. V. Boos, 1 Luzerne Leg. Reg. "Com. v. Cummings, 2 Clark (Pa.) 375. 49. "Gom. V. Sassaman, 2 Del. Co. Rep. »^P. L. 488, § 9. 556 CRIMINAL AND PENAL PROCEDURE. [chap. xxxi. phia, should follow the words of the act,®^ and must aver that the de- fendant has not obtained a license in the district covered by the act, and a conviction of the offense "charged upon, by such information," when such complaint does not fully set forth the charge, is defect- ive.«* The record must show that the defendant was charged with the selling of goods, as the agent of a foreign manufacturer,®^"® and must set iorth. the offense with particularity. It is not sufficient to charge it in the words of the statute, which creates several offenses.®^ Proceedings based upon the act of May 9, 1889,"® amending the act of April 16, 1840, providing for penalties in oases of hawking and peddling, are to be enforced by actions of debt, and not by indict- ment.®^ But proceedings instituted under the act of May 4, 1889,'^* requiring licenses for sales of merchandise, must be by indictment.^^ For records under local statutes, the following cases are referred to.''^ 740. Vagrancy. — A description of the offense in the words of the statute of March 13, 1862, P. L. 115, Avill be sufficient." The record in a proceeding under the act of May 8, 1876,''* must contain a finding of vagrancy as defined by § 1 of that act.''^ The commitment should direct compulsory labor.''^® 741. Nuisances.— Proceedings under the act of 1705, relating to stray hogs, must set forth the description of the act which caused the forfeiture, in the words of the statute.'''' The record must show, not merely a running at large, but that they were suffered to be at large by the owner.''* Por nuisance proceedings under the local act of " Com. V. Broiimhridg^, 1 Brewat. see 'Notsh v. Com. 2 C. P. Rep. 239 ; un- (Pa.) 399, 6 Phila. 318, 24 Phila. Leg. der the act of April 8, 1801, relating to Int. 244. Berks and Franklin counties, see Roth- "Com. V. Davenger, 10 Phila. 478, 30 ermel y. Zeigler, 7 Pa. Co. Ct. 505; for Phila. Leg. Int. 32^1. the effect of the act of April 21, 1852, "-' Com. V. Fiegle, 2 Pliila. 215. P. L. 387, § 2, relating to Berks county " Com. V. Gower, C. P. Phila. Oct. 7, in proceeding under the act of May 9, 1855, MSS. 1889, see Com. v. Winslow, 7 Pa. Co. Ct. " P. L. 150. 667. " Com. V. Stiles, 7 Pa. Co. Ct. 665 ; " Byers v. Com. 42 Pa. 89. Com. V. Winsloiv, 7 Pa. Co. Ct. 667. " P. L. 154, § 2. '"P. L. 86. ''^Com. V. King, 2 Kulp, 386. " Stroudsburg v. Brov-n, 1 Pa. Dist. " Vagrant's Case, 4 Pa. Co. Ct. 615 ; R. 334, 11 Pa. Co. Ct. 272, 9 Lane. L. Com. v. Scott, 25 Pa. Co. Ct. 210. Rev. 171, 3 Northampton Co. Rep. 158. '"Com. ex rel. Wilson v. llf Bogs, 10 " For the record under the act of May Serg. & R. 393. 10, 1866, P. L. 1082, relating to Lebanon ™ Shaw v. Com. eao rel. Stratford, 72 county, see Com. v. Fisher, 3 Lane. L. Pa. 68; Boice v. Curtis, 2 Luzerne Ijeg. Rev. 17; under the act of April 7, 1870, Reg. LOS. P. L. 1040, relating to Luzerne county. §§ 742-744] PKNAL ACTIONS. 557 May 19, 1873/* relating to Allegheny county, see Laverty v. Com.^" Under special ordinance of Harrisburg, see Duck v. Chief Burgess.^^ 742. Road laws.— The penalty provided by § 67 of the act of June 13, 1836, for obstructing roads, applies to highways in boroughs, when there is no ordinance on the subject ; and an appeal by the com- monwealth may be specially allowed.*^ The record under § 70 of this act, extended by the act of 1864,*^ must show that the notice re- quired by the statute to be placed in the bridge was there.** The act of May 7, 1889,*^ relating to driving on sidewalks, when taken in connection with the act of April 23, 1889,*® applies to bi- cycles.*'' 743. Other acts— Proceedings under the act of April 20, 1853,** relating to vending registered bottles, must show that they were stamped with the name of the vendor and manufacturer, and that he was such under the act.*® Under the act of September 29, 1770, summary proceedings against an apprentice cannot be instituted after he has reached the age of twenty-one.*" Proceedings under the act of June 8, 1895, relating to physicians, are appealable to the court on special allocatur, but an indictment does not lie.*^ Under the act of March 11, 1834,*^ relating to gambling in inns and taverns, an action of debt is contemplated, and not an indict- ment.*^ The record under the act of April 15, 1845,** for failure to comply with regulations as to weights and measures, must show the use of the same after the failure to comply with a notice to bring the same for adjustment to the regulator.*^ For proceedings in Philadelphia un- der \he local act of March 10, 1817, see Com. v. Oillwm.^^ 744. Judgment under statutes. — In suits for penalty for malicious trespass, the justice has no power to enter a judgment for personal '•§ 16. "0' Malta v. Com. 4 C. P. Rep. 172. "4 Pa. Co. Ct. 137, 35 Pittsb. L. J. " Flaocm v. Smith, 30 Pittsb. L. J. 70, 4 Lane. L. Efiv. 345. 129. " 7 Watts, 181. °' Com. v. Chadma/n, 19 Lane. L. Rev. '^Com. V. Alexander, 2 Chester Co. 117. Rep. 267. " P. L. 122. "»P. L. 68, § 1. ''Com. V. Conrad, 25 Pa. Co. Ct. 32, " Dosch V. Btrayer, 2 York Legal Reo- 10 Pa. Dist. R. 342, 58 Phila. Leg. Int. ord, 113. 290, 18 Lane. L. Rev. 191. »P. L. 110. "P. L. 443, § 7. » P. L. 44. " Com. V. Flinchbaugh, 1 York Legal "Com. V. Forrest, 170 Pa. 40, 29 L. Record, 1. R. A. 365, 32 Atl. 652. ■• 8 Serg. & R. 50. « P. L. 453. 558 CRIMINAL AND PENAL PROCEDURE. [chap. xxxi. damages in favor of die complainant f^ and where a judgment is en- tered for excessive fees, damages for the detention are allowed when suit is by the party aggrieved.** If the statute provides that the penalty shall be applied in a cer- tain way, the judgment must follow this direction.®* But if the statute does not so direct, the judgment need not distribute the pen- alty.-'*'*' A judgment for violation of the Sunday law of 1794 need not adjudge in words that the defeudant shall pay the penalty,^"^ or direct to whom it is payable,^"^ or the nature of the work done,'"^ or the place of commitment in case the penalty is not paid.^"* But it has been held that a line imposed after conviction, for cruelty to ani- mals, shall state to whom the penalty is payable.^*'^ The judgment must not exceed the penalty imposed by the statute,^"® nor can it be diminished.-"''^ It is not essential that the conviction be under seal, under the act of 1794.1''* The judgment imposing the penalty need not prescribe the alterna- tive imprisonment, in lieu of failure to pay,^*'* though the warrant of imprisonment must do sc'^" JSTor -will proceedings under the act of 1794 be reversed because the record of the conviction does not show the alternative duration of imprisonment to be suffered on failure to pay the forfeiture or furnish a sufficient distress, if it is in the pre- cise form permitted, if not peremptorily prescribed, by the 4th sec- tion of that act^ 745. Execution under statutes. — In case of failure to pay, the de- fendant can be committed to the county prison. ^^^ But the only exe- cution allowed under the act of 1847 is a mittimus to arrest the per- son of the defendant, and not by levy upon his goods.^^^ The de- " Sweeney v. McCloskey, 1 Kulp, 492. "» Com. v. Collins, 15 Phila. 383, 38 '^Ritchie V. Bhomnon, 2 Eawle, 196. Phila. Leg. Int. 252. °° Com. V. Ressequi, 1 Law Times N. ■" Mack v. Miller, 9 Montg. Co. L, S. 124; Com. ex rel. Pennsylvania Soc. Rep. 96. for Prevention of Cruelty to Animals v. ^^ Com. v. Wolf, 3 Serg. & R. 48 Randall, 10 Phila. 451, 32 Phila. Leg. Com. v. Cummings, 2 Clark (Pa.) 49. Int. 456, 2 W. N. C. 210. "» Com. v. Borden, 61 Pa. 272; Com ™Com. V. Liller, 12 Lane. Bar, 188. v. Kinter, 1 Wilcox Rep. 3; Com. v, '" Com. V. Jaeoius, Legal Gaz. Rep. Bashore, 1 Legal Record Rep. 255. 491, 2 Legal Gaz. 78. ^^'' Com. v. Borden, 61 Pa. 272; Com. "" Com. V. McAndreiDS, 3 Lack. Legal v. Kinter, 1 Wilcox Rep. 3. News, 339. ^'■^ Com. v. Dukehairt, 17 Pa. Super. '"Coot. v. Wolf, 3 Serg. & R. 48. Ct. 71. '" Cor.i. V. MoAndrews, 3 Lack. Legal "= Com. v. Stodler, 15 Phila. 418, 39 News, 339. Phila. Leg. Int. 384; Com. ex rel. Col "" Davis V. Com. 13 Pa. Co. Ct. 545, lert v. Kerr, 25 Pittsb. L. J. N. S. 367 3 Pa. Dist. R. 668. "» Com v. Sorher, 5 Kulp, 373. §§ 746, 747] PENAL ACTIONS. 559 fendant must be given tke opportunity to produce goods sufficient to satisfy the fine imposed, and should not be directly committed to the county jail.^1* tinder the act of May 8, 1876, relating to vagrancy, the commit- ment should direct compulsory labor. Otherwise, the vagrant may be discharged on habeas corpus at the instance of the county commis- sioners.^^'^ As has been noticed, double penalties may be imposed under certain statutes.'^® A judgment at the instance of one party aggrieved by an offense will bar a second proceeding by another party injured by the same act.^^' 746. Judgment under ordinances. — The judgment for the penalty imposed by an ordinance must show for which offense it is inflicted, where more than one is charged therein.^^* It must be according to the ordinance, for a sum certain,"* but the amount of the penalty must be stated,^^'' and it must be a sum certain.^^^ So, a judgment for "$1.25 costs" is not good under an ordinance authorizing a fine not exceeding $20.-^^ And a record showing a suit between private individuals will not sustain a judgment for a penalty for the super- visors of a county in addition.^^* A sentence is to be imposed, but the proceeding will not be reversed and restitution ordered, when this is not set forth, where involuntary payment did not appear.^^* 747. Execution under ordinances. — The pecuniary penalty imposed may be paid by the defendant, or a sum sufficient appropriated from goods found in his possession at the time of the arrest, in order to satisfy the fine, and the defendant has no option to compel its return, and demand imprisonment in place thereof.^ ^^ Though a fine may be imposed by municipal ordinances, no power exists to imprison upon failure to pay such fine, unless there be express legislative au- thority.^^® Provision has been made in cities for imprisonment,^ ^^ "* Paimer v. Com. 4 Kulp, 286, 4 Lane. "^^ Wilkes-Ba/rre v. Kosek, 1 Kulp, L. Rev. 177. 454. '■^Yagramt's Case, 4 Pa. Co. Ct. 615; ^Wilson v. Walton, 1 Phila. 517. Com. V. Scott, 25 Pa. Co. Ct. 210. ^ Baeleton v. Birdie, 10 Kulp, 98. "' See § 729, ante. "" McCann v. Barr, 6 Pa. Dist. E. ™ Boner v. Miller, 2 York Legal Rec- 721, 16 Lane. L. Rev. 183, 19 Pa. Co. ord, 176. Ct. 669, 28 Pittsb. L. J. N. S. 155, 13 ™ City use of Fairmount Parh v. Montg. Co. L. Rep. 179, 1 Docket, 124. Junker, 9 Pa. Dist. R. 673; Carlisle v. ^Butler's Appeal, 73 Pa. 448; Egger Baker, 1 Yeates, 471. ex rel. Hanover v. Btine, 12 Pa. Co. ^ Manayunk v. Davis, 2 Pars. Sel. Ct. 316; Oraf/ins v. Com. 3 Penr. & W. Eq. Cas. 289. 502; Honesdale v. Weaver, 2 Pa. Dist. ^'' Mayor v. Ha/rkins, 1 Phila. 518. R. 344; Coden v. Gettysburg, 8 Legal ^Bolivar v. Coulter, 10 Pa. Dist. R. Gaz. 167. In Reid v. Wood, 102 Pa. 171; PhilUps v. Allen, 41 Pa. 481, 82 312, it seems to have been done without Am. Dec. 486; Com. v. Clark (No. 2) objection. 14 Lane. L. Rev. 42. »" See §§ 713-715, ante. Jurisdiction. 560 CRIMINAL AND PENAL PR0CEDUE!3. [chap. xxxi. in borouglis,^*^ in townships of the first class,*^® and by special char- ters-i^^o 748. Revision of judgment. — So far as the magistrate is concerned, the judgment is final, and he has no power to subsequently alter the sentence imposed. A subsequent order to the prison keeper to re- lease is of no effeet.^*^ N^or can he settle a case without the consent of the complainant, after bail has been given for court on conviction of malicious trespass under act of June 8, 1881. ■'^^ 749. Effect of payment. — If there be a voluntary payment and sat- isfaction of the fine and costs, the ease cannot be considered by the court of common pleas on certiorari, for this is a termination of the proceedings. ■'^■' But if the fine be paid under protest, the jurisdic- tion of the court on certiorari is not ousted,^^* or if the record shows an exaction of a fine without any conviction or judgment.^ *^ The restitution of a fine by the court is a matter of grace, and not of right,^^^ and it may be granted on certiorari, but not on appeal.**^ But where the fine and costs in one proceeding were paid by the de- fendant, the court on appeal from the second judgment for the same offense will remit the penalty on the payment of costs.^**"® Kestitu- tion will not be granted, where it does not appear that payment was involuntary.^*" Nor as against a borough, where it does not appear that the fine was paid to the borough treasurer.^*^ No power exists in the governor to remit penalties imposed under the act of April 2, 1830, relating to hawkers and peddlers, after judg- ment and execution issued, where such were not payable to the state.1" 750. Disposition of fines collected. — Provision is made in the vari- ous penal statutes for the disposition of the fines collected. Tor ex- ample, sums imposed and collected for disturbances on or near pub- ^Act June 4, 1897, P. L. 121. ^''Com. v. Som, 12 Pa. Co. Ct. 284, ■^'Act June 10, 1901, P. L. 551. 10 Lane. L. Eev. 23, 5 Del. Co. Eep. ™ For the powers to imprison under 171, 8 Montg. Co. L. Rep. 199. special charters, see Barter v. Com. 3 ^''Bolivar v. Coulter, 10 Pa. Dist. R. Penr. & W. 253 (Lancaster), followed 171; Com. v. Ferree, 6 Pa, Dist. R. 639, in Pittsburgh v. Young, 3 Watts, 363; 20 Pa. Co. Ct. 87, 1 Docket, 98. Wilkes-Barre v. Kosek, 1 Kulp, 454 ^'^ Leffingwell v. Wilkesbarre, 4 Kulp, ( Wilkesbarre ) ; Com. v. De Lacey, 3 494. Law Times N. S. 225 (Scranton). Most ^" Com. v. Scott, 28 Pittsb. L. J. 446. of this legislation permits a collection ""-" Com. v. Martin, 7 Pa. Co. Ct. 153. by execution if the plaintiff desires. "° Com. v. Shofnoski, S Pa. Dist. R. ^^^ Com. ex rel. McCoy v. Count;/ 784; Hanleton y. Birdie, 10 Kulp, 98. Prison Superintendent, 14 W. N. C. 171. ^"^ Sohlager v. IJanticohe, 4 Kulp, 244, ""Com. V. Laubacher. 4 Pa. Co. Ct. 522. 606. ''^Shoop V. Com. 3 Pa. St. 126. ^•"Oom. V. CHpner, 118 Pa. 379, 12 AU. 30&. §§ 751-754] PENAL ACTIONS. 561 lie highways are made payable to the county treasurer.^** Likewise, moneys received for the violation of city ordinances are payable to the city treasurer, unless otherwise directed. Or, in case of bor- oughs, to the borough treasurer.^** Or, in the case of to-wnships, to the township treasurer.^ *^ 751. The record. — In summary convictions, actions for penalties under statutes, and for fines for the violation of city or borough ordi- nances, the record of the proceedings before the justice must contain certain essentials, which are separately considered in the following sections. 752. Institution of the proceeding.— It must appear that the pro- ceeding was duly instituted by information in case of summary con- viction.^*® Certain penalties are recoverable in the same manner as debts are by law recoverable ; as, e. g., in proceedings for the recovery of fines for the violation of ordinances. In such case the charge made must appear of record.-''*'^ ^Vhere an a,rrest has been made on view, then the charge must be reduced to writing immediately, and such must appear of record.^** See acts for cities, boroughs, townships, §§ 713-YlY, ante. 753. Issuance of process. — The record must show the issuing of a warrant, or a summons for the defendant.^*® But if the record show a summons in debt, whereas it read "to answer a plea of penal debt," the variance is immaterial.^ ^""^ 754. Jurisdiction. — The jurisdiction of the magistrate must ap- pear. !N'o presumption in favor of the jurisdiction of the justice is to be made.-'^^ The complaint must allege that the offense was com- mitted in the county in which the proceedings were instituted,^ "^ and the record must show where it was committed.^'* "'Act June 25, 1895, P. L. 271. ^'^ Com. v. Richer, 13 W. N. C. 142. '"Act June 24, 1895, P. L. 255, ^"-^ Golm. v. Phelps, 170 Pa. 430. 32 amending act of April 13, 1876. Atl. 1092; Com. v. FUnchlaugh, 1 York "=Aet June 10, 1901. P. L. 551. Legal Record, 1; Com. v. Clauss, 18 Pa. ^'"Com. V. Borden, 61 Pa. 272; Com. Co. Ct. 381, 5 Pa. Dist. E. 658, 5 V. Gelbert, 170 Pa. 426, 32 Atl. 1091; Northampton Co. Rep. 278; Davis v. Com. V. Phelps, 170 Pa. 430, 32 Atl. Com. 6 Del. Co. Rep. 60, 4 Northamp- 1092; Rothermel v. Zeigler, 7 Pa. Co. ton Co. Rep. 309. 1 Lack. Jur. 102, 3 Ct. 505. Lack. Jur. 373. But see Stroudshurgv. ^" CUrk V. Ba/rtlett, 8 Phila. 301; Brown, 1 Pa. Diat. R. 334, 11 Pa. Co. Fraily v. Sparks, 2 Pars. Sel. Eq. Cas. Ct. 272, 9 Lane. L. Rev. 171, 3 North- 232. ampton Co. Rep. 158. "* Johnson v. Borough, 3 Kulp, 244. '" Com. iise of Guardians of Poor v. "° Com. V. Borden, 61 Pa. 272 ; Fraily Fi/nhheimer, 9 Phila. 504, 29 Phila. Leg. V. Sparks, 2 Pars. Sel. Eq. Cas. 232. Int. 92; Com. v. Read, 8 Del. Co. Rep. ""-' Fetterman v. Rollins, 100 Pa. 52. 284. Pa. Crim. Proc. — 36. 662 CRIMINAL AND PENAL PROCEDURE. " [chap. xxh. The complaint must diarge acts which constitute the offense. If these are omitted, they cannot be supplied by the warrant, docket en- tries, reference to the almanac, or the evidence at the trial. Thus, where there was no allegation that the work done was performed on Sunday, it was defective.*^® But if the doing of the work on Sun- day is charged, the failure to allege its character will not render the proceeding bad, where it is elsewhere described.^^® Where the in- formation charges the offense in the language of the statute, giving the time and place of its commission, it will be sufficient if the ju- risdiction of the justice is clearly established on the record as a whole.^^'^ And it has been held that though the record does not show jurisdiction, if a plea of guilty has been entered, the proceedings will be sustained.^"" Under ordinances it is necessary also that the record show juris- diction.^^* Thus, it must appear that the offense was committed within the city limits.*^* But it has been held that it need not state the county, where the town is given.^^^ It must show that the offense was committed after the passage of the ordinance forbidding it,^*^ and it must appear that the commission of acts which were prohibited was charged.^®^ If the guilt depends upon the doing of the act in a certain locality, the fact that it was there done must appear.-'®* Parol evidence may be introduced to show the lack of jurisdiction.^®^ 755. Statute or ordinance violated. — The record must set forth the statutory provision which has been violated. The substance of the statute, with its title and date, should be given. ^®® It is suffieient if these references be by title, section, and date, though the act be lo- cal.^"'' But the record in such case must be sufficiently specific, so '«' Com. V. Oelbert, 170 Pa. 426, 32 Rev. 171, 3 Northampton Co. Rep. 158. Atl. 1091. But see note 153, supra. ^Johnston v. Com. 22 Pa. 102. ^"^ Pittston v. Dimond, 4 Pa. Dist. R. '" Com. V. Ayers, 17 Pa. Super. Ct. 200, 15 Pa. Co. Ct. 543, 7 Kulp, 431, 12 352. Lane. L. Rev. 120; Reading v. O'Reilly, ™ Com. V. GillinghoM,, 1 Brewst. 1 Woodw. Dec. 408. (Pa.) 396. ''= Clark v. Bartlett, 8 Phila. 301; ""' City V. Duncan, 4 Phila. 145, 17 Manayunk v. Davis, 2 Pars. Sel. Eq. Phila. Leg. Int. 373, 6 Kulp, 377, 7 Cas. 289; Hldivardsville v. Crawtechcn, Lane. L. Rev. 58; Com. v. Hill, 3 Pa. 10 Kulp, 251. Dist. R. 216, 12 Pa. Co. Ct. 559, 23 "' Winton v. Delaware & U. Canal Co. Pittab. L. J. N. S. 357. 11 Pa. Co. Ct. 167, 1 Pa. Dist. R. 701, ™ Philadelphia v. TJell, 3 Yeates, 475; 2 Lack. Jur. 210, 9 Lane. L. Rev. 188- Mayor v. Mason, 4 Dall. (Pa.) 266; Philadelphia v. Minteer, 2 Phila. 43 Flood V. Ashley, 5 Kulp, 462; Ply- ^<" Lehighton v. Smith, 9 Pa. Dist. R. m,outh V. Penkok, 7 Kulp, 101; St. 428, 7 Northampton Co. Rep. 190, 6 Clair V. Gill, 1 Legal Record Rep. Lack. Legal News, 192. 88. "» Nash v. Com-. 2 C. P. Rep. 239. '" Stroudshurg v. Brown, 1 Pa. Dist. '" Van Swartow v. Com. 24 Pa. 131 ; R. 334, 11 Pa. Co. Ct. 272, 9 Lane. L. Oihbons v. Wandell, 2 Kulp, 344; Com. § 755] PENAL ACTIONS. 563 as to identity the statute tmder which the proceedings are had.'®* To refer to the day of approval without referring to title, page, or provisions is defective.'®* But a mere jnisstatement of the section of the act referred to in the record will not vitiate tie proceeding.'^" In proceedings under ordinances, the substance of the ordinance violated must he referred to.''" It is not sufficient to refer to the act as opposed to the ordinance of a certain borough.'''^ Nor to refer to it in the information alone.''^" The court will not take judicial no- tice of the ordinance, and a reference to it by date is insufficient,'^* as is a mere reference to the section of an ordinance of a certain date.''^^ The substance of the section violated should be set forth,'^® and the record cannot be supplemented by attaching a copy of the or- dinance.'"'' If the reference be to a section different from the one on which the penalty is imposed, the judgment cannot be sus- tained,'^* or if an ordinance be givem which attaches no penalty to the conmiission of the act charged.' ''* For it must appear that an ordinance has been violated.'*" If several offenses be charged in the same ordinance, which is referred to, a general reference will not be sufficient,'*' and the judgment in such case cannot be sustained, though the evidence show a prohibited act done.'*^ V. McAndreiDS, 8 Kulp, 335. See Com. '"''^ Com. v. Hill, 3 Pa. Dist. R. 216, 12 V. FlincKboMgh, 1 York Legal Record, 1, Pa. Co. Ct. 559, 23 Pittsb. L. J. N. S. and Sackville v. Com. 24 Pa. Co. Ct. 357. 565. In Denzm v. Com. 3 Pa. Co.Ct. 654, "* City v. Cohen, 13 W. N. C. 468. convictions were affirmed under the act ^''"Hanover v. O'Bold, 11 York Legal of 1794, though there was no reference Record, 131; Manayunh v. Davis, 2 to the statute. It has been held suffi- Pars. Sel. Eq. Cas. 289 ; Fraily v. cient in a qui tarn action that the stat- Sparks, 2 Pars. Sel. Eq. Cas. 232. In ute be referred to by its title. Com. Lemon v. Reidel, 1 Lane. L. Rev. 3, 4 V. Evans, 29 Phila. Leg. Int. 133. York Legal Record, 164, it was held '™ Dosoh V. Strayer, 2 York Legal Rec- that a reference by number, section, and ord, 113. date was sufficient. ^°» Com. V. Senft, 6 Del. Co. Rep. 37, ™ City v. Duncan, 4 Phlla. 145, 17 8 York Legal Rec. 65, 3 Lack. Jur. 378. Phila. Cteg. Int. 373, 5 Kulp, 377, 7 ™ BlessiMgton v. Com. (Pa.) 12 Cent. Lane. L. Rev. 58; St. Glair v. Qill, 1 Rep. 512, 14 Atl. 416. Legal Record Rep. 88; City use of Fair- ^''^ Ridley Park v. Chester, D. & P. R. mount Park v. Junker, 9 Pa. Dist. R. Co. 24 Pa. Co. Ct. 3, 8 Del. Co. Rep. 27; 673; Philadelphia v. Camphell, 11 Phila. Manayunk v. Davis, 2 Pars. Sel. Eq. 163, 33 Phila. Leg. Int. 12. Cas. 289 ; Pittsturg v. Madden, 3 Pa. "' Wilcox v. Knowville, 2 Pa. Dist. R. Dist. R. 771, 14 Pa. Co. Ct. 120, 24 721, 12 Pa. Co. Ct. 641 ; Flood v. Ash- Pittsb. L. J. N. S. 283; Com. v. Lynch, ley, 5 Kulp, 4B2. 6 Pa. Co. Ct. 536; HennersUts v. Read- ™ Schnell v. City, 1 W. N. C. 636. ing, 1 Woodw. Dee. 264; Bolivar v. "' Lancaster -v. Hirsh, 1 Lane. L. Rev. Coulter, 10 Pa. Dist. R. 171 ; Northern 209. Liberties v. O'Neill, 1 Phila. 427; '^ Edwardsville v. Crawtechen, 10 Stroudshurg v. Brovyn, 1 Pa. Dist. R. Kulp, 251. 334, 11 Pa. Co. Ct. 272, 9 Lane. L. Rev. »" Wilkes-Barre v. Kosek, 1 Kulp, 171, 3 Northampton Co. Rep. 158. 454; Duck v. Chief Burgess, 7 Watts. "" Com. V. Ryan, 2 Del. Co. Rep. 225, 181. 2 Lane. L. Rev. 24. »« Johnson v. Pittston, 3 Kulp, 244. 564 CRIMINAL AhD PENAL PROCEDURE. [chap. xxxi. 756. Presence of defendant. — The appearance or nonappearance of the defendant should be set forth, and it should appear that the de- fendant had an opportunity to be heard.^®* 757. Evidence. — The substance of the evidence taken by the jus- tice in support of the charge must be set forth in proceedings for statutory penalties.^^* But it need not be given in full so long as the substaaice thereof appears.^*** It is not sufficient for the magis- trate to merely state his conclusion from the evidence submitted/*" or merely to state that witnesses were sworn and examined.-'*^ The testimony of the witnesses of both plaintiff and defendant is within the rule stated.^** A copy of evidence attached to the record doe.s not make it part of the same.^*''* Nor can docket entries be referred to, to supply necessary averments of the information.^®" In ease a dimi- nution of tlie record is suggested, the court may require evidence to be retumed.^®^ Where the statute provides for the recovery of a penalty in the same manner as debts of like amount are recoverable, it has been said that the rule applying to civil proceedings under the act of 1810 con- trols, and that therefore the evidence, or its substance, need not be re- tumed.i»2 ™ Com. V. Lynch, 6 Pa. Co. Ct. 536. Fmhheimer, 9 Phila. 504, 29 Phila. Leg. ^"Bothermel v. Zeigler, 7 Pa. Co. Ct. Int. 92; Com. v. Cane, 2 Pars. Sel. Eq. 505; Com. v. Grader, 5 Northampton Cas. 265, 1 Am. L. J. 246; Van Swar- Co. Rep. 81, 4 Pa. Dist. R. 731, 17 Pa. tow v. Com. 24 Pa. 131; City use of Co. Ct. 4, 13 Lane. L. Rev. 39; Com. Fairmount Park v. Junker, 9 Pa. Dist. V. Richer, 15 W. N. C. 142; Com. v. R. 673. King, 2 Kulp, 386; Ott v. Jordan, 116 ^ Com. v. Bashore, 1 Legal Record Pa. 218, 9 Atl. 321; Com. v. Ba/rd, 10 Rep. 255. Lane. Bar, 75; Com. v. McAndrews, 3 ^"^ Com. v. Cane, 2 Pars. Sel. Eq. Cas. Laek. Legal News, 339; Com. v. Schall, 265, 1 Am. L. J. 246; Miller v. Com. 24 5 York Legal Reeord, 187; La/eerty v. Pa. Co. Ct. 513. Com. 4 Pa. Co. Ct. 137, 35 Pittsb. L. J. "" Com. v. Qipner, 118 Pa. 379, 12 70; Clark v. Bartlett, 8 Phila. 301; Atl. 306. Com. ew rel. Seibert v. Marvngers of ""Com. v. Gelbert, 170 Pa. 426, 32 House of Correction, 26 Pa. Co. Ct. 378, Atl. 1091. 10 Pa. Dist. R. 371, 58 Phila. Leg. Int. "' Com. v. Fuller, 4 Pa. Co. Ct. 429, 312; Com. v. Fuller, 4 Pa. Co. Ct. 429, 18 Phila. 610, 44 Phila. Leg. Int. 442; 18 Phila. 610, 44 Phila. Leg. Int. 442 ; Denzm v. Com. 3 Pa. Co. Ct. 654. Com. V. Liller, 12 Lane. Bar, 188; Com. "^ Ott v. Snyder, 3 Lane. L. Rev. 185; V. Kinter, 1 Wilcox Rep. 3; Com. v. Hess v. Monier, 1 Pa. Dist. R. 606, 23 Patton, 4 Pa. Co. Ct. 135; /Se Delaware Pittsb. L. J. N. S. 44. The court here County Tump. Road, 4 Pa. Co. Ct. 101 ; distinguishes those cases for penalties Com. V. Nesbit, 34 Pa. 398. The con- in which the act directs that the suit trary was held in Com. v. Hardy, 1 shall be in the name of the common- Ashm. (Pa.) 410. For discussion of wealth. Com. ex rel. Johnson v. Betts, this ease, see Com. v. Patton, 4 Pa. Co. 76 Pa. 465. But the same reason would Ct. 135. S'Pply to actions for penalties under or- "" Com. V. Borden, 61 Pa. 272 ; Tan dinances, where it is universally held Suartow v. Com. 24 Pa. 131. that the essentials of the evidence must '"° Com. use of Guardians of Poor v. appear. § 758] PENAL ACTIOAS. 565 In case of proceeding under ordinances, the essential part of the evidence should be stated.^^* In Wilkesbarre, under special char- ter, the record must state the "testimony in detail, rather than the impressions or conclusions" resulting from it.'^^* A failure to show that evidence was produced, or that defendant confessed, is fatal.^®^ 758. Finding of fact. — The offense charged must be set forth with precision, and a finding must appear that the acts prohibited have been done, in proceedings under statutes for penalties.-'^® This is necessary to protect the defendant from a second prosecution for tlie same offense.-'®^ li finding must be of the act charged in the infor- mation,^^* and it must appear by the facts found that the act is with- in the class prohibited.^ ^® It is suiEcient if the words of the statute be followed tyith the statement that the offense is satisfactorily proved.*'"' Though this would be insuificient where the statute charges several distinct offenses.*"^ It must also appear that the of- fense is not barred by the statute of limitations.*"* In case of ordinances, it must appear that the defendant confessed, or that sufficient evidence was produced.*"^ But the admission of a charge not within the ordinance cannot sustain a judgment,*"* and a mere entry of a judgment is not sufficient.*"^ There must be a fiud- ^^ St. Clair v. Carr, 2 Legal Record ^^ Adams v. Com. 1 Woodw. Dec. 417. Rep. 87; City v. Harbison, 10 Phila. ^^ Com. ex rel. Seihert \. Managers of 306, 32 Phila. Leg. Int. 40, 1 W. N. C. House of Correction, 26 Pa. Co. Ct. 378, 186; Lehighton v. Smith, 9 Pa. Diat. R. 10 Pa. Dist. R. 371, 58 Phila. Leg. Int. 428, 7 Northampton Co. Rep. 190, 6 312. Lack. Legal News, 192; Wilcoxv. Kruosc- ^ Com. v. TiesUt, 34 Pa. 398; Sack- mile, 12 Pa. Co. Ct. 641, 2 Pa. Dist. R. ville v. Com. 24 Pa. Co. Ct. 565; Com,. Til; Stroudshurg v. Com. 1 Pa. Dist. R. v. CUmss, 18 Pa. Co. Ct. 381, 5 Pa. Dist. 334, 11 Pa. Co. Ct. 272, 9 Lane. L. Rev. R. 658, 5 Northampton Co. Rep. 278; 171, 3 Northampton Co. Rep. 158; Lan- Com. v. Ayers, 17 Pa. Super. Ct. 352; caster v. Boer, 5 Lane. Bar, No. 28; Com. v. Davison, 11 Pa. Super. Ct. 130; Philadelphia V. Gamplell, 11 Phila. 163, Com. v. King, 2 Kulp, 386; Com. v. 33 Pbila. Leg. Int. 12; City v. Hirsch- Fisher, 3 Lane. L. Rev. 17. line, 1 Woodw. Dee. 142. "^ Byers v. Com. 42 Pa. 89. ^'' Jones V. City, 2 Kulp, 68. In City ^ Com. ex rel. Stepnens v. Uhl, 10 V. Duncan, 4 Phila. 145, 17 Phila. Leg. Kulp, 483; Com. v. Grower, C. P. Phila. Int. 373, 5 Kulp, 377, 7 Lajic. L. Rev. Oct. 7, 1855, MSS. 58, it was held that the record was suf- ^' West v. Com. 2 Woodw. Dec. 61 ; ficient, if it appeared that evidence Com. v. Davenger, 10 Phila. 478, 30 was adduced in support of the charge Phila. Leg. Int. 321. by witnesses sworn and examined. ^' St. Glair v. Oill, 1 Legal Record "=Sf. Clair v. Oill, 1 Legal Record, Rep. 88; Clark v. Bartlett, 8 Phila. 301. Rep. 88 ; Wilkes-Barre v. Koseh, 1 Kulp, '°* 'Northern Liberties v. O'Neill, 1 454; City v. Duncan, 4 Phila. 145, 17 Phila. 427. Phila. Leg. Int. 373, 5 Kulp, 377, 7 ^ Wilcox v. Knoxville, 2 Pa. Dist. R. Lane. L. Rev. 58. 721, 12 Pa. Co. Ct. 641. ^"Laverty v. Com. 4 Pa. Co. Ct. 137- 35 Pittsb. L. J. 70. 666 CRIMINAjl. and PENAL PROCEDURE. [chap. xxxr. ing of fact that the offense charged was proved.*^^ And the offense found must be embraced within the ordinances alleged to be violat- ed.20'' 759. Judgment. — It must appear that defendant was found guilty and judgment was duly entered ag'ainst him.^"* A record of convic- tion in the words of the 4th section of the act of 1794 for the viola- tion of Sunday law, is sufficient.^"* Likewise, in case of proceedings under ordinances, there must be a finding of the guilt of the defendant, and the due entering of a judg- ment against him.^^" After a judgment for the violation of an ordi- nance, the penalty imposed must appear.^^^ But a penalty not au- thorized by the ordinance will be set aside.^^^ The mere fact that the record fails to show the passing of a judgment will not prevent a re- view of the proceedings on certiorari, but such defect will be ground for reversal.^^* 760. Imprisonment. — The record need not show the alternative du- ration of imprisomnent cm failure to pay the fines inflicted or to fur- nish sufficient distress.^^* Nor is it necessary that the conviction or judgment so state, but such must appear as a part of the warrant^^^ 761. Record under act of 1881. — To give the court of quarter ses- sions jurisdiction in proceedings for malicious trespass under the act of 1881, the record must show a conviction, a sentence with a refusal to pay, and the entry by defendant into a recognizance to appear at the next court.^^® ^"'Beid V. WooA, 102 Pa. 312; Win- 71; Com. v. Gipner, 118 Pa. 379, 12 ton V. Delmcare & U. Canal Go. 11 Pa. Atl. 306. Co. Ct. 167, 2 Lack. Jur. 210, 1 Pa. "" City v. Duncan, 4 Phila. 145, 17 Dist. R. 701, 9 Lane. L. Rev. 188; Ken- Phila. Leg. Int. 373, 5 Kulp, 377, 7 sington v. Glenat, 1 Phila. 251; Phila- Lane. L. Rev. 58; City v. Hirschline, 1 delpMa v. Eughes, 4 Phila. 148, 17 Woodw. Dee. 142; Clark v. Bartlett, 8 Phila. Leg. Int. 381; Mayor v. Wards, Phila. 301. 1 Phila. 517; Glarlc v. Bartlett, 8 Phila. "' Com. v. Bill, 3 Pa. Dist. R. 216, 12 301; Agnew v. Washington, 7 Pa. Co. Pa. Co. Ct. 559, 23 Pittsb. L. J. N. S. Ct. 180; City v. Barhison, 1 W. N. C. 357; Manayunk v. Davis, 2 Pars. Sel. 186, 10 Phila. 306, 32 Phila. Leg. Int. Eq. Cas. 289; FraUy v. Sparks, 2 Pars. 40; Lemon v. Reidel, 1 Lane. L. Rev. Sel. Eq. Cas. 232. 3, 4 York Legal Record, 164; Cohen v. ""Lancaster v. Birsh, 1 Lane. L. Rev. Plymouth, 7 Kulp, 101; Mayor v. 209. Mason, 4 Dall. (Pa.) 26«; City use of '^'Bolivar v. Coulter, 10 Pa. Dist. R. FaArmount Park v. Junker, 9 Pa. Dist. 171. R. 673; Philadelphia v. McCaffrey, 2 '^* Com. v. Diffenbaugh, 19 Lane. L. Ashm. (Pa.) 164; O'Malia v. Com. 4 Rev. 19. O. P. Rep. 172. ""> Com. v. Borden, 61 Pa. 272. '^ Bell V. Com. 1 Montg. Co. L. Rep. ™ B off man v. Com. 123 Pa. 75, 16 177. Atl. 609; Com. v. Burns, 17 Lane. L. '^Byers v. Com. 42 Pa. 89. Rev. 171. *» Com. v. Dukeha/rt, 17 Pa. Super. Ct. CHAPTER XXXII. PENAL ACTIONS— CONTINUED. 762. Habeas corpus. 763. Certiorari. 764. Allowance. 765. Effect of appealing. 766. Where no judgment passed. 767. Issuing. 768. Consideration of case. 769. Appeals. 770. Under act of 1876. 771. Where taken. 772. Time of appealing. 773. Allowance of appeal. 774. Allowance nunc pro tunc. 775. Application for allowance. 776. Striking off appeals. 777. Mandamus to justice. 778. Proceedings on appeal. 779. Appeals under the act of 1881. 780. Appeals to the superior and supreme courts. 762. Habeas corpus. — A defendant summarily convicted or ad- judged to pay a penalty directed by the statute or ordinance may be discharged on habeas corpus, when no appeal has been taken or writ of certiorari issued. This remedy is not to be invoked to release from the sentence of a court of competent jurisdiction, but it is proper if there was no power to hear and determine the proceeding.^ And the prisoner may be discharged where the record is fatally defective.^ It has been held that the record of the aldermen is not conclusive as to the truth of its contents on habeas corpus, but the whole subject is opened on the hearing.^ 763. Certiorari.— The act of March 20, 1810,* provided for the is- suance of the writ of certiorari directed to the justice of the peace in ' Com. V. May, 24 Pa. Co. Ct. 646 ; ' Com. esc rel. Hanlon v. Bill, 3 Pa. Com. V. Soott, 8 Pa. Diat. R. 367; Com. Dist. R. 216, 12 Pa. Co. Ct. 569, 23 ex rel. Steward v. Irimn, 1 Clark (Pa.) Pittsb. L. J. N. S. 357; Com. v. King, 408; Com. ex rel. Davis v. Leahy, 1 2 Kulp, 386. Watts, 66, 26 Am. Dec. 37. In Com. v. ' Com. ex rel. Joseph v. M'Keagy, 1 Einter, 1 Wilcox Rep. 3, the habeas cor- Ashm. (Pa.) 248. pus and certiorari were argued together. *5 Smith's Laws, 161, § 21. For 537 568 CRIMINAL AND PENAL PROCEDURE. [chap, xxxii. o.ivU actions upon special allowance. By the amending act of 1855, the requirement of an allocatur was abrogated.'' The Constitution of 1874 made provision for the issuance of the writ to justices and other inferior courts not of record. "The judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace and other inferior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done."® The act of 1810 related to civil, and not to penal, proceedings, and the limitation therein that the writ be issued within twenty days is not applicable to the latter class of cases,'' and the certiorari may be taken out in proceedings based on penal statutes or ordinances, though a greater period than twenty days has elapsed.* 764. Allowance. — Since the act of 1855 no special allowance is nec- essary to take out the certiorari to the proceedings of the justice, or other inferior court not of record, given like jurisdiction.® For the necessity of a special allocatur prior to 1810, see Com. v. Chel- tenham & W. G. Tump. Co.^° But where the court is a special one, created by statute or cliarter, proceedings will not come within the meaning of the act of 1855, and a special allocatur must be obtained." 765. Effect of appealing.— The writ is allowable notwithstanding a remedy by appeal has been supplied by the act of 1876,^^ though both an appeal and a certiorari cannot be taken in the same proceed- ings.'* But mere entry of bail for an appeal, which was of no avail because not allowed by the act of assembly, will not prevent the issu- ance of the writ of certiorari.' * power prior to 1810, see Pennsylvania Record, 61, 3 Lack. Jur. 133 ; Edwardn- V. Eirkpatrick, Addison (Pa.) 193, ville v. Rice, 7 Kulp, 432, 12 Lane. L. note. Rev. 110: Re Delaware County Tump. ' Act April 26, 1855, P. L. 304, § 2. Roa4, 4 Pa. Co. Ct. 101 ; Com. v. John- ' Pa. Const. 1874, art. 5, § 10. ston, 1 Pa. Co. Ct. 22, 16 W. N. C. 349, ^Caughey v. Pittsburg, 12 Serg. & R. 33 Pittsb. L. J. 83; Com. v. Wolf (No. 53; Com. ew rel. Johnson v. Betts, 76 1) 19 Lane. L. Rev. 90. See contra, Pa. 465. Com. v. Mattern, 24 Pa. Co. Ct. 655 ' Lehighton v. Roth, 21 Pa. Co. Ct. 63, (though it is not clear whether this de- 7 Pa. Dist. R. 426 ; Wilcox v. Enoxville, cision was based on this exception ) . 12 Pa. Co. Ct. 641, 2 Pa. Dist. R. 721; »° 2 Binn. 257. Pittsburg v. Madden, 3 Pa. Dist. R. 771, " Wilkes-Barre v. Kosek, 1 Kulp, 454; 14 Pa. Co. Ct. 120. 24 Pittsb. L. J. N. Com. v. De Lacey, 3 Law Times, N. S. S. 283 ; Wilt v. Philadelphia & L. Tump. 225. See Ruhlman v. Com. 5 Binn. 24. Co. 1 Brewst. (Pa.) 411; Com. v. Bard, "West Pittston v. Dymond, 8 Kulp, 10 Lane. Bar, 75. In Com. v. Fiegle, 2 12. Phila. 215, it was said that the writ " Wilcox v. Knoxville, 12 Pa. Co. Ct. should be issued within the time pre- 641, 2 Pa. Dist. R. 721 ; Com. v. Johns- scribed. ton, 16 W. N. C. 349, 1 Pa. Co. Ct. 22, " Crim V. Reinbold, 3 Pa. Dist. R. 33 Pittsb. L. J. 83. 668, 13 Pa. Co. Ct. 545, 7 York Legal "Com. v. Fiegle. 2 Phila. 215; Le- g§ 766-769] PENAL ACTIONS. 669 766. Where no judgment passed. — The certiorari will not be de- feated merely because the record does not show the passing of a judg- ment.*" 767. Issuing. — The certiorari to review the proceedings is issued by the court of common pleas. There is no jurisdiction in the court of quarter sessions to so review.*® When issued, it is the duty of the justice to send up every part of the record, including the complaint, warrant, and a full record of all the proceedings had by an.d before him." 768. Consideration of case. — In the consideration of the case, every presumption is to be made in favor of the regularity of the proceed- ings,'® and, ordinarily, only such matters will be examined as have been excepted to ;*® though, even if not excepted to, the court may reverse where the record is plainly defective.^" The court will deter- mine whether the justice had jurisdiction of the action and the par- ties;"* but if this appears, it will not reverse for a mere technical objection to the form of the record.^^ It will set aside the proceed- ings, where the record is irregiilar f^ but the court will not go beyond the record to examine the merits of the case ;^* nor will this rule be varied from because the magistrate first furnished the defendant with a copy of the record, which was defective, and thus led him to take a writ of certiorari instead of an appeal.^^ The court will not consider depositions to impeach the record and show that the names of the parties were changed after judgment,^^ or to show that evi- dence as returned is not such as was given at the hearing.^'' 769. Appeals. — Prior to the act of 1876 an appeal could be allowed only when statutory provision was made therefor,^* and when such was ineffectual, the taking of it was no bar to the suing out of a Mghton v. Both, 21 Pa. Co. Ct. 63, 7 Pa. ^ Com. ex rel. Seioichley v. Challis, 8 Dist. R. 426; Wilcox v. Knoxville, 12 Pa. Super. Ct. 130. Pa. Co. Ct. 641, 2 Pa. Dist. R. 721. ^ Com. v. Clwuss, 5 Pa. Dist. R. 658. ^^ Bolivar v. Coulter, 10 Pa. Dist. R. 18 Pa. Co. Ct. 381, 5 Northampton Co. 171; Com. v. Ferree, 6 Pa. Diat. R. 639, Rep. 278. 20 Pa. Co. Ct. 87, 28 Pittsb. L. J. N. S. " Com. v. Oakdale Mfg. Co. 6 Pa. 118, 1 Docket, 98. Dist. R. 429, 28 Pittsb. L. J. 9; Den- " Evans v. Com. 5 Pa. Co. Ct. 362. gin v. Com. 3 Pa. Co. Ct. 654 ; Com. v. " Com. V. Schall, 5 York Legal Ree- Hardy, 1 Ashm. ( Pa. ) 410 ; Com. v. ord, 187. Bard, 10 Lane. Bar, 75. " South Bethlehem v. Connolly, 3 ^ Com. v. Schall, 5 York Legal Rec- Montg. Co. L. Rep. 142, 1 Northampton ord, 187. Co. Itep. 23. ™ Lancaster v. Hirsh, 1 Lane. L. Rev. "Com. V. Evans, 29 Phila. Leg. Int. 209. 133. ''Com. V. Hardy, 1 Ashm. (Pa.) ^10. " Com. V. Cane, 2 Pars. Sel. Eq. Cas. ™ Philadelphia v. Campbell, 11 Phila. 265, 1 Am. L. J. 246. 163, 33 Phila. Leg. Int. 12; Hammus v. " Com. V. lAller, 12 Lane. Bar, 188. Mock, 2 Legal Opinion, 135. 570 CRIMINAL AND PENAL PROCEDURE. [chap. xxxn. writ of certiorari.** In case of penalties made recoverable, as debts of like amount, an appeal lay to the common pleas, where the judg- ment was for a sum greater than $5.33, under the act of ISIO.*" As in the case of civil actions, the entry of bail and an affidavit were required, and an appeal taken without so doing was stricken off.*^ 770. Under act of 1876.— By the Constitution of 1874 it was pro- vided: "In all cases of summary conviction in this commonwealth, or of judgment in suit for a penalty before a magistrate or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court, or judge thereof, upon cause shown."^* The constitutional provision was in- tended to cover all cases whether appeals had been allowed therein prior to the enactment, or whether they had not.** This was followed by the act of April 17, 1876, which directed: "In all cases of summary conviction in this commonwealth before a magistrate or court not of record, either party may, within five days after such conviction, appeal to the court of quarter sessions of the county in which such magistrate shall reside, or court not of rec- ord shall be held, iipon allowance of the said court of quarter sessions, or any judge thereof upon cause shown; and either party may also appeal from the judgment of a magistrate or a court not of record, in a suit for a penalty, to the court of common picas of the county in which said judgment shall be rendered, upon allowance of said court or any judge thereof, upon cause shown : Provided, That all appeals from summary conviction and judgments for penalties shall be upon such terms as to payment of costs and entering bail as the court or judge allowing the appeal shall direct."** Eor a number of years, appeals were taken as directed by the act of 1876 in case of summary convictions, or where the judgment was for a penalty under a statute or an ordinance ; and a number of cases are reported from the appellate courts, as well as from the lower courts, in which appeals were considered for both classes of cases. In 1897 it was first decided by a lower court, though such was intimated before, that this legislation was unconstitutional in so far as it allows ^ Com. V. Fieqle, 2 Phila. 215. =^ Pa. Const. 1874, art. 5, § 14. '" Act March 20, 1810, 3 Smith's Laws, "Corn, ex rel. Allegheny County v. 121, § 8; Com. use of Rogers v. Bennett, McCann, 174 Pa. 19, 34 Atl. 299. See 16 Serg. & R. 243; Com. v. Levy, 7 contra, Com. v. Brurmer, 3 Pa. Co. Ct. Phlla. 303 ; Northern Liberties v. 28, 2 Lehigh Valley L. R. 377. Crocks, Purdon's Dig. 10th ed. 849. See =*Act of April 17, 1876, P. L. 29, § 1. this case for manner of trial on appeal. This legislation repeals the act of 1871, " Oolumhia v. Patton, 5 Lane. Bar, relating to Wilkesbarre. Wilkesbarre v. No. 2. Stewart, 16 Pa. Super. Ct. 347. g§ 771, 772.1 PENAL ACTIONS. 571 appeals in case of judgments for penalties, on the ground of defect in the title of the act.*" The question has not been passed upon by the appellate coiirts, but the act was said to apply to judgments for pen- alties in a case in which the constitutionality of the act was not raised.^* 771. Where taken. — By the act of 1876 appeals from summary con- victions are to be taken to the court of quarter sessions.'^ But ap- peals from proceedings for penalties imposed for the violation of or- dinances are not returnable to the quarter sessions.^* Where the judgment is for a penalty recoverable as debts, though in the name of the commonwealth, the appeal must be to the common pleas. ^* So, an appeal from a judgment imposing a penalty for violation of a borough ordinance must be to the common pleas.*" Such proceed- ings have been held not to be within the act of 1876, that legislation being unconstitutional as to its provisions for such cases, and the rules applicable to civil suits must control. Therefore, when the penalty is of less amount than $5.33, no appeal can be had.** If an appeal be talcen to the wrong court in case of summary con- viction, and no request for the allowance of an appeal to the proper court be made until the first is quashed, and five days have elapsed, an allocatur will not be gTanted.*^ 772. Time of appealing. — By the act of 1876 appeals from sum- mary convictions must be taken witbin five days.** But where the " Mauoh Chunk v. Betzler, 19 Pa. Co. panies, recoverable as a debt, and an in- Ct. 27, 6 Pa. Dist. R. 330, 10 York Le- dictment framed thereon, gal Record, 151, 5 Northampton Co. Rep. ™ Com. v. Keane, 21 Pa. Co. Ct. 327; 354; LehigJiton v. Roth, 21 Pa. Co. Ct. Cumberland County v. Deckman, 12 Pa. 63, 7 Pa. Dist. R. 426; Lesh v. Newton Co. Ct. 340; Com. v. Clark, 2 W. N. C. £ S. Turnp. Co. 3 Lack. Jur. 69; Com. 630. The act of 1876 was not consid- V. Smft Bros. 17 Pa. Co. Ct. 95. ered in this ease. "Com. ex rel. Allegheny County v. " Scranton v. Frothingham, 5 Pa. McCcmn, 174 Pa. 19, 34 Atl. 299. Dist. R. 639, 2 Lack. Legal News, 247; " Com. V. Rosenthal, 3 Pa. Co. Ct. 26. Williamsport v. Williamsport Water But see Com. v. Scott, 28 Pittsb. L. J. Co. 7 Pa. Dist. R. 206; Com. v. Clark, 446. 2 W. N. C. 630. "Com. v. Clark (No. 1) 14 Lane. L. '^Lehighton v. Roth, 21 Pa. Co. Ct. Rev. 41; Com. v. Clark (No. 2) 14 Lane. 63, 7 Pa. Dist. R. 426; Mauch Chunk L. Rev. 42. In Com. v. Johnston, 1 v. Betzler, 19 Pa. Co. Ct. 27, 6 Pa. Dist. Pa. Co. Ct. 22, 16 W. N. C. 349, 33 R. 330, 10 York Legal Record, 151, 5 Pittsb. L. J. 83, it was held that an ap- Northampton Co. Rep. 354. In Car- peal from the judgment for violation of lisle v. Lifter, 16 Pa. Co. Ct. 85, 4 Pa. an ordinance to the quarter sessions Dist. R. 230, the constitutionality of the should be allowed, on the ground that act of 1876 was not considered, and an it was a summary conviction. In Com. appeal under it allowed where the V. DiffenbOAigh, 5 Lane. L. Rev. 346, an judgment was for $5. appeal was taken to the quarter ses- " Com. v. Rosenthal, 3 Pa. Co. Ct. sions, from a judgment for a statutory 669. penalty for fraud on turnpike com- " Oranahan's Appeal, 4 Kulp, 75; 572 CRIMINAL AND PENAL PROCEDURE. [chap xxxil penalty is imposed under a statute which makes it recoverable as an action for debt, and the rules as to civil cases apply, it must be taken within twenty days,** and the rules applicable to appeals in civil suits govern in case of a judgment for the penalty imposed for the violation of a borough ordinance.*^ 773. Allowance of appeal. — The Constitution of Pennsylvania pro- vides for the special allowance of appeals, both in case of summary conviction and judgment for penalties.*® The allocatur must be granted by the judge of the court to which the appeal is taken.*'' And there is no necessity to apply to the justice to grant the appeal where this leave is given.** The requirement of this special allowance is not unconstitutional as interfering with trial by jury, as it existed theretofore.*^ If leave be not granted, the appeal will be stricken off on application to the court.^" The same procedxire is required for Wilkesbarre, the act of 1876 repealing that of 1871.®^ 774. Allowance nunc pro tunc. — Though no allowance has been given by the court, under proper circumstances, the consent may be granted nunc pro tunc.^^ But this privilege will only be accorded on cause shown.°* So, it has been refused where the complaint was that the judgment was not supported by the testimony;^* where the absence of material witnesses was alleged, when it did not appear that a continuance was asked for and refused ;^^ where the appeal was taken to the wrong court and the application to the proper one was not promptly made after objection.^" ]3ut it may be allowed where no objection has been made to the failure to secure a special allow- Com. V. Diffenbaugh, 5 Lane. L. Rev. S. 347; Mahanoy City v. Bissell, 9 Pa. 346; Com. v. Sassaman, 2 Del. Co. Rep. Co. Ct. 469; McOuire v. Shenandoah, 333; Com. v. Rosenthal, 3 Pa. Co. Ct. 109 Pa. 613; Com. v. Eichenierg, 140 669. Pa. 158, 21 Atl. 258 ; Com. ex rel. Thorn- " Com. V. Swift Bros. 17 Pa. Co. Ct. ton v. Courtney, 174 Pa. 23, 34 Atl. 300; 95; Com. v. Brunner, 3 Pa. Co. Ct. 28, Com. ex rel. Murphy v. Davison, 9 2 Lehigh Valley L. R. 377; Lesh v. New- Kulp, 491. ton cC 8. Tump. Co. 3 Lack. Jur. 69; '^Wilhes Ba/rre v. Stewart, 16 Pa. Com. V. Saeger, 22 Pa. Co. Ct. 169; Super. Ct. 347. Com. V. Sassaman, 2 Del. Co. Rep. 333. " Lloyd v. Monroe, 2 Kulp, 25. "Lehighton v. Roth, 21 Pa. Co. Ct. "Board of Health v. Decker, 3 Pa. 63, 7 Pa. Dist. P.. 426; Mauch Chunk Dist. R. 362, 14 Pa. Co. Ct. 117, 3 Lack. V. Betzler, 19 Pa. Co. Ct. 27, 6 Pa. Dist. Jur. 173; Com. v. Sassaman, 2 Del. Co. R. 330, 5 Northainpton Co. Rep. 354, 10 Rep. 333 ; Board of Health v. Crest Fair York Legal Record, 151. Dairy Co. 3 Pa. Dist. 363, 14 Pa. Co. Ct. "Pa. Const, art. 5, § 14. 119. "Com. V. Troxell, 6 Kulp, 160. "Board of Health v. Crest Fair Dairy " Com. V. Deardorff, 5 York Legal Co. 14 Pa. Co. Ct. 119, 3 Pa. Dist. R. R«cord, 63. 363. "Com. ex rel. Allegheny County v. "Thompson v. Preston, 5 Pa. Super. McCarm, 174 Pa. 19, 34 Atl. 299. Ct. 154, 28 Pittsb. L. J. N. S. 74. ■^ Com. V. Sassamam, 2 Del. Co. Rep. " Com. v. Rosenthal, 3 Pa. Co. Ct 333; Com. v. Qibson, 25 Pittsb. L. J. N. 669. § 775] PENAL ACTIONS. 578 ance;"'' or where the appeal was perfected within the time provided for app jals in actions of debts, and cause is shown f^ or to prevent injustice f^ or where the unconstitutionality of the act is alleged.®" 775. Application for allowarce. — The method of proceeding to se- cure the consent of the court to the allowance of appeal depends on lo- cal practice, and is often regulated by rules of eourt.*^ It has been said that reasonable notice should be given to the other party of the intention to apply, and a brief statement of the errors alleged should be submitted to the court at the time of making the application.®^ The matter should be brought before the court by a petition for leave to appeal.®^ The application must deny the allegations of the com- plaint.®* In passing upon it, the judge is not required to examine the evidence.®^ Cause must be shown before the allocatur will be granted. It must appear that the defendant has a probable defense in law or fact.®® And it will not be granted to bring up the merits of the case for review, if ample opportunity was given the defendant to be heard, and there is nothing to indicate corruption or oppression, unless some legal ques- tion is involved, or some after-discovered testimony appear, that would authorize a new trial.®^ !N"or will it be allowed to reopen the case on its merits, where judgment by default has been entered and there is no allegation that the defendant was deprived of the oppor- tunity to make a defense, and no excuse is offered for the failure to Pippear.®* But it will be granted where the facts could not sustain the conviction ;®® or where the justice is mistaken as to the law ;'"' or where there is doubt as to the validity of the law which is the basis of the proceedings.''^ It has been said that the right should not be de- - nied where there is any substantial dispute as to testimony, and the appellant files an affidavit that the appeal is not for delay, and pays or secures the payment of the costs which have accrued or shall ac- " Com. V. Shoivalter, 15 Lane. L. Rev. " Com. v. Eeane, 21 Pa. Co. Ct. 327. 78. See Wilkes-Barre v. Stewart, 16 " Mahanoy City v. Bissell, 9 Pa. Co. Pa. Super. Ct. 347. Ct. 469. ™ Com. V. SiDift Bros. 17 Pa. Co. Ct. •' Com. v. Blank, 22 Pa. Co. Ct. 378, 95. 6 Northampton Co. Eep. 374; Thompson ^'Lesh V. Newton & 8. Tump. Co. 3 v. Preston, 5 Pa. Super. Ct. 154, 28 Lack. Jur. 69. Pittsb. L. J. N. S. 74. " Com. V. Saeger, 22 Pa. Co. Ct. 169. " Com. ex rel. Allegheny County v. " Com. V. Blank, 22 Pa. Co. Ct. 378, Menjou, 174 Pa. 25, 34 Atl. 301. 6 Northampton Co. Rep. 374. »' Com. v. Ferree, 6 Pa. Dist. R. 639, «= Com. V. Johnston, 1 Pa. Co. Ct. 22, 20 Pa. Co. Ct. 87, 28 Pittsb. L. J. N. S. 16 W. N. C. 349, 33 Pittsb. L. J. 83. 118, 1 Doclcet, 98. " Com. V. Eichenhurg, 140 Pa. 158, ™ Com. v. Alexander, 2 Chester Co. 21 Atl. 258. Rep. 267. " Com. V. Apple, 25 Pittsb. L. J. N. " Com. v. Saeger, 22 Pa. Co. Ct. 169. S. 226. 574 CRIMINAL AND PENAL PROCEDURE. [chap, xxxii. crue.''* The whole matter rests, however, in the sound discretion of the court. ''^ 776. Striking off appeals. — Appeals which have been improvidently allowed will be struck off on application to the court.''* And, this will be done where it has not been specially allowed by the court.''® But it is not ground to quash the appeal, that the court has failed to fix a time for filing the recognizance.''* Even if it has been taken without allowance, the application to strike the same off must be made without delay. Otherwise, the motion will be refused, or the appeal allowed nunc pro tunc.'''' 777. Mandamus to juEtice. — If the court has granted an allocatur, it may enforce the order made by mandamus to the justice who tried the case.''* But mandamus will not lie to compel the justice to allow an appeal from a judgment for a penalty, where the same has not been specially allowed by the court or a judge thereof; and an answer alleging this fact is sufficient.''* 778. Proceedings on appeal.— Where an appeal has been taken from a judgment in summary proceedings, the court of quarter sessions summarily tries the case, as in surety of the peace and desertion pro- ceedings. The act of 1876 gave no right to a jury trial.®" The trial of such appeals by the court is final, and neither the commonwealth nor the prosecutor has the right to file exceptions or a bill of excep- tions.®^ Where the appeal is from a judgment for a penalty, the right to a jury trial exists as in appeals for civil cases,®^ and likewise, in case of appeals from judgments for the violation of borough ordinances a jury trial is also had.®* ''-Com. V. Keane, 21 Pa. Co. Ct. 327. Shenandoah, 109 Pa. 613; Com. ex rel. " Com. ex rel. Allegheny County v. Murphy v. Davison, 9 Kulp, 491. Tlendley, 7 Pa. Super. Ct. 356, 28 Pittsb. ™ Com. v. Waldman, 140 Pa. 89, 11 L. J. N. S. 401. L. R. A. 563, 21 Atl. 248; Com. v. For- "Com. V. Blank, 22 Pa. Co. Ct. 378, rest, 3 Pa. Dist. R. 797, Reversed on 6 Northampton Co. Rep. 374. other grounds in 170 Pa. 40, 29 L. R. "Com. V. Sassaman, 2 Del. Co. Rep. A. 365, 32 Atl. 652; Com. v. Clark (No. 333; Com. v. Gibcon, 25 Pittsb. L. J. 1) 14 Lane. L. Rev. 41. This case was N. S. 347. subsequently dischara;ed on the ground ™ Com. V. Deardorff, 5 York Legal that the appeal should have been taken Record, 63. to the common pleas, in 14 Lane. L. " Lesh V. Newton £ 8. Tump. Co. 3 Rev. 42. In Com. v. Diffenhaugh, 5 Laelc. Jur. 69, following the rule in Lane. L. Rev. 346, an indictment was civil cases. Delaware & H. Canal Co. framed on appeal. V. Loftus, 71 Pa. 418; Cameron v. Mont- "-Com. v. Forrest, 3 Pa. Dist. R. 707, nomery, 13 Serg. & R. 128. But see reversed on other grounds in 170 Pa. Wilkes-Barre v. Stewart, 16 Pa. Super. 40, 29 L. R. A. 365, 32 Atl. 652. Ct. 347. "Com. ex rel. Allegheny County v, ™ Bowman v. Bvrhe, 6 Kulp, 228. McCann, 174 Pa. 19, .34 Atl. 299. " Com. ex rel. Thornton v. Courtney, " Williamsport v. Williamsport Wa- ll i. Pa. 23, 34 Atl. 300; McOuire v. ter Co. 7 Pa. Dist. R. 206. §§ 779, 780] PENAL ACTIONS. 578 A case stated may be framed on a pending proceeding,'* but if this is done, it must set forth all of tha essential facts.'^ To save the right of appeal in such case, a reservation to that effect must appear in the case stated.** 779. Appeals under the act of 1881. — In case of conviction of mali- cious trespass under the act of 1881, the record must show a sentence, the imposition of a fine, the refusal to pay the same, and the entry into a recognizance to appear at the next court of quarter sessions.*^ Upon return of the proceedings, the defendants must be indicted and the case tried before a jury de novo.^^ 780. Appeals to the superior and supreme courts. — In case of sum- mary convictions, an appeal Avill lie from the court of quarter ses- sions.®® For matters considei-ed on appeal, see Com. v. Gillespie.^" In cases of judgments for penalties directed to be instituted in the name of the commonwealth, the proceeding may be reviewed by the appellate court, since such cases are not civil within the meaning of the act of 1810, which prohibited a review.®^ Where the penalty is to be recovered in the name of the informer for himself, it comes within the act of 1810 as a civil proceeding, and no review is allowable, by writ of certiorari directed from the su- preme court to the justice, this being forbidden by § 24 of the act of 1810.'^ So, the action of the court of common pleas upon the cer- tiorari removing the proceedings before a justice,^* or before a bur- gess,'** to recover the penalty imposed by an ordinance is final as within the meaning of § 22 of the act of 1810. To be distinguished are cases in which the proceeding was summary in form, though for the violation of borough ordinances.®^ "Lower Merion Twp. v. Spring- Com. v. Cane, 2 Pars. Sel. Eq. Gas. 265, field Water Co. 17 Montg. Co. L. Rep. 1 Am. L. J. 246 ; Com. eos ret Wilson v. 166. H Eogs, 10 Serg. & E,. 393; Johnston '^Newcastle v. Cutler, 15 Pa. Super, v. Com. 22 Pa. 102; Van Swartovy v. Ct. 612; Com. v. Sckollenberger, 153 Com. 24 Pa. 131; Com. v. Borden, 61 Pa. 625, 25 Atl. 999. Pa. 272; Scully v. Com. 35 Pa. 511; "° Com.- V. Callahan, 153 Pa. 625, 25 Buhlman v. Com. 5 Biun. 24. Held, Atl. 1000. writ of error tcould not lie, but that " Hoffman v. Com. 123 Pa. 75, 16 Atl. certiorari would. Now all writs of er- 609; Com. v. Burns, 17 Lane. L. Kev. ror are called appeals. 171. '^Spicer v. Rees, 5 Rawle, 119, 28 " Com. V. ClcrJc, 3 Pa. Super. Ct. 141. Am. Dec. 648; Frick v. Fatten, 2 Rawle, '"Com. V. Forrest, 170 Pa. 40, 29 L. 20; act March 20, 1810, 5 Smith's Laws, R. A. 365, 32 Atl. 652; Com. v. Gelbert, 161, § 24. 170 Pa. 426, 32 Atl. 1091; Com. v. " Mahanoy City v. Wadlinger, 142 Phelps, 170 Pa. 430, 32 Atl. 1092. Pa. 308, 21 Atl. 823. '" 146 Pa. 546, 23 Atl. 393. »* Golwyn v. Tariottom, 1 Pa. Super. " Com. eao rel. Johnson v. Betts, 76 Ct. 179, 38 W. N. C. 38. Pa. 465; Com. v. Davison, 11 Pa. Super. ''Com. v. Thompson, 110 Pa. 297, 1 Ct. 130; Com. v. Burkhart, 23 Pa. 521; Atl. 375. See also Reid v. Wood, 102 576 CRIMINAL AND PENAL PROCEDURE. [chap, xxxa In'o appeal lies for the refusal of the lower cjourt to grant a special allocatur to appeal from the justice. If the proceedings be removed to the appellate court in such cases, it will be treated as a certiorari, and the regularity of the record alone considered.*® The sajne is true where the error alleged is the allowance of an appeal nunc pro tunc.^'' A certiorari in which the name of the parties are not as they ap- pear upon the record will be treated as amended by the appellate coilrt.®* Pa. 312. In Peet v. Pittslurgh, 96 Pa. 25 Atl. 896; Com. v. Eichenlurg, 140 218, the appeal was from the affirmance Pa. 158, 21 Atl. 258. of an appeal from the mayor. Not be- "' Com. v. Reiser, 147 Pa. 342, 23 Atl. ing a certiorari, the act of the lower 454. court was not conclusive. "* Reid v. Wood, 102 Pa. 312. In " Thompson v. Preston, 5 Pa. Super. Specht v. Com. 24 Pa. 103, the writ was Ct. 154, 28 Pittsb. L. J. N. S. 74; Com. quashed when directed to the common- eoD rel. Allegheny County v. Hendley, wealth, whereas the plaintiff was an in- 7 Pa. Super. Ct. 356, 28 Pittab. L. J. N. dividual who sued for himself and the S. 401; Com. V. Madden, 153 Pa. 627, commonwealth. CHAPTER XXXIII. FORMS. 781. Information. 782. Information for surety of the peace. 783. Information for desertion. 784. Information for search warrant. 785. Complaint before United States Commissioner for breach of the peace. 786. Warrant of justice. 787. Warrant directed to private citizen. 788. Deputation by constable. 789. Return to warrant. 790. Search warrant. 791. Return to search warrant. 792. Warrant of a judge to remove a criminal from one county to another. 793. Recognizance to appear at justice's hearing. 794. Subpoena for justice's hearing. 795. Huipccnn duces tecum. 796. Commitment of prisoners for further examination. 797. Precept for bringing the defendant before the justice out of jail for further hearing. 798. Commitment of witness for not testifying. 799. Attachment for a witness. 800. Recognizance to appear at court. 801. Recognizance of witnesses. 802. Recognizance for the peace and good behavior. 803. Commitment by justice. 804. Discharge by justice after commitment. 805. Discharge of prisonei- from jail. 806. Detainer. 807. Return to court of quarter sessions. 808. Constable's return to court. 809. Bailpiece by clerk of court. 810. Bailpiece by justice. 811. Venire to summon coroner's jury. 812. Oath of coroner's jiuy. 813. Oath of witness at coroner's inquest. 814. Coroner's inquisition. 815. Petition for writ of habeas corpus where detained by commitment. 816. Petition for writ of habeas corpus where not detained by commitment. 817. Return to writ of habeas corpus. 818. Traverse of return. 819. Oath of jury commissioners. 820. Precept for venire for oyer and' terminer. 821. Precept for venire for quarter sessions. Pa. Crim Ploc— 37. 677 678 CRIMINAL AND PENAL PROCEDURE. [chap, xxxin. 822. Venire for grand jury in oyer and terminer and return of sheriflf. S23. Venire for traverse jury in oyer and terminer and return of sheriff. 824. Venire for grand jury in quarter sessions and return of sheriff. S25. Venire for traverse jury in quarter sessions and return of sheriff. 826. Return of jury commissioners and sheriff to writs of venire facias juratorea 827. Oath of foreman of grand jury. 828. Oath of grand jurors. 829. Oath of petit jurors. 830. Oath of jury to try issue of present insanity. 831. Oath of officer in charge of jury. 832. Oath of officer in charge of jury to be kept togetheft 833. Oath of witness before grand jury. 834. Report of grand jury. 835. Criminal information. 836. Presentment of grand jury. 837. Indictment in oyer and terminer. 838. Indictment in quarter sessions. 839. Indictment of a corporation. 840. Bench warrant. 841. Demurrer to indictment. 842. Joinder in demurrer to indictment. 843. Motion to quash indictment. 844. Petition to remove pending indictment to the supreme court. 845. Order on petition. 846. Answer. 847. Petition for change of verue. 848. Petition by indigent person for order for support. 849. Order for citation under the foregoing petition. 850. Final order after hearing. 851. Petition for nolle prosequi. 852. Order for nolle 'prosequi. 853. Petition for continuance. 854. Petition for bill of particulars. 855. Bill of particulars. 856. Plea of not guilty. 857. Joinder of issue. 858. Plea to the jurisdiction. 859. Replication to plea to jurisdiction. 860. Plea of misnomer in abatement. 861. Replication to plea in abatement. 862. Pleas of former acquittal and former conTiction. 863. Plea of former jeopardy. 864. Special pleas in bar. 865. Replication to plea in bar. 866. Demurrer to plea. 867. Joinder in demurrer to plea. 868. Petition for venire facias to summon corporation indicted. 869. Order of court. 870. Venire facias to summon corporation. 871. Return of sheriff. FORMS. exy 872. Appearance and cntiy of plea by corporation. 873. Subpoena. 874. Oath. 875. Affirmation. 870. Oath of witness at trial or hearing. 877. Oath of stenographer. 878. Oath of interpreter. 879. Oath of juror in examination on voir dire 880. Forfeiture of recognizance. 881. Petition to remit forfeited recognizance. 882. Points and answers. 883. Verdict of jury. 884. Special verdict. 885. Motion in arrest of judgment. 686. Motion for new trial. 887. Sentence of death. 888. Mandate of the governor to execute death sentence. 889. Return of sheriff to mandate. 890. Oath of .sheriff. 891. Oath of jurors. 892. Certificate of jurors. 893. Sentence for larceny. 894. Sentence for nuisance. 895. Sentence for fornication and bastardy. 896. Commitment for nonpayment in fornication and bastardy. 897. Sentence for forcible entry and detainer. 898. Sentence for surety of the peace. 899. Sentence for desertion. 900. Bond of indemnity to directors of the poor for fulfilment of sentence in bastardy case. 901. Bond of indemnity to directors of the poor for fulfilment of order in deser- tion case. 902. liecognizance for support of bastard child. 903. Order to destroy gambling device. 904. Sentence prosecutor to pay costs. 905. Commitment to county jail. 906. Commitment to Eastern Penitentiary. 907. Commitment to Pennsylvania Industrial Reformatoiy. 908. Petition of sheriff to transfer insane Inmate. 909. Order of court on petition. 910. Report of commissioners. Sll. Commitment to asylum by court. 912. Comniitment to local hospital for the insane. 913. Petition for discharge under the insolvent laws. 914. Bond for discharge under the insolvent laws. 915. Petition of prosecutor sentenced to pay costs for discharges 916. Order on petition. 917. Petition for leave to discharge under act of 1887. 918. Order of court for discharge under act of 1887. 919. Appeal from taxation of costs. 580 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 020. Appeal and afGdavit. 921. Prsicipe for certiorari on appeal. 922. Recognizance on appeal. 923. Proof of service of appeal to superior court. 924. Writ of error from supreme court. 925. Certificate to record sent up. 926. Petition to make appeal a supersedeas. 927. Order for supersedeas. 928. Cover of paper book. 929. Contents of paper hodk. 930. Assignments of error. 931. Statement of questions involved. 932. Bill of exceptions. 033. Notice of settling bill of exceptions. 934. Certificate of court, where bill of exceptions at common law not sealed. 935. Petition for mandamus to seal a, bill of exceptions. 936. Certificate of opinion of appellate court. 037. Remittitur from appellate court. 938. Form of information or complaint in penal actions. 939. Form of summons. 940. Form of warrant. 941. Capias for swearing. 942. Commitment on conviction. 943. Warrant to levy penalty on conviction. 944. Transcript of record of conviction in summary proceeding. 945. Transcript in action for penalty. 946. Prsecipe for certiorari and affidavit. 947. Writ of certiorari. 948. Return to certiorari. 949. Remittitur to justice. f 950. Petition for special allocatur in summary proceedings. 951. Allowance of appeal. 952. Recognizance on appeal from summary conviction. 953. Application for pardon. 954. Papers accompanying application for pardon. 955. Petition for requisition. 956. Certificate of district attorney. 957. Indorsements on application. 958. Requisition on governor of asylum state. 959. Appointment of agent for the state. 960. Warrant of governor for arrest in Pennsylvania. 961. Certificate of officer that a fugitive from justice was delivered up to the agent of another state. 781. Information. County, | Commonwealth of Pennsylvania. ( Before me, the subscriber, one of the justices of the peace in and §§ 782, 783] FORMS. 681 for said county, personally came A. B., of the borough of , said county and state, who, upon his solemn oath ac- cording to law, deposeth and saith, that C. D., of the said borough, did on the day of , 19 , in the borough of , and in the county aforesaid, commit an assault and bat- tery upon the deponent, A. B., by striking him violently with his fist upon the side of the head, and did then and there beat him, contrary to the act of assembly in such case made and provided. And further the deponent saith not. A. B. Sworn and subscribed before me, the day of , A. D. 19 W. G. K, Justice of the peace. 782. Information for surety of the peace. State of Pennsylvania, | County of . j ' A. B., having been duly sworn, on oath says that C. D., of the county aforesaid, did on the day of , last past, threaten to kill the complainant \_or, "threaten to do complainant grievous bodily liarm"'\, wherefore the complainant haa reason to fear, and does fear, that the said 0. D. will commit the offense so threa-tened, unless he be bound over to keep the peace and appear ac- cording to law. A. B. Sworn and subscribed before me, this day of , A. D. 19 W. G. H., Justice of the peace. 783. Information for desertion. County, ] ss Commonwealth of Pennsylvania, j Before me, the subscriber, one of the justices of the peace in and for said county, personally came A. B., of the borough of , said county and state, who, upon her solemn oath ac- cording to law, deposeth and saith, that the deponent is the lawful wife of C. D., of the borough of , in the county afore- said, and that he, the said C. D., on or about the day of 683 CRIMINAL AND PENAL PROCEDURE. [chap, xxxui. , 19 , wilfully deserted and separated himself from her and their children, without reasonable cause, and has since persisted in such desertion, and neglects to maintain deponent and said chil- dren, contrary to the act of assembly in such case made and provided. And further the deponent saith not. A.B. Sworn and subscribed before me, the day of , A. D. 19 W. G. H., Justice of the peace. .1 784. Information for search warrant. State of Pennsylvania, ".}' OoTTNTr OF Before me, a justice of the peace in and for said county and state, personally appeared A. B., of the borough of , county and state aforesaid, who, being duly qualified according to law, de- poses and says that on or about the day of , 19 , the following goods and chattels, to wit : ^enumerating ihem'] , were, by some person or persons, feloniously stolen, taken, and carried away out of the dwelling house of the said A. B. \_or, as the case may be'], and that the said goods and chattels, as the complainant has just and reasonable cause to suspect and believe, and does suspect and be- lieve [^stating grounds of suspicion and helief], are concealed in the house of one C. D., in the borough aforesaid. A. B. Sworn and subscribed the day and 1 year aforesaid, before me, \ Justice of the peace. 785. Complaint before the Tnited States commissioner for breach of the peace. United States of Amebica, Easteen Disteiot of Pennsylvania. '' ' Before me, S. L. Y., a commissioner of the circuit court in and for said district, personally came A. B., who, being duly sworn, upon his oath says that he has just cause to fear, and does fear, that C. D., of said district, will [here state the violence threatened], contrary to §§ 786, 787] FORMS. 583 the Constitution and laws of tke IJnited States, and against the peace and dignity thereof. A. B. Subscribed and sworn to before me, this ) day of , 19 . ) S. L. Y., Commissioner United States circuit court 786. Warrant of justice. COTJNTY, ss.: Commonwealth of Pennsylvania; To A. B., constable; Greeting: Whereas, C. D., of the borough of , in the county afore- said, hath this day made information and complaint on his solemn oath, before W. G. H., a justice of the peace, in and for the county of , charging E. F., of the said borough, with the larceny of one gold watch of the value of $20, of the property of him, the said C. D., contrary to the act of general assembly in such cases made and provided. These are, therefore, to command you to take the said E. F. and bring him forthwith before said justice to answer the said complaint, and further to be dealt with according to law. Given under the hand and seal of the said justice in the county aforesaid, this day of , a. d. 19 . W. G. H., [seal.] Justice of the peace. 787. Warrant directed to private citizen. County of ss.: The commonwealth of Pennsylvania; To G. H., of the township of , in the said county, blacksmith, who receives and undertakes to execute this warrant; Greeting: You are hereby commanded to take the body of C. C, of the town- ship of , in the county aforesaid, shoemaker, if he be found in the said county, and bring him before me, J. P., a justice of the peace in and for the said connty, to answer the commonwealth on a charge, founded on the oath of A. B., saddler, of the township and county aforesaid, for having, at the township and county afore- said, on the day of , etc. Ihere specify the offense']. 684 CRIMINAL AND PENAL PROCEDURE. [chap, xxxui. and further to be dealt with according to law. And for so doing, this shall be your warrant Witness the said J. P., who hath hereunto set his hand and seal, at, etc., the day of , etc. J. P. [SEAI-.] Justice of the peace. 788. Deputation by constable. CotTNTY, SS. I, p. S., the constable to whom the within warrant is directed, hereby depute and authorize 0. S., of the township of , blacksmith, to execute the within warrant. Witness my hand and seal, at, etc., on the day , etc. P. S., [seal.] Constable. 789. Return to warrant. I have taken the said defendant, and herewith bring him before the said justice \_or alderman^ as within I was commanded. So an- swers A.B., Constable. >^ (Or that defendant cannot be found*) 790. Search warrant. County, ss. The commonwealth of Pennsylvania; To J. S., constable of , etc. : [l. S.J W^hereas, information and complaint have this day been made to E. P., one of our justices of the peace in and for the said county, upon the oath of A. B., that the following articles, to wit, [^here in- sert the articles and their value'] were lately feloniously taken, stol- en, and carried away from his house, at the township aforesaid, and that there is just cause to suspect that the said stolen goods, or some part thereof, are concealed in the house of C. D., of the said town- ship, blacksmith. These are, therefore, to command you and every of you, to make diligent search in the daytime, in the house of the said C. D., for the said stolen goods, and if you find the same, or any part thereof, that then you secure the said stolen goods, and bring the said §§ 791, 792] FORMS. 685 goods, and also the person or persons in whose custody you find the same, before our said justice of the peace, to be examined concerning the premises, and further to be dealt with according to law. Witness the said E. F., who hath hereto set his hand and seal. E. F, [seal.] 791. Betum to search warrant. Pursuant to the within warrant, I made search for the goods there- in described at the place mentioned, and found the following, to wit [^enumerating articles^ ; which said goods, so found, together with the body of C. D., I have in custody. [Or'], Pursuant to the within warrant, I made search for the goods therein described, at the place mentioned, but could not find any of them. So answers A. B., Constable of the first ward of borough. 792. Warrant of a judge to remove a criminal from one county to another. CoUNTYj ss. The commonwealth of Pennsylvania ; To P. K., sheriff of the county of ; Greeting: [sEAL.J Whereas, E. P., late of the county of , in the said commonwealth, laborer, is now imprisoned in the common gaol of the said county of , committed on the warrant of W. J., a justice of the peace in and for the said county of , and charged on the oath of A. B., with having on, etc., at, etc., in the said county of , committed a robbery upon him, the said A. B., and with having then and there feloniously stolen and taken from the said A. B., $30 in silver coin, etc., the property of the said A. B. These are, therefore, to authorize and require you, P. K., sheriff aforesaid, to take the said E. P., and convey and conduct him to the common gaol of the said county of , and to deliver him into the custody of the keeper of the said gaol, to be kept in cus- tody, to answer the aforesaid charge, and until he be thence delivered according to law. In witness whereof I, C. H., president of the court of common pleas, for the county of , have hereunto set my hand and seal, at , the day of , 19 . C. H. 58J CRIMINAL AND PENAL PROCEDUKE. [chap, xxxiu. 793. Recognizance to appear at justice's hearing. We, A. B., the -within defendant, and C. D., bail of A. B., county, acknowledge to owe and be indebted to the com- monwealth of Pennsylvania, for the use of the county of , in the sum of one hundred dollars, to be levied of our goods and chat- tels, lands and tenements, upon condition that A. B. be and appear in his proper person, at the hearing before W. Or. BE., justice of the peace, at his office, on the day of , 19 , at o'clock A. M., then and there to answer such things as shall be objected against said defendant on behalf of the commonwealth, and not de- part without leave, then this recognizance to be void, otherwise to be and remain in full force and virtue. A. B. CD. Taken and acknowledged before me, this 7 day of , 19 . I W. G. H., Justice of the peace. 794. Subpoena for justice's hearing. The commonwealth of Pennsylvania ; To A. B. and 0. D. : We command you that, setting aside all business and excuses what- soever, you be and appear in your proper person before W. G. H., a justice of the peace, in the borough of , on the day of , 19 , at o'clock a. m., then and there to testify your knowledge concerning a certain action now pending and undetermined between the commonwealth of Pennsylvania and E. P., on the part of the commonwealth; and this you are not to omit, under penalty of the law. W. G. H., Justice of the peace. 795. Subpoena duces tecum. The same form as above, adding after the word "commonwealth," where last used, the following: "And that you bring with you and produce at the time and place aforesaid, a certain bond [^book, letter, or whatever it may he, describing it as accurately as possible by the date, etc.] to be given in evidence in the aforesaid case." §§ 796, 797] FORMS. 587 796. Commitment of prisoners for further examination. County, ss. The commonwealth of Pennsylvania; To J. W., constable of the township of , and to the keeper of the common gaol of the said county; Greeting: [l. S.J Whereas, information has this day been made before M. K., a justice of the peace of the said county, on the oath of A. B., that a person whose name is unknown to the said A. B. on the day of , A. D. 19 , at the county aforesaid, made an assault upon and feloniously and with force and violence, took from the per- son of the said A. B., a pocketbook containing a large sum of money, and that he has reason to suspect that a certain M. L., now before the said justice on the charge thereof, did commit the said felony; and further time is necessary to procure the attendance of the wit- nesses in the case, and for the proper examination thereof before the said justice. These are, therefore, to require you, the constable, to take the said M. L. to the gaol aforesaid, and deliver him to the keep- er thereof, who is hereby commanded to keep the said M. L. in his custody until 10 o'clock a. m. of next , at which time the said constable is commanded to bring the said M. L. again before the said justice, that a further examination may be had respecting the said charge, and that he may be dealt with according to law. Witness the said justice, etc. 797. Precept for bringing the defendant before the justice out of jail for further hearing. The State of PewnsylvaniAj^ CouifTT. j To any constable of the township of ; Greeting: Whereas, C. D. was committed to the gaol of the said county, charged on the oath of A. B. with, etc., there to remain until the day of , etc., for further examination and hearing be- fore me: You are, therefore, hereby commanded to take the said C. D. from the custody of the keeper of the said gaol, so that you have him before me at the time aforesaid to answer to the said charge. Given under my hand and seal, this ) day of , A. D. 19 . ) J. P. [seal.] 688 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 798. Commitment of witness for not testifying. County, ss. The commonwealth of Pennsylvania; To the keeper of the common gaol of the county of : [l. s.] We herewith send you the body of M. L., who hath appeared this day before J. P., one of our justices of the peace in and for the said county, at his office in , being duly summoned to testify his knowledge in a certain prosecution, etc., on the oath of, etc., before our said justice, against Kichard Koe, but hath refused to be sworn and give evidence accordingly: You are, therefore, here- by commanded immediately upon sight hereof, to receive the said M. L. into your custody, and him safely keep until he shall comply and consent to be sworn and give evidence accordingly, or be thence delivered according to law. Witness the said J. P., who hath hereto, etc., at, etc., on, etc. 799. Attachment for a witness. County, ss. The commonwealth of Pennsylvania; To J. W., constable of the township of , etc. : [l. s. j We command you that you attach 11. L., of town- ship, in the said county, yeoman, if he be found in your bailiwick, and him safely keep so that you have his body before J. P., one of our jxistices of the peace in and for the said county, at his office in aforesaid, to answer us of a certain contempt by him done, in refusing to appear before our said justice, at his office, on Monday, the day of instant, then and there to testify his knowledge in a certain prosecution before our said jus- tice against D. B. for a robbery charged to have been committed by him upon Luther White, as the said M. L. was duly required and siimmoned so to do. Have you then there this writ. Witness the said J. P., who hath hereto set his hand and seal, etc., at aforesaid, the day of , in the year 19 J. P. [seal.] 800. Recognizance to appear at court. CommonweaJtli of Pennsylvania 1 c. i 1 burcharge larceny \ -R I on oath of C. D. County, ss. We and each of us, A. B., defendant, and C. D., bail of A. B., do §§ 801, 802] FORMS. 589 acknowledge ourselves jointly and severally indebted to the common- wealth of Pennsylvania in the sum of five hundred dollars, to be lev- ied on our and each of our lands and tenements, goods and chattels : Conditioned, that if the said A. B. shall be and appear at the next court of oyer and terminer and general jail delivery and quarter ses- sions of the peace for the county of , to be held at , in and for the county of , then and there to answer all such charges as may be preferred against the said A. B. and shall abide and not depart the court without leave, and in the meantime keep the peace and be of good behavior towards all the citizens of the commonwealth, then this recognizance to be void and of no effect, otherwise to be and remain in fuU force and virtue. A. B. C. D. Taken and acknowledged before me, this ^ day of , A. D. 19 . ^ W. G. H., [seal.] Justice of the peace. 801. Becognizance of witnesses. County of , ss. The following persons were each held in the sum of one hundred dollars, to appear and testify at the term of court : IN'ame of Witnesses. Kesidence. A. B. , Pa. C. D. , Pa. Taljen and acknowledged before me, this 7 day of , A. D. 19 . I W. a H., [seal.] Justice of the peace. (This is attached to the recognizance of the defendant. It may be written in full as in the form preceding conditioned upon the appear- ance of the witnesses.) 802. Becognizance for the peace and good behavior. You, A. B. [^the principal'], do acknowledge to owe to the common- wealth the sum of one hundred dollars, and you, T. P. and T. T. [the hail] do acknowledge to owe to the commonwealth the sum of one hundred dollars each to be levied of your several and respective goods and chattels, lands and tenements to the use of the commonwealth: 590 CEIMINAL AND PENAL PROCEDURE. [ohap. xxxiii. Upon this condition, that if tlie said A. B. shall personally appear at the next court of quarter sessions of the peace to be held [or, the court now being held'] , at , for the county of , then and there to answer such matters and things as shall be objected to him on behalf of the commonwealth, for threatening to beat P. S., etc., and shall in the meantime keep the peace and be of good behavior to- wards all the good citizens of the commonwealth, and especially to- wards P. S., and not to depart said court without license ; then this recognizance to be void, otherwise to be in full force and virtue. A. B. [seal. J T. P. [seal.] T. T. [seal.] Taken and acknowledged before me, this 7 day of , 19 . j M. N., Justice of the peace. 803. Commitment by justice. County of , ss. Commonwealth of Pennsylvania ; To the constable of the ward of the borough of , in the county of , and to the keeper of the common jail of the said county; Greet- ing: These are to command you, the said constable, forthwith to convey and deliver unto the custody of tlie said keeper of the said common jail the body of A. B., charged before W. G. H., esquire, one of our justices, in and for the said county, with larceny. And you, the said keeper, are hereby required to receive the said A. B. in your cus- tody in the said common jail, and him there safely keep until he be delivered by due course of law. Witness my hand and seal, this day of , a. d. 19 . W. G. H., [seal.] Justice of the peace. 804. Discharge by justice after commitment. Charged before W. G. H., Esq., on the oath of C. D., with larceny committed the day of , 19 . Discharge out of your custody the body of the above-named def end- Commonwealtli vs. A. B. §§ 805, 806] FORMS. 591 ant, if detained for no otker cause than that mentioned in my mit- timus. And for so doing this shall be your sufficient warrant. I do certify that this case has not been returned to court Bail entered by 0. D. and A. B. in $500, conditioned that the de- fendant shall appear at the next court of quarter sessions to be held at , on the first Monday of , 19 • Given under my hand and official seal, this day of , A. D. 19 . W. G. H., [seal.] Justice of the peace. To the keeper of the prison county. i 805. Discharge of prisoner from jail. CoUNTYj SS. [seal.] The commonwealth of Pennsylvania; To the keeper of the common jail of the county of : You are hereby commanded to discharge out of your custody the body of C. D., if detained for no other cause than that mentioned in the warrant of J. K., one of our justices of the peace in and for the said county of , of the day of , last past, the said J. K. having taken sureties for the appearance of the said 0. D. at the next court of quarter sessions of the peace to be held for the county aforesaid, to answer the complaint therein men- tioned {^or, "the prosecution therefor having been by the said parties settled and discontinued before the said justice^ with his approbation, agreeably to the act of assembly in such case provided"^, and for your so doing this shall be your sufficient warrant Witness the hand and seal of the said J. K., justice as aforesaid, this day of , 19 . J. K., [seal.] Justice of the peace. 806. Detainer. CoUNTTj SS. [seal.] Commonwealth of Pennsylvania ; To the keeper of the com- mon jail of the county of : Whereas, one C. D. is now in your custody on certain legal proc- ess : These are, therefore, to command and require you, the said keep- er, to detain and keep in your custody the body of the said 0. D., that 692 CRIMINAL AND PENAL PROCEDURE. [chap. xxxm. he may not therefrom depart until he shall be brought before me, J . K., justice of the peace in and for the said county of , to answer the said commonwealth of a certain charge made before me against the said 0. D., on the oath of A. B., for having [setting forth the offense^ ; and for so keeping and detaining the said C. D., this shall be your sufficient warrant. Given under my hand and seal, at , this day of 19 J. K. [SEAl.] Justice of the peace. 807. Betnrn to court of quarter sessions. Justice's Fees. , 19 . Information and Oath . .$ .50 Charged on oath of J. H. H. with Entry ,, , .2.5 A. and B. Warrants , ,. .50 Continuance Warrant issued to J. McC, Con- Subpoena for 5 Witnesses .65 ^*^*^^®- Hearing and Oaths ^ 19 ^ Warrant re- 2 Recognizances 1.00 turned. Mittimus 50 Eeturn to Court 50 , 19 , Defendant ar- ■ rested so ans. J. McC, Con- $3.90 stable. Constable's Costs. , 19 . Warrants and Mileage ..$1.12 Subpoena and Mileage Defendant enters bail for hear- Commitment and Mileage 1.00 ing and afterward waives hearing and enters into her own recogni- $2.12 zance in the sum of $100 for her !N'aines of Witnesses. appearance at the nest court of quarter sessions of county. Counts of , ss. I certify that the above is a true copy from my docket, and that the foregoing recognizances were duly acknowledged before me. Witness my hand and seal ,19 . O. J., [seal.] Justice of the peace. (To this the papers are attached.) § £08] FORMS. C93 808. Constable's return to court. sessions, 19 . 1, A. B., constable of the fourth ward of the boroufjh of , in county, do hereby make the following ret am for the quar- ter ending the day of > 19 j to wit : Tlie roads are in good order, excepting [i/ any, so siafe]. The supervisors having charge of same are A. and B. Their postoffice addresses are C. and D. The bridges, their wing walls and embankments are in good re- pair excepting [if any, so state'] . The supervisors having charge of same are A. and B. Their postoffice addresses are C. and D. The index boards at intersections of roads are all up, excepting [if any, so state']. There has been one male bastard child born. There have been no female bastard children born. The name of lie mother M. The name of the putative father iN". Deer or other game killed, sold, or offered for sale out of season byR. ISTames of witnesses : S. and T. Fish have been caught, sold, or offered for sale contrary to law byG. Names of witnesses : F. and H. Bawdy houses have been kept by M. If ames of witnesses : N. and E. Gambling houses have been run by M. !N"ames of witnesses : N. and E. The following persons bet on the late election: none. Xames of witnesses : none. Disturbances of the peace at elections were made by no one. Names of witnesses : none. The following persons arc licensed to sell intoxicating drinks : A., B., and C. The following persons have sold intoxicating drink without li- cense. Names of witnesses : E. and F. Persons who have sold intoxicating drink on Sunday: none. Names of witnesses: none. Pa. Orim. Proc.— 38. 594 CRIMINAL AND PENAL PROCEDURE. [chap, xxxul Persons who have sold intoxicating drink on election day : none. Names of witnesses: none. The following persons have wilfully furnished intoxicating drink as a beverage [by sale, gift, or otherwise] to minors: none. Names of witnesses : none. The following persons have wilfully furnished intoxicating drink as a beverage to persons of intemperate habits : none. Names of witnesses: none. The following persons have wilfully furnished intoxicating drink to those who were visibly affected thereby: none. Names of witnesses: none. The following persons have wilfully furnished intoxicating drink as a beverage to insane persons : none. Names of witnesses: none. The keepers of public houses, who have knowingly permitted any spirituous or malt liquors, wine, or cider to be drank on or within their houses or premises on Sunday: none. Names of witnesses: none. The following persons who are engaged in the sale of spirituous, vinous, malt, or brewed liquors have stand, stand casks, hogsheads, •or liquor pipes in bar rooms: none. The following persons have been returned to me charged with vio- lating provisions of the act of April, 1876, relating to the sale of liquors : A. and B. And as witnesses of such violation there has been returned to me the names of C. and D. I have faithfully complied with the provisions of the act of 13th of May, 1887, in reference to making monthly visits to the places licensed to sell liquor in my bailiwick and have made returns where violations have been observed. W. S., Constable. CotTNTT, ss. Before me, the clerk of the quarter sessions of county, personally came W. S., constable above named, who, being duly qual- ified according to law, deposes and says, that the return above made by him is true, and he further says that there has been no violation of |§ 8C9, 810] FORMS. 595 the laws regulating the sale of liquors within this commonwealth ex- cept as returned by him, to the best of his knowledge and belief. W. S., Constable. Sworn and subscribed before me, this ) day of , A. D. 19 . j H. H., Clerk of quarter sessions. !N'ote. Constables returning indictable offenses must obtain a sub- poena, same day, from the district attorney before leaving court. 809. Bailpiece by clerk of court. In the court of quarter sessions of the peace of coun- ty, Pennsylvania. Commonwealth of Pennsylvania 1 n i i ■^ I surcharge larceny. I, S. B., clerk of the court aforesaid, do hereby certify that E. F. has become bound in the sum of three hundred dollars, conditioned for the appearance of the said defendant, A. B., at the ensuing term of quarter sessions of the peace to be holden in and for said county, to answer the charge of larceny, as appears by a re- cognizance taken on the day of , 19 , before W. G. H., Esq., justice of the peace, and on file in this office. [seal of couet.J S. B., Clerk of quarter sessions. I do depute and appoint M. IST. to execute the above bailpiece and taJie the said defendant, A. B., into custody. E. E. Commonwealth of Pennsylvania vs. 810. Bailpiece by justice. Before W. G. H., Esq., a jus- tice of the peace in and for the county of J Charge, larceny, on oath of CD. I, W. G. H., a justice of the peace in and for the county afore- said, do hereby certify that on the day of , 19 ,. E. E. became bail for the said defendant, A. B., in the sum of five 596 CKIMINAL AND PENAL PROCEDURE. [chap, xxxiii. hundred dollars, by recognizance taken and acknowledged before me, conditioned that the said defendant should be and appear at the court of quarter sessions of the peace, to be held in and for the said county on the first Monday of , 19 , to answer the aforesaid charge and not depart the court without leave. Witness my hand and seal the day of , 19 . W. G. H. [seal.] 811. Venire to summon coroner's jury. Commonwealth of Pennsylvania ; To A. B., constable of the ward of the borough of : We command you that you forthwith summon six good and lawful men of the county of , whose names are hereunto an- nexed, to be and appear before the undersigned, coroner of said coun- ty, at his office, No. street, in the borough of aforesaid, on Saturday the day of , 19 , at o'clock in tlie forenoon of the said day, then and there to in- quire of, do, and execute all things in behalf of the said common- wealth as shall lawfully be given them in charge touching the death of A. K. And be you then and there present to certify what you shall have done in the premises, and further to do and execute what shall then and there be enjoined you in behalf of the commonwealth aforesaid. G-iven under the hand and seal of the coroner aforesaid at the borough of this day of , 19 . M. K, [seal.] Coroner. 812. Oath of coroner's jury. You and each of you do swear \^or affirm'] that you will diligently inquire and a true presentment make on behalf of the commonwealth, ho'sv and in what manner A. B. [or^ "a person unknown here lying dead"], came to his death, and of such other matters relating to the same as shall la^vfuUy be required of you, according to the evidence. So help you God [or, so you do affirm']. 813. Oath of witness at coroner's inquest. You do swear [^or affirm] that the evidence which you shall give to this inquest, touching the matter now being inquired of by them, shall be tie truth, the whole truth, and nothing but the truth. So help you God [or, so you do affirm]. §§ 814, 815] FORMS. 597 814. Coroner's inquisition. Commonwealth oi' Pennsylvania. 1 County of . j Inquisition taken, etc., the day of , 19 , be- fore M. N., coroner, etc., and upon the solemn oaths ajid affirmations of A. B., C. D., etc., six good and lawful men of the county afore- said, charged to inquire when, where, and by what means A. K. came to his death ; who, having viewed the body of the said A. K., and hav- ing heard the evidence produced before them, do find and say that he, the said A. K., came to his death on the public square in the bor- ough of , in the county aforesaid at 6 o'clock of Friday last, the instant, by means of a wound inflicted with a pistol, the ball from which penetrated his heart, and that the said shot wound was administered and the death of the said A. K. caused by the pre- meditated, felonious, and malicious act of E. S., who murdered the said A. K., against the peace and dignity of the commonwealth of Pennsylvania. In witness whereof, etc. t. * (Signed and sealed by the coroner and jury.) I 815. Petition for writ of habeas corpus where detained by commitment. Commonwealth ex rel. V. The keeper of the county prison. J To the Honorable J. S., judge of the court of common pleas of the county of The petition of Eichard Eoe humbly showeth that he is illegally in the custody of the keeper of the county prison, ajid is unlawfully restrained of his liberty upon a charge which will ap- pear upon reference to the subjoined paper and certificate. He, therefore, humbly prays your Honor to issue a writ of habeas corpus for his relief, agreeably to the act of assembly of the 18th of Febru- ary, one thousand seven hundred and eighty-five. And as in duty bound he will ever pray, etc. Eichard Eoe, ,19 . (Affidavit.) (Upon presentation the writ is allowed by the court, and the date upon which it is made returnable is indorsed theveon.) 698 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 816. Petition for writ of habeas corpus where not detained by commitment. To the Honorable J. S., judge of the court of cominoii pleas of county : The petition of C. D. respectfully showeth : That he is unlawfully restrained of his liberty by M. 'N., of the borough of , county, and that such restraint, to the best of the peti- tioner's knowledge and belief, is not by virtue of any commitment or detainer for any criminal or supposed criminal matter. He there- fore prays your Honor to grant a writ of habeas corpus, agreeably to the act of assembly in such case made and provided, directed to the said E. F., commanding him to have the body of your petitioner before your Honor forthwith, to do, submit to, and receive whatso- ever may be lawful and right in the premises. CD. (Affidavit as to truth of facts set forth.) 817. Return to writ of habeas corpus. To the Honorable J. S., judge of the court of common pleas of county : E. F., defendant in the within writ mentioned, for return thereto respectfully submits to your Honor that true it is that the said C. D., therein named, is confined and restrained of his liberty by him, the said E. E. ; but the said defendant alleges that the said C. D. is so restrained lawfully by virtue of a commitment, etc., as follows [sef foHh a copy of the authority under which the prisoner is in cus- tody~\ : Wherefore, the said E. E. has here before your Honor the body of the said C. D., together with the said writ, as therein he is commanded. \_0r, if the alleged prisoner is not in custody, so set forth. That the said C. T). tlierein named is not now, nor was at the time of the issuing' of the said writ, in tlie custody, power, or possession of, or confined or restrained of his liberty by the said E. F. There- fore he cannot have the body of the said C. D. before your Honor, as by the within writ he is coitunanded.] So answers E. F. §§ 818-880] FORMS. 599 818. Traverse of return. In the Matter of Commonwealth ex rel. 1 In the court of quarter sessions of the peace vs. \ of county sessions, 19 , A. B. J No. And now, , 19 , the return to the writ of habeas corpus in this case having been read and filed, the petitioner traverses the same and says: (Deny the facts set forth in return.) C. D. (Signature of relator.) (Usual aifidavit.) 819. Oath of jury commissioners. You and each of you do swear [or afftrm] that you will use your utmost endeavors and diligence in making an impartial selection of competent persons for jurors during the ensuing year, and that you will not suffer partiality, favor, affection, hatred, malice, or ill will, in any case or respect whatever, to influence you in the selecting, drawing, or returning of jurors; but that you will, in all respects, honestly conform to the true intent and meaning of the acts of assem- bly in such case made and provided. So help you God \_or, so you do affirm^. 820. Precept for venire for oyer and terminer. To the clerk of the court of oyer and terminer and general jail de- livery of county, Pennsylvania: It is hereby ordered that you issue a writ of venire facias juratores to the sheriff and jury commissioners of said county to impanel, and the said sheriff to summon a grand and petit jury to inquire and try all causes and matters which may be depending in the court of oyer and terminer and general jail delivery of said county at the term thereof to be holden on the first Monday of , being the day of , 19 . And that the number of grand jurors shall be twenty-four, and the number of petit jurors shall be forty-eight, and one and the same panel of jurors as shall be impan- 600 CRIMINAL AND PENAL PilOCEDURE. [chap, xxxiii. eled and summoned in the court of quarter sessions of the peace of said term. By the court, A. B., President judge. 821. Precept for venire for quarter sessions. To the clerk of the court of quarter sessions of the peace of county, Pennsylvania: It is hereby ordered that you issue a writ of venire facias juratores to the sheriff and jury commissioners of said county to impanel, and the said sheriff to summon a grand and petit jury to inquire and try all causes and matters which may be depending in the court of quar- ter sessions of the peace of said county at the term thereof to be holden on the first Monday of , being the day of , 19 . And that the number of grand jurors shall be twenty-four, and the number of petit jurors shall be forty-eight, and one and the same panel of jurors as shall be impaneled and summoned in the court of oyer and terminer of said term. By the court, A. B., President judge. 822. Venire for grand jury in oyer and terminer and return of sheriff. County, ss. The commonwealth of Pennsylvania to the sheriff and jury commis- sioners of said county ; Greeting : We command you and every of you that in your own proper per- sons you draw from the wheel containing the names of the persons selected according to law to be jurors in the court of said county, the names of twenty-four persons to be grand jurors in our court of oyer and terminer in and for the county of aforesaid to be holden at , on the Monday of next, at 10 o'clock in the forenoon. And, further, that you, the sheriff, do summon the persons whose names shall be dravra, and every of them, to come before onr said court, at the same time and place, to inquire of and perform all those things which on our part shall be enjoined upon them ; and that you, the said sheriff, have then and there this writ, and tlie names and surnames of the persons so summoned, with tlieir additions respectively, in a panel hereto annexed, and otherwise § 823J FORMS. 601 make return at the day and place aforesaid how you shall have exe- cuted this writ. Witness the Honorable A. B., president of our said court this day of , A. D. 19 . C. D., Clerk of oyer and terminer. Return of sheriff. Venire for grand jurors in the oyer and terminer court of county, to be summoned for sessions, 19 . Session, 19 . Filed , 19. To the Honorable A. B., president judge of the oyer and terminer of the county of : I, M. N., sheriff of county, Pennsylvania, do make return, that in conjunction with the jury commissioners, I drew from the wheel containing the names of the persons selected according to law the names of twenty-four persons to be grand jurors in a court of oyer and terminer to be held in and for said county on Monday, , 19 . All of whom have been summoned as per panel hereto attached. So answers M. K, Sheriff. 823. Venire for traverse jury in oyer and terminer and return of sheriff. CoUNTTj SS. Commonwealth of Pennsylvania; To the sheriff and jury commis- sioners of said county; Greeting: We command you and every of you that in your own proper per- sons you draw from the wheel containing the names of the persons se- lected according to law to be jurors in the court of said county, the names of forty-eight persons to be traverse jurors in our court of oyer and terminer in and for the county of aforesaid to be hold- en at , on the first Monday of next at 10 o'clock in the forenoon. And further, that you, the said sheriff, do summon the persons whose names shall be drawn, and every of them, to come before our said court at the same time and place to inquire of and perform all those things which on our part shall be enjoined upon them ; and that you, the said sheriff, have then and there this 602 CRIMINAL AND PENAL PROCEDLTRE. [chap, xxxiii. writ, and the names and surnames of the persons so summoned, with their additions respectively, in a panel hereto annexed, ajid other- wise maJie return at the day and place aforesaid how you shall have executed this writ. Witness the Honorable A. B., president of our said court, this day of , A. D. 19 . CD., Clerk of oyer and terminer. Eeturn of sheriff. Venire for traverse jurors in the oyer and terminer court of county, to be summoned for sessions, 19 . Tiled , 19 . To the Honorable A. B., president judge of the oyer and terminer of the county of : I, M. N., sheriff of county, Pennsylvania, do make return, that in conjunction with the jury commissioners I drew from the wheel containing the names of the persons selected according to law the names of forty-eight persons to be traverse jurors in a court of oyer and terminer to be held in and for said county, on Monday, ,19 . All of whom have been summoned as per panel hereto attached. So answers M. K, Sheriff. 824. Venire for grand jury in quarter sessions and return of sheriff. CotTNTY^ SS. The commonwealth of Pennsylvania; To the sheriff and jury com- missioners of said county; Greeting: We command you and every of you that in your own proper pei- sons you draw from the wheel containing the names of the persons selected according to law to be jurors in the court of said county, the names of twenty-four persons, to be grand jurors in our court of quarter sessions in and for the county of aforesaid to be holden at , on the first Monday of next at 10 o'clock in the forenoon. And, further, that you, the said sheriff, do summon the persons whose names shall be drawn, and every of them, to come before our said court, at the same time and place, to inquire of and perform all those things which on our part § 825] FORMS. 603 shall be enjoined upon them; and that you, the said sheriff, have then and there this writ, and the names and surnames of the persons so summoned, with their additions respectively, in a panel hereto at- tached, and otherwise make return at the day and place aforesaid how you shall have executed this writ. "Witness, the Honorable A. B., president of our said court this day of , A. D. 19 . CD. Clerk of quarter sessions. Return of Sheriff. Venire for grand jurors in the quarter sessions court of county, to be summoned for sessions, 19 . Session, 19 . Filed, , 19 . , 19 . To the Honorable A. B., president judge of the quarter sessions of the county of : I, M. ]Sr., sheriff of county, Pennsylvania, do make retiirn, that in conjunction with the jury commissioners I drew from the wheel containing the names of the persons selected according to law the names of twenty-four persons to be grand jurors in a court of quarter sessions to be held in and for said county on Monday, ,19 . All of whom have been summoned as per panel hereto attached. So answers M. N"., Sheriff. 825. Venire for traverse JTiry in quarter sessions and return of sheriff. County, ss. The commonwealth of Pennsylvania; To the sheriff and jury com- missioners of said county; Greeting: We command you and every of you tliat in your own proper per- sons you draw from the wheel containing the names of the persons selected according to laAV to be jurors in the court of said county, the names of forty-eight persons, to be traverse jurors in our court of quarter sessions in and for the county of aforesaid, to be holden at , on the Monday of next, at 10 o'clock in the forenoon. And, further, that you, the said sheriff, do summon the persons whose names shall be drawn, and 604 CRIMINAL AND PENAL f ROCEDURE. Lchap. xxxiii. every of them, to come before our said court, at the same time and place, to inquire of and perform all those things which on our part shall be enjoined upon them ; and that you the said sheriff have then and there this writ, and the names and surnames of the persons so summoned, with their additions respectively, in a panel hereto an- nexed, and otberwise make return at the day and place aforesaid how you shall have executed this vn-it. Witness the Honorable A. B., president of our said court this day of , A. D, 19 . C. D., Clerk of quarter sessions. Return. Venire foi* grand jurors in the quarter sessions court of county, to be summoned for sessions, 19 . , 19 . To the Honorable A. B., president judge of the quarter sessions of the county of : I, M. ]Sr., sheriff of county, Pennsylvania, do make return, that in ocnjunction with the jury commissioners I drew from the wheel containing the names of the persons selected according to law the names of the forty-eight persons to be traverse jurors in a court of quarter sessions to be held in. and for said county on Monday, ,19 . All of whom have been summoned as per panel hereto attached. M. K, Sheriff. 826. Return of jury commissioners and sheriff to writs of venire facias juratores. If a return be made by jury commissioners and sheriff, this form is used: To the Honorable the judges within named : We, the undersigned, sheriff and jury commissioners of the said county, hereby certify tJiat we have in our proper persons drawn, ac- cording to law, from tlie wheel containing the names of the persons selected for jurors in said county, the names of persons to be [grand, or traverse, as the case may te], jurors at a court of quarter sessions of the peace [or, oyer and terminer, as the case may he'], to be held at , in and for the said county, on the §g 837-829] FORMS. 605 day of , 19 , as by within writ we were com- manded. The names of the persons so drawn appear in the panel hereto annexed. And I, the said sheriff, do further certify that I have duly summoned the persons drawn as aforesaid to come before the said court at tlie time and place in the said writ mentioned, as I was therein particularly commanded. Witness our hands and seals this day of ,19 G. F., [seal.] Sheriff. J. B., [seal. J K. S., [seal.] Jury commissioners. 827. Oath of foreman of grand jury. You, A. B., as foreman of this inquest for the body of the county of , do swear [or^ solemnly, sincerely, and truly declare and affirm'}, that you will diligently inquire, and true presentment make, of all STXch. articles, matters, and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the commonwealth's counsel, your fellows' and your own you shall keep secret; you shall present no one for envy, hatred, or malice; neither shall you leave anyone unpresented for fear, favor, affection, hope of reward, or gain, but shall present all things truly as they come to your knowledge, according to the best of your under- standing. So help you God [or, so you do affirm']. 828. Oath of grand jurors. You and each of you do swear [or, solemnly, sincerely, and tridy declare and affirm'} that the same oath [or affirmation} which your foreman hath taken on his part, you and every one of you shall well and truly observe and keep on your part. So help you God [or, so you do affirm}. (In some counties all are sworn together.) 829. Oath of petit jurors. You and each of you do swear [or, solemnly, sincerely, and truly declare and affirm} that you will well and truly try the issue joined between the commonwealth of Pennsylvania and A. B., and a true verdict give according tc tlie evidence. So help you God [or, so you do affirm}. 606 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 830. Oath of jury to try issue of present insanity. The oath to a jury impaneled to try whether the prisoner is so in- sane as to be incapable of m.iking his defense is : — You shall diligently inquire and a true verdict return for and on behalf of the commonwealth, whether A., the prisoner at the bar, who now stands indicted for murder, be of sound mind and under- standing' or not, and a triie verdict give according to the best of our uiderstanding, so help you God [o7% so you do affirm]. 831. Oath of officer in charge of jury. You do swear \_or affirm'] that you will keep this jury in some pri- vate ajid convenient place until they have agreed upon their verdict; and that you will not suffer any person to speak to them, nor speak to them yourself, without leave of the court, except it be to ask them if tliey have agreed upon their verdict. So help you God l_orj so you do affirm]. 832. Oath of oficer in charge of jury to be kept together. You do swear [or affirm] that you will retire with this jury to some convenient room to be furnished by the sheriff; that you will not suffer any person to speak to them, nor speak to them yourself in relation to this trial ; and that you will return with them here at the order of the court. So help you God [or, so you do affirm], 833. Oath of witness before grand jury. You do swear [or^ solemnly, sincerely, and truly declare and af- firm] that the testimony you shall give to the grand inquest for the body of the county of , upon such bills of indictment whereunto you shall be examined, shall be the truth, the whole truth, and nothing but the truth. So help you God [or, so you do affirm] . 834. Report of grand jury. To the Honorable A. B., president judge of quarter sessions of the peace in and for the county of , sessions, 19 . The grand inquest of the commonwealth of Pennsylvania, inquir- ing for the county of , in all matters relating to the same, do respectfully report: That they have acted upon one himdred bills of indictment, of •which fifty were found true bills, and fifty were found not true bills. §§ 835, 836] FORMS. 607 We beg leave further to report : That we have visited and in- spected the county buildings and find them in good condition. We further report [such matters as they desire to call to the court's attention']. We respectfully tender our thanks to the honorable judge and dis- trict attorney for their courtesy aud assistance rendered us during our deliberations. 0. D., Dated , 19 . Foreman. 835. Criminal information. Of Michaelmas term in the fifth year of Queen Victoria. Cambridgeshire, to wit: Ee it remembered, that Sir F. P., Knight, attorney general of our present Sovereign Lady the Queen, who for our said Lady the Queen in this behalf prosecuteth, in his own proper person cometh into the cotirt of our said Lady the Queen before the Queen herself at Westminster, on Tuesday, the second day of November, in this same term, and for our said Lady the Queen giveth the court here to understand, that, etc. {proceeding to set out the offense^ in as many counts as the pleader chooses, pre- cisely as in an indActment; and omitting nothing which the indict- ment should contain, even to the conclusion. A new count is intro- duced, as follows: And the said attorney general of our said Lady the Queen, on behalf of our said Lady the Queen further gives the court here to understand and he informed, that, etc. The informa- tion then closes, thus] : Whereupon the said attorney general of our said Lady the Queen, for our said Lady the Queen, prays the consid- eration of the court here in the premises, and that due process of law may be awarded against him the said S. L., in this behalf, to make him answer to our said Lady the Queen touching and concern- ing the premises aforesaid. (This common-law form indicates the appropriate pleading. No precedents are to be found in the few reported Pennsylvania cases.) 836. Presentment of grand jury. To the Honorable A. B., president and sole judge of the court of quarter sessions, in and for the county of The grand jury in and for the sessions of said court would respectfully report as follows : 60a CRIMINAL AND PENAL PROCEDUHE. [chap, xxxiii. That in regard to the special instructions of your Honor in refer- ence to the investigation of the election frauds made manifest in the ballot boxes of the ward of and to\^Tiship, by a recent examination of the same, by the examiners in the B. — W. contest, we would report that we began the investigation of said frauds on Priday afternoon, the ult, and have con- tinued the same until this Tuesday evening. That we critically examined into the conduct of the election offi- cers of said district; the place of reception of said boxes, and their custody, from the end of the election until their reception by the ex- aminers. We called and examined some forty-seven witnesses, covering every person who had any connection with the election for senator in the fall of 1882 in said districts; and with the said election con- test, and any and every person suggested to us by anyone who knew, or was likely to know, anything about the subject. That we examined the witnesses, critically and categorically, in reference to these frauds, as well as any other which might be in their knowledge. We take occasion here to say that in this investigation we were aided but little, if any, by outside citizens, other than those we sub- popnaed. We found from the records of the B. — W. contest in the prothono- tary's office and evidence submitted to us, that there was a difference of twenty-five votes in the ballot box of the ward of in favor of J. W. B., than were returned for him by the election offi- cers. That in the ballot box of the township of there was a difference of thirty-eight votes in favor of J. W. B. than were re- turned for him by the election officers. That from our investigation of this subject, we are unable to find definitely and certainly how tliese differences occurred, and in our judgment the evidence and facts do not justify us in presenting the officers of either of said election districts, nor are we able to present anyone in guilty connection with the said frauds, and therefore pre- sent no one for indictment in connection therewith. We deplore tliis state of affairs and feel, in common with all good citizens, that such a state of affairs does exist in our county, that such a bold and infamous crime mast go undiscovered and unpunished, and we sincerely hope that public sentiment may be so awakened that, by attention to this crime, steps will be taken to prevent a future repe- § 887] FORMS. 600 tition. We call attention to the manner of keeping the Courthouse closed, and suggest that the iron doors of the water-closet window be shiit at night We would also call attention to the place of custody of the ballot boxes of the district. We think that a more secure place for their custody than Squire S.'s office should be pro- vided, or that the same be made secure. (Signed) J, J., Indorsement. Foreman. Filed , 19 . IvTow, to wit, , 19 , ordered to be filed and recorded on the records of the ♦ court. By the court. Or, if the offense be made out, then so report, with the names of those guilty. Or if upon the knowledge of the jurors themselves, it should so appear. 837. Indictment in oyer and terminer. In the court of oyer and terminer and general jail delivery, and quarter sessions of the peace, for the county of , So. , sessions, in the year of our Lord 19 . County or , ss. The grand inquest of the commonwealth of Pennsylvania, inquir- ing for the county of , upon their respective oaths and af- firmations, do present that G. A., late of the said county, yeoman, on the day of , in the year of our Lord 19 , at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., one ten-dollar bill, two two-dollar bills, two one-dollar bills, and one silver dollar, issued and coined by the government of the United States and current money therein, of the denomination of ten dollars, two dollars, one dollar, and one dollar, of the value of ten dollars, four dollars, two dollars, and one dollar; and one gold ring of the value of ten dollars ; and all of the value of twenty-seven dollars of the goods and chattels, moneys and property of L. W., then and there being found, then and there feloniously did steal, take, and carry away, contrary to the form of the act of general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania. And the inquest aforesaid, upon their oaths and affirmations afore- Pa. Crim. Proc— 39. 610 CEIMINAL AND PENAL PROCEDUKE. [chap, xxxiii. said, do further present, that the said Gr. A. afterwards, to wit: on the same day and year aforesaid, at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., the goods and chattels, moneys and properties aforesaid, by some illdisposed person to the jurors aforesaid yet unknown, then lately before fe- loniously stolen, taken, and carried away, feloniously, unjustly, and for the sake of wicked gain, did receive and have, the said Gr. A. then and there well knowing the goods and chattels, moneys and properties last mentioned, to have been feloniously stolen, taJken, and carried away, contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania. A. B., Commonwealth's witnesses. District attorney. A. B. CD. E. r. J. K. M. N. Indorsements on bilL No. } sessions, 19 . Commonwealth vs. G. A. 1st Count — Larceny. 2d Count — Receiving stolen goods. , 19 . A true bill. C. B. B., Foreman. J. McC, Prosecutor. 838. Indictment in quarter sessions. In the court of quarter sessions of the peace in and for the county of No. , sessions, in the year of our Lord one thousand nine hundred CotTNTT, ss. The grand inquest of Pennsylvania, inquiring in and for the coun- ty of , on their oaths and affirmations respectively do present : That F. M., late of said county, spinster, on the day FORMS. Oil of , in the year of our Lord one thousand nine hundred , at the county aioresaid and within the jurisdiction of this court, with force and arms, in and upon one E. A. H. in the peace of said commonweaJth, then and there being, did make an assault, and her, the said E. A. H. did heat, wound, and illtreat, and other wrongs to the said E. A. H. then and there did, to the great damage of the said E. A. H., contrary to the form of the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania. And the jurors aforesaid on their oaths and affirmations do further present that the said E. M. afterwards, to wit, on the day and year aforesaid at the county aforesaid and within the jurisdiction of this 30urt, with force and arms in and upon the said E. A. H. in the peace of the said commonwealth, then and there being, did mate an assault, and her, the said E. A. H., then and there did abuse and illtreat, and other wrongs to the said E. A. H> then and there did, to the great damage of the said E. A. H., contrary to the form of the act of as- sembly in such case made and provided, and against the peace and dinity of the commonwealth of Pennsylvania. A. B., District attorney. Witnesses for the commonwealth. A. P. CD. E. F. J. K. M. K Indorsements on bilL "So. f sessions, 19 . Commonwealth vs. E. M. 1st Count — Assault and battery. 2d Coimt — Assault. , 19 . E^ot a true bill. Prosecutor J. H. to pay costs. C. B. B., Foreman. J. H.j Prosecutor. 612 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 839. Indictment of a corporation. In tlie court of quarter sessions of the peace in and for the county of 'No. , sessions, in the year of our Lord 19 . County, ss. The grand inquest of the commonwealth of Pennsylvania, inquir- ing in and for tlie county of , on their respective oaths and afRrmations, do present, that the Philadelphia, Harrisburg, & Pittsburg liailroad Company, an existing corporation, duly char- tered by the commonwealtJi of Pennsylvania, did, on the day of in the year of our Lord one thousand nine hundred , with force and arms, in the borough of , in the county of aforesaid, and within the jurisdiction of this court, in, on, upon, and across a certain public highway, common- ly called , unlawfully and injuriously erect, construct, place, set up, establish, maintain, keep up, and continue, and cause to be erected, constructed, placed, set up, established, maintained, kept up, and continued, an embankment composed of clay, dirt, stones, cinder, and wood, elevated about 6 feet above the level of said , and having placed thereon wooden ties on which are spiked tee-rails of metal, and did then and thence continually until the finding of this indictment, and still does there unlawfully and in- juriously permit and suffer the said embankment, wooden ties and ' metal tee-rails to be and remain in, on, upon, and across the said public highway, whereby the said public highway then and there was, has been, and is now obstructed, so that the citizens of the said commonwealth coinld not and have not been able since to pass and re- pass upon and use the said public highway, as they ought and of right should and were wont and accustomed to do, to the great damage and common nuisance of all the citizens of this commonwealth, going, passing, and repassing the said public highway, contrary to the form of the act of assembly in such case made and provided, and against the peace and dignity of tlie commonwealth of Pennsylvania. A. B., Witnesses. District attorney. A. B. CD. (Same indorsements on back of bill as in those preceding.) §§ 840-843] FORMS. 613 840. Bench warrant. Commonwealth of PennsylvawiAj County of ''*** To the sheriff or any constable of county; Greeting: Whereas, the grand jury on the day of , a. d. 19 , found a true bill of indictment, on complaint of Richard Eoe against John Doe for arson. This is therefore to command you to arrest the said John Doe and bring him before me at my office in , Pennsylvania, with- out delay, to be dealt with according to law. And have you there also this precept. Witness the Honorable A. B., president judge, at , this day of , 19 . A. B., [seal.] President judge. Attest, CD., Clerk court quarter sessions, etc. 841. Demurrer to indictment. And the said A. [the defendanf] in his own proper percon comes into court here, and having heard the said indictment read, says that the said indictment and the matters therein are, as therein alleged and set forth, not sufficient in law to compel him, the said A., to answer thereto [if the demurrer is special, add here, for that, etc., stating the specific objections in detail^ , and this he, the said A., is ready to verify. Wherefore, he prays judgment, and that by the court here he may be dismissed and discharged of the said indictment 842. Joinder in demurrer to indictment. And A., the district attorney, who prosecutes for the said common- wealth in this behalf, says that the said indictment and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said B. to answer to the same ; and this the said A. who prosecutes as aforesaid is ready to verify and prove the same as the court here shall direct and award. Wherefore, inasmuch as the said B. has not answered to the said in- dictment, or hitherto in any manner denied the same, the said A. for the said commonwealth prays judgment, and that the said B. may be convicted of the premises in the said indictment specified. 614 CEIMINAL AND PENAL PROCEDURE. [chap, xxxiu. 843. Motion to quash indictment. (State title of case.) The court is respectively moved to quash the bill of indictment found in this case for the following reasons: 1. Because one of the members of the grand jiiry who found the bill was disqualified, to wit: H. B., for the reason that he had, be- fore the meeting of the court, and after he had been summoned as a grand juror, been actively engaged in assisting the prosecution of the defendants by aiding and securing evidence for the common- wealth and was a member of an association organized for that pur- pose. 2. Because before the meeting of the grand jury he had contrilv uted time, effort, and money to employ detectives and attorneys in the effort to secure the indictment and conviction of the defendant. 3. Because before the meeting of the grand jury he had frequent conferences with detectives, witnesses, and members of the associa- tion with which he is connected, as aforesaid; was the secretary of said association ; received reports from said detectives^ and was the custodian thereof. 4. Because b€ifore the meeting of the grand jury he had been ac- tively engaged in securing witnesses who might support the charges which the commonwealth had preferred against the defendant. 5. Because Mrs. S. N., the wife of one of the defendants, was sum- moned as a witness before the grand jury and testiiied there in behalf of the commonwealth. 6. That the said defendants are ready to verify the averments con- tained in the above reasons in support of the motion to quash by clear aid satisfactory evidence from competent witnesses, and they offer to call the same and request that they be heard by the court. , 19 . A. B., CD., Attorneys for defendants. COXTNTT^ SS. Before me, the clerk of the court of quarter sessions in and for said county, personally appeared E. F., who, being duly sworn, de- poses and says that tlie averments made in the above reasons for the quashing of the bill of indictment in this case, as he is informed, be- § 844] FORMS. 615 ijeves, and avers, are true, and that he had no knowledge of the same until this day of , 19 . E. R Sworn and subscribed before me, this day of , 19 . M. K, Clerk of quarter sessions. 844. Petition to remove pending indictment to the supreme court. To the Honorable the judges of the supreme court of Pennsylvania : The petition of A. B., C. D., and E. F. respectfully represents that they are under indictment in the court of quarter sessions of the peace of county for various supposed offenses set out in said indictments, as follows: One of said indictments, to wit: No. [seiting forth} : Your petitioners are absolutely guiltless of each and every supposed offense, and have neither conspired nor attempted to conspire with any of the persons r.amed in said indictment, nor with any other person or persons, either to misappropriate and misuse the moneys of the People's Bank or the moneys of the conmionwealth, or to do any other imlawful act whatever, nor has your petitioner, said C. D., loaned out money contrary to law or entered into any agreement or agreements to derive any benefit or gain from the deposit of the same as is charged in said biU of indictment 'No. Your petitioners respectfully pray your honorable court to issue its -writ of certiorari to said court of quarter sessions to bring up said indictments in order that your honorable court may deal with the same in such way as will enable them to secure what it is impossible for them to secure in the present position of affairs in the courts in which said indictments are pending, namely, justice and a fair and impartial trial, which is guaranteed to them by the Constitution and laws of this commonwealth, and in support of their said prayer, aver as follows [give reasons'] : Your petitioners therefore pray for a rule to show cause why a writ of certiorari should not be issued by your honorable court, directed to the judges of the court of quarter sessions of the peace for the coun- ty of , requiring them to certify the record of said in- dictments against your petitioners into this court for siich action as shall secure to your petitioners a fair and impartial trial ; and fur- ther, to assign one of the judges of your honorable court to try the 818 CKXMINAL AND PENAL PROCEDURE. [chap, xxxiii. aforesaid indictments; and further, that all proceedings in the said court of quarter sessions be stayed in the meantime. (Affidavit as to truth of facts set forth.) A. B. CD. E. R 845. Order on petition. And now, this day of , 19 , it is ordered that a rule upon the commonwealth of Pennsylvania be served upon the district attorney of the coimty of , returnable on Satur- day, the day of , 19 , at a. m., to show cause why a writ of certiorari shall not be granted to bring into this court certain indictments and the proceedings connected therewith now pending in the court of quarter sessions of the peace for the county of , to sessions, Nos. , All proceedings in the court of quarter sessions of the peace to stay until further order of the court. (Signed) H. Q., Associate justice supreme court. H. W. W., Associate justice supreme court. 846. Answer. To the petition an answer is filed by the commonwealth. An il- lustration thereof is to be found in Quay's Petition, 189 Pa. 517. 847. Petition for change of venue. To the Honorable the judges of the court of oyer and terminer of county : The petition of C. D., defendant in the above-stated case, respect- fully represents : That at the sessions of the oyer and ter- miner for the county aforesaid, an indictment was found against him for the crime of murder, and that petitioner is informed and believes that he is so to be tried for said offense at the term of court next ensuing. That undue excitement exists throughout the said county against the petitioner [set forth facts regarding the same']. That on account of said undue excitement a violent public prejudice exists against petitioner, by reason of which circumstances a fair and impartial trial cannot be had in the county of Wherefore, your petitioner prays the court to order a change of venue §g 848, 810J FORMS. 617 in the said prosecution, in pursuance of tKe act of assembly in such case made and provided. CD. (Affidavit as to truth of facts set forth.) 848. Petition by indigent person for order for support. (Act June 13, 1836, P. L. 547, § 28.) To the Honorable the judges of the court of quarter sessions of county : The petition of J. H., of the township of , in the county aforesaid, respectfully represents: That your petitioner is a poor person, seventy-five years of age and unable to work or to procure a livelihood by any species of em- ployment ; that his wife is deceased some years, and that he has for some time past resided in the family of A. B., in the township afore- said ; that there are no persons nearly connected to him of sufficient ability to contribute to his support, except his two sons, C. H. and D. H., both of whom are residents of the township of B., said county, and severally possessed of some estate; that your petitioner has ap- l^lied to his said sons for an adequate allowance for his maintenance, but without satisfactory result Your petitioner, therefore, being obliged, under the circumstances, to avail himself of the provisions of the act of assembly in such case made, respectfully prays your honorable court to make an order di- recting the said C. H. and D. H. to contribute to the relief and main- tenance of your petitioner, in such sums and under such terms and conditions as the court may deem just and proper. J. H. (Affidavit) 849. Order for citation under the foregoing petition. Now, , 19 , the within petition having been presented and read, the court directs that a citation issue to the above-named C. H. and D. H., to appear and show cause, if any they have, why an order should not be made requiring them to contribute to the re- lief and maintenance of their fatiier, J. H., the petitioner, accord- ing to the prayer of his said petition. Returnable , 19 . By the court, M. :n'. 618 CRIMINAL AND PENAL PROCEDUEE. [chap, xxxm 850. Final order after hearing. ISTow, , 19 , the said C. H. and D. H., having ap- peared in compliance with the citation issued out of this court on , 19 , and the court, having heard the parties by them- selves and their counsel, on due consideration, order and direct that the said C. H. and D. H., each contribute the sum of seven dollars and fifty cents per month toward the relief and maintenance of their said father, J. H., payable monthly, on the first day of each and every month, beginning ,19 , on pain^ upon default, of forfeiture as provided by the twenty-eighth section of the act of assembly of June 13, 1836, in such ease. By the court, M. N. 851. Petition for nolle prosequi. Commonwealth of Pennsylvania vs. C. D. In the court of quarter sessions of county. ISTo. , ses- sions, 19 . Assault and battery. To the Honorable A. B., president and sole judge of the court of quarter sessions of county: The petition of C. D. respectfully represents that the prosecutor and the defendant have settled the above case and all damages for the injuries sustained have been fully satisfied. He therefore prays the court to grant leave to the district attorney to enter a rwlle prose- qui in the above case. And he will ever pray, etc. C. D. (Affidavit.) 852. Order for nolle prosequi. And now, ,19 , permission is given to the district attorney to enter a nolle prosequi in the within cases prayed for. By the court, A. B. And now, ,19 , a nolle prosequi is hereby entered in said cases. E. r., DiGtrict attorney. S§ 853, 854] FORMS. 619 853. Petition for continuance, Commonwealth of Peamsylvania vs. C. D. In the court of quarter sessions of county. No. , ses- sions, 19 . To the Honorable A. B., president and sole judge of the court of quarter sessions of county: The petition of C. D., defendant, by his attorney, E. E., respect- fully moves the court to continue the above-stated case because of the serious illness of the defendant, which malces it impossible for him to appear for trial. The certificate of his physician to this effect la hereto appended. l_Orj set forth whatever grounds exist.^ And he will ever pray, etc. E. F. (Aifidavit) (Certificate of physician appended.) 854. Petition for bill of particulars. In the court of quarter sessions of county. Iso. , ses- sions, 19 . Commonwealth of Pennsylvania vs. C. D. To the Honorable A. B., president and sole judge of the court of quarter sessions of county: The petition of C. D. respectfully represents that he has been in- dicted for embezzlement to No. , sessions, 19 . That the biU of indictment does not furnish to him sufficient partic- ulars as to the offense with which he is charged, to properly prepare his defense, and he, therefore, prays the court to direct the district attorney to furnish to him a biU of particulars in the said case. And he will ever pray, etc. (Affidavit) 0. D. 820 CRIMINAL AND PENAL PROCEDURE. [chap, xxxni. 855. Bill of particulars. Common ,T»alth of Pennsylvania vs. In the court of common pleas of county. No. , term, 19 . A. B. Commonwealth's bill of particulars. The commonwealth will prove on the trial of the above-stated case the following matters [^mention them]. CD., , 19 . District attorney. 856. Flea of not guilty. And the said A. B., by C. S., his attorney, comes into court here, and having heard the same indictment read, says that he is not guil- ty of the said premises in the said indictment above specified and charged upon him ; and of this the said A. B. puts himself upon the country, etc. This plea is usually entered by the words "Defendant pleads not guilty." 857. Joinder of issue. And A. B., district attorney of county, who prosecutes for the said commonwealth in this behalf, does the like. The issue is usually joined by the indorsement on the bill of indict- ment of the words "et de hoc liist. atty. similiter^ et issue." 858. Flea to the jurisdiction. And now, , a. d. 19 , W. J. C, in his proper person, cometh into court here, and having heard the said indictment read, says that the said court here ought not to take cognizance of the fel- ony in the said indictment specified ; because, protesting that he is not guilty of the same, nevertheless the said W. J. C. says that the felony in the said indictment specified is triable in the court of oyer and terminer of the county of , and not elsewhere; that the court here purporting to be the court of oyer and terminer of the coimty of is not such court, competent for the trial of the said felony, because the Honorable A. J., acting as president judge of the court here, is not now, nor ever has been, a judge of the court of oyer and terminer of county ; he, the said A. J.,. §§ 859-861] FORMS. 621 not having been elected a judge of the said court of coun- ty, according to the provisions of the Constitution of the common- wealth of Pennsylvania ; the county of , at the time of the election of the said A. J., if ever elected, formed no part of the ju- dicial district over which he, the said A. J., was elected to preside or act as a judge, but at the time of said election the said county of did belong to and form a part of the judicial district, composed of the counties of , , in which the Honorable J. N. C. was duly elected president judge. Wherefore, he prays judgment, if the said court now here will or ought to take cognizance of the indictnient aforesaid, and by the court here he may be dismissed or discharged, etc. {Clarh V. Com. 29 Pa. 130.) 859. Beplication to plea to jurisdiction. And hereupon A., the district attorney, who prosecutes for the said commonwealth in this behalf, says that, notwithstanding any- thing by the said B. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid: because he says that, etc. [setting out the matter relied on, and, if it is new matter, note, adding the verification; if not, the conclusion to the country; ihu^l, and this he, the said A., for the said com- monwealth, is ready to verify {_or, prays may he inquired of hy the country'] . Wherefore, he prays judgment, and that the said A. may answer to the said indictment. 860. Flea of misnomer in abatement. And B. [giving the true name], who is indicted by the name of A., in his own proper person comes into court here, and, having heard the said indictment read, says that his name is and from his nativity hitherto has been, B., by which name he has always been called and known ; without this, that he, the said B., now is or at any time hith- erto has been, called or known by the name of A., as by said indict- ment is supposed, and this he, the said B., is ready to verify. Where- fore, he prays judgment of the said indictment and that the same may be quashed. 861. Replication to plea in abatement. And hereupon A., the district attorney, etc., says that the said in- dictment, by reason of anything by the said 0. [the name the de- 622 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiil fendcmt claims in his flea] in his said plea ahave alleged, ought not to be quashed ; because he says that the said C, long before and at the time of the preferring of the said indictment, was and still is known as well by the name of B. {the name which the indictment gives him] as by the name of C. [to wit, at the parish aforesaid, in the county aforesaid] ; and this he prays may be inquired of by the country. 862. Fleas of former acquittal and former conviction. To simplify the common-law pleas of former acquittal and former conviction, the Penal Code provided that in such case it should be suificient for the defendant to state that he has been lawfully con- victed or acquitted, as the case may be, of the offense charged in the indictment. (Act March 31, 1860; P. L. 427, § 30.) This plea should be traversed by the commonwealth. Nul tiel rec- ord is not a good replication. {Com. v. Boyer, 8 Phila. 611.) 863. Plea of former jeopardy. And now the said A., having heard the said indictment read, and protesting that he is not guilty in manner and form therein charged against him, saith that the said commonwealth ought not further to prosecute the said indictment against the said A. ; because he saith, that, at court, begun and holden, at, etc., the jurors, of, etc [_set out the indictment m full] to which said indictment the said A. pleaded that he was not guilty of the offense therein charged against him; and thereof he put himself upon the country, and the said commonwealth did the like; and thereupon, at, etc., on, etc., a jury was duly impaneled to try the said issue, and thereby he was put in jeopardy under the said indictment; as by the record thereof more fully and at large appears. And the said A. further saith, that though no verdict was reached in said case, the failure was not owing to any consent by him, the said A., made or given, or any interposi- tion of Providence, or any other thing which in law should subject the said A. to be again put in jeopardy; and the record of the former jeopardy still remains and is in no way reversed or made void. And the said A. further saith that he and the A. mentioned in the said former indictment are one and the same person, and not other ; and that the said offense for which he now stands indicted is the same offense mentioned in the said former indictment, and not other. And this he is ready to verify. Wherefore, he prays judgment, and that §§ 864-867] FORMS. 623 by the court he may be dismissed and discharged from the said prem- ises in the present indictment specified. (Application of the plea of former jeopardy to specific cases will be found in McCreary v. Com. 29 Pa. 323, and Com. v. Clw, 3 Eawle, 498.) 864. Special pleas in bar. Special matters may be pleaded in bar of the indictment. Such follow in form those already given, with the special matter set forth therein. An illustration of such will be found in Com. v. Beed, 34 Pa. 275, 75 Am. Dec. 611. 865. Beplication to plea in bar. And hereupon A., the district attorney who prosecutes for the said commonwealth in this behalf, says that by reason of anything alleged in the said plea of the said B. above pleaded in bar, the said commonwealth ought not to be precluded from prosecuting the said indictment against the said B. ; because he says that, etc. [setting out the matter special to the case], and this the said A. for said common- wealth is ready to verify [or, prays may be inquired of by the courtr try']. Wherefore, he prays judgment, and that the said B. may be convicted of the premises in the said indictment specified. 866. Demurrer to plea. And A., the district attorney who prosecutes for the said common- wealth in this behalf, as to the said plea of the said B. by him above pleaded, says that the same and the matters therein contained in man- ner and form as the same are above pleaded and set forth, are not suf- ficient in law to bar or preclude the said commonwealth from prose- cuting the said indictment against him the said B., and the said commonwealth is not bound by law to answer the same ; and this the said A., who prosecutes as aforesaid, is ready to verify. Wherefore, for want of a sufficient plea in this behalf, he, the said A., for the said commonwealth prays judgment, and [where the case justifies] that tlie said B. may be convicted of the premises specified [or, m other cases, that the said indictment may be adjudged good, and the said B. may further answer thereto], 867. Joinder in demurrer to plea. And the said B. says that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude 634 CRIMINAL AND PENAL PROCEDURE. [chap, xxxin. the said commonwealth from prosecuting the said indictment against him the said B. ; and the said B. is ready to verify and prove the same as the said court here shall direct and award. Wherefore, inasmuch as the said A. for the said commonwealth hath not answered the said plea, or hitherto in any manner denied the same, the said B. prays judgment, and that the said indictment may be quashed, and by the court here he may be dismissed and discharged from the premises in the said indictment specified. 868. Petition for venire facias to summon corporation indicted. To the Honorable A. B., sole judge of the court of quarter sessions of county : The petition of 0. D., district attorney, respectfully represents that: At said court, sessions, 19 , a true bill of indictment was found by tlie grand jury, against the C. G. & W. Co., for nui- sance and maintaining a nuisance, by tearing down and destroying a stone bridge on the public road and obstructing said road with a dangerous wooden bridge, which said company still maintains un- abated. That said C. G-. & W. Co. is a corporation duly chartered by the commonwealth of Pennsylvania. That its appearance cannot be secured by the ordinary process of warrant of arrest, etc. ; but may be secured by a summons in the na- t.ure of a writ of venire facias. Your petitioner, therefore, prays the court that an order be made authorizing him to issue a summons out of the court of quarter ses- sions, directed to the sheriff of the county for service upon said de- fendant, to appear before said court, on Monday, the day of , next, to plead to and answer said bill of indictment. And he will ever pray, etc. CD., District attorney. COTTNTT, ss. 0. D., Esq., being duly sworn according to law, says that the facts set forth in the foregoing petition are true. CD. Sworn and subscribed before me, this day of , A. D. 19 J. K. Clerk of quarter sessions. |§ 869, 870] FORMS. 6!85 869. Order of eourt. And now, to wit, , 19 , after liearing the foregoing petition, it is ordered and decreed that leave be given to C. D., dis- trict attorney, to enter his praecipe for a summons, and that the clerk of the court of quarter sessions issue said summons, directing the sheriff of county to serve the same, requiring the C. G. & W. Co. to appear at the next court of quarter sessions of county, commencing on Monday, the day of , 19 , to plead to and answer said bill of indictment. By the court, A. B., P.J. 870. Venire facias to summon corporation. County, ss. The commonwealth of Pennsylvania; To the sheriff of county; Greeting: Whereas, at a court of quarter sessions held in and for the said county on the day of , a. d. 19 , a true bill was returned to No. , term, 19 , by the grand in- quest in and for said county of , against the P., H. & P. K. Co., charging the said P., H. & P. R. Co. therein with nuisance and maintaining a nuisance, a copy of which bill of indictment is hereto attached, properly marked ; And whereas, the said court of quarter sessions on the day of , 19 , on the application of the district attorney, made an order pennitting the issuing of a summons in the said case, now by virtue of the same. We command you that you summon the said P., H. & P. R. Co., so that it be and appear before our said court of quarter sessions, to be held at , in and for said county, on Monday, the day of , A. u. 19 , there to plead to and answer the commonwealth of Pennsylvania in the said bill of indictment, and have you then and there this writ. Witness the Honorable A. B., president and sole judge of said court, this day of , a. d. 19 . J. K, Clerk of the court of quarter sessions. (Attach copy of indictment with indorsements thereon.) Pa. Crim. Proc. — 40. «26 CRIMINAL AND PENAL PROCEDURE. [chap, xjcxiu. 871. Return of sheriff. , 19 . Writ returned served ,19 , on the C. G. & W. Co., defendant within named, by producing the original writ to J. H., president of said C. G. & W. Co., by producing to him the original writ and informing him of the contents, and by leaving with him personally a true and attested copy of this writ. So an- swers. Sheriff H. $1.64. Sworn this day of 19 , before me, S. J. H., Sheriff, Per J. W. K, Deputy sheriff. ■] J. L. D. 872. Appearance and entry of plea by corporation. Commonwealth ]In the court of quarter sessions in vs. I- and for county. Carlisle Gas & Water Oo; J No. , sessions, 19 . The C. G. & W. Co. in obedience to rule issued in the above-stated case and returnable day of , 19 , hereby ap- pears, and pleads to the bill of indictment, not guilty, reserving unto itseK the right to file a special plea if it deems best to do so. The C. G. & W. Co., By its counsel, A. B. , 19 . C. D. 873. Subpoena. CoUNTTj ss. The commonwealth of Pennsylvania to A. B. and C. D. ; Greeting: We command you and each of you that, setting aside all manner of business and excuses, you be and appear in your person before our judge at , at our county court of general quarter sessions of the peace there to be held, in the county of , on the day of , 19 , at 10 o'clock, in the forenoon of that day, to testify all and singular those things which you shall know in a certain indictment for arson pending and undetermined between the commonwealth of Pexmsylvania and Kichard Eoe on the part of §§ 874-8771 FOEMS. 627 the commonwealth. And this you are not to omit under the penalty of one hundred pounds. Witness the Honorable A. B., president judge, at , [seal.] the day of , a. d. one thousand nine hundred and C. D., Clerk court quarter sessions, etc. 874. Oath. You do swear by almighty God, the searcher of all hearts, that you will, etc., and that so you shall answer to God at the last great day. By the act of 1722, this could be taken by laying the hand upon and kissing the Book, or by lifting up the right hand and pronounc- ing or assenting thereto. By the act of 1895, it was made sufficient to lay the hand upon an open copy of the Holy Bible, or to lift up the right hand and pronounce the words as above given. (Act April 3, 1895, P. L. 32.) 875. Affirmation. You do solemnly, sincerely, and truly declare and affirm that, etc., and so you do affirm. 876. Oath of witness at trial or hearing. You do swear \_orj solemnly^ sincerely, and truly declare and af- firm] that the evidence which you shall give to the court and jury, in the issue now trying \_or, if before a justice, in the hearing now oeing had'], shall be the truth, the whole truth, and nothing but the truth. So help you God [^or, and so you do affirm]. 877. Oath of stenographer. State op Pennsylvania, CotTNTY. I, A. B., do swear [or affirm] that I will well and truly discharge the duties of stenographer in the several courts of the twelfth judicial district of Pennsylvania, according to law and to the best of my skill and abilities; so help me God [or, "and so I do affirm"]. A. B. Sworn and subscribed, the day of) , 19 , before me. ) C. D., Judge. 628 CRIMINAL AND PENAL PROCEDURE. [chap, xxxin. 878. Oath of interpreter. You, A. B., do solemnly swear [or affirm'] that you will well and truly discharge the office of interpreter in this court in the issue now trying, according to law and to the best of your skill and abilities. So help you God [or, and so you do affirm}. 879. Oath of juror in examination on voir dire. You do swear [or, solemnly, sincerely, and truly declare and af- firm] that you will true answers make to all such questions as shall be asked you by the court touching the matter now before them. So help you God [or, so you do affirm]. 880. Forfeiture of recognizance. ,19 . And now, ,19 , the defendant, E. F., being duly called and not answering, and the surety, G. H., being duly called on to bring forth the body of the said defendant, and failing to do so, the witliin recognizance is decreed and adjudged to be forfeited. Attest S. B., Clerk. 881. Petition to remit forfeited recognizance. To the Honorable the judges of the court of quarter sessions of county : The petition of A. B. respectfully represents: That your petition- er, on the day of last, was bound to the common- wealth of Pennsylvania in a recognizance aclmowledged in this court in the sum of three hundred dollars, conditioned that 0. D. should be and appear at the then next session of said court, to answer the charge of , and such other matters as should be then and there lawfully objected against him, and not depart the court with- out leave ; that the said C. D. did not appear, according to the condi- tion of said recognizance, whereupon the same was forfeited in this court. Your petitioner further represents that [set out the facts upon which the application is hosed]. He, therefore, prays the court to remit the forfeiture of said recognizance, or to moderate the same, as to the court may seem just. A.B. (Affidavit) §§ 882. 883] FORMS. 882. Points and answers. Point 1. There T)eing no testimony in the case to identify or con- nect defendants, A. and B., with the offense, except that of C. and D., self-confessed accomplices, their testimony standing without cor- roboration in a single fact connecting the defendants, A. and B., with the offense charged, the court should charge and advise the jury to acquit the said defendants. Answer. The first point is refused and therefore will not be read to you. Point 2. "The evidence of 0. and D., who are self-confessed par- ticipators in the crime charged in this indictment, coming as it does from a polluted source, should be received with great caution and closely and doubtingly examined by the jury." Answer. This point is affirmed. We will further say that an ac- complice occupies a position of disrepute, yet the law makes him a competent witness as a matter of necessity, because otherwise suf- ficient evidence could not be obtained in certain cases to bring the guilty to justice. The degree of credit to be given to his testimony is a matter exclusively for the jury, who should weigh what he has said just as they do the testimony of smy other witness, bearing in mind the fact, however, that he is a self-confessed criminal, and that by reason thereof his testimony should be received with great caution, and carefully and doubtingly scrutinized by the jury. Point 3. "The presumption of law is that every one has conformed to the law, and the defendants in this case are presumed, as a mat- ter of law, to be innocent until the contrary is shown beyond all rea- sonable doubt." Answer. This point is affirmed. 883. Verdict of jury. Commonwealth vs. Carlisle Gas & "Water Company, Defendant In the court of quarter sessions of the peace of county, Pa. No. , ses- sions, 19 . We, the jury impaneled and sworn to try the issue joined between 630 CRIMINAL AND PENAL PKOCEDURE. [chap, xxxiii. the commonwealth of Pemisylvania and Carlisle Gas & Water Com- pany, find defendant Carlisle Gas & Water Company— ^Not Guilty. Date, , 19 . A. B., Foreman. 884. Special verdict. We, the jurors impaneled in this case, find the following facts: On ,19 , the C. S. Bank was the holder and owner of a promissory note made by the defendant and indorsed by J. E., of which the following is a copy: $1,600. , 19 . Ninety days after date, I promise to pay to the order of J. E., at the C. S. Bank, sixteen hundred dollars, without defalcation, for value received. S. K. E. Credit the drawer. J. E. Indorsed, J. E. Said note was the last of a number of like notes, given during a period of three years, each being a renewal of the one immediately preceding it, which had been discounted by said bank, the defend- ant having received the proceeds thereof. On , 19 , defendant called at said bank's place of business, found there G. B., Esq., the cashier of the bank, and had a certain business transaction with him respecting said note of , 19 , and the renewal thereof. Defendant then paid to the cashier the discount for a renewal of the last-menticned note, the discount, which would have been due on a similar note, for an- other period of ninety days, that is $25.07, and gave to said cashier another note of which the following is a copy: $16.00. , Pa., , 19 . Ninety days after date, I promise to pay to the order of J". E., at the C. S. Bank, sixteen dollars, without defalcation, for value re- ceived. S. K. E. Credit the drawer. J. E. Indorsed, J. E. § 884] FORMS. 68i' Thereupon said B. delivered to the defendant said note, of date of , 19 , and then defendant left the bank, taking with him the said note so given to him. Said B., when he accepted said note for sixteen dollars, believed that it was for sixteen hundred dollars, and because he so believed and for no other reason, he was willing to surrender and did surren- der to the defendant said note of , 19 . He did not discover until about an hour after defendant had left the bank that it was for sixteen dollars only. The bank afterwards requested the defendant to pay sixteen hundred dollars ; that is, after it would have been due if said note for sixteen had been written for sixteen hun- dred dollars. Defendant never paid said sum of sixteen hundred dol- lars, nor any part thereof. The bank never again received said note of , 19 . The bank still holds said note for sixteen dollars. Defendant said nothing to the cashier as to what amount the note of , 19 , was written for. When defendant delivered to the cashier the note for sixteen, dol- lars, he knew that it was for sixteen, and not for sixteen hundred, dollars; that the cashier in giving up the note for sixteen hundred dollars was mistaken in that he had overlooked the fact that it was for sixteen dollars only; defendant knew when the note for sixteen hundred dollars was surrendered to him, that the cashier believed he had received another note for sixteen hundred dollars, and that if the cashier had not so believed he would not have given up the note. The defendant made and presented the note for sixteen dollars Avith the deliberate design and intention to defraud said bank by ob- taining from it said note for sixteen hundred dollars by giving in its place one for sixteen dollars only, and with the design and inten- tion that the officers of the bank should overlook the fact the note of- fered was for sixteen dollars only, and that by reason of such over- sight and mistake should give up the note for sixteen htmdred dol- lars. If the facts stated and the acts of the defendant above set forth are sufficient in the opinion of the court to warrant a conviction of the de- , fend ant of the crime of larceny, then the jury do say that he, the de- fendant, is guilty of larceny in manner and form as he stands in- dicted. If not sufficient, then the jury find the defendant not guil- ty. (Com. v, Eichelherger, 119 Pa. 254, 13 Ad. 422.) , 688 CRIMINAL AND PENAL PROCEDURE. [chap, xxxio. 885. Motion in arrest of judgment. And now, after verdict against the said A., and before sentence, comes the said A. in his own proper person [^or, by X., his attorney'^, and moves the court here to arrest judgment herein, and not pro- nounce the same, because of manifest errors in the record appear- ing; to wit {^specifying them'], and because no judgment against him, tlie said A., can be la-wfully rendered on said record. 886. Motion for new trial. The court is respectfully moved to grant a new trial in the above- stated case for the following reasons: 1. Because the verdict is against the evidence. 2. Because the verdict is against the weight of the evidence. (Give any other reasons that may exist.) A. B., CD., E. F., Attorneys for defendants. , 19 . 887. Sentence of death. And now, ,19 , the sentence of the law is that you, A. B., be taken hence by the sheriff of county, to the jail of said county, and from there to the place of execution within the walls or yard of said jail, and that you be hanged by the neck until you are dead, and may God have mercy on your soul. 888. Mandate of the governor to execute death sentence. In the Name and by Authoeity or the Commonwealth of Pennsylvania. [seal.] Executive Depaetment. To A. C, Jr., Esquire, high sheriff of the county of , or your successor in oifice ; Greeting : Whereas, at a court of oyer and terminer and general jail delivery held at , in and for the county of , sessions, 19 , a certain P. D. was tried upon a, certain indictment § 889J FORMS. 888 charging tim with the crime of murder, and was on the day of , Anno Domini 19 , found guilty of murder of the first degree, and was thereupon, to wit: on the day of , Anno Domini 19 , sentenced by the said court, that he, the said P. D., be taken hence to the jail of the county of ,whence he came, and thence to the place of execution, and that he be there hanged by the neck until he is dead. Now, therefore, this is to authorize and require you, the said A. C, Jr., Esquire, high sheriff of the coxmty of as aforesaid, or your successor in office, to cause the sentence of the said court of oyer and terminer and general jail delivery to be executed upon the said P. D. on the day of , Anno Domini 19 , be- tween the hours of 10 o'clock a. m. and 3 o'clock p. m., in the manner directed by the seventy-sixth section of the act of general assembly of this commonwealth, approved the thirty-first day of March, Anuo Domini one thousand eight hundred and sixty, entitled "An Act to Consolidate, Kevise, and Amend the Laws of this Commonwealth Re- lating to Penal Proceedings and Pleadings;" and for so doing this shall be your sufficient warrant. Given under my hand and the great seal of the state, at [seal.] the city of Harrisburg, this day of , in the year of our Lord 19 , and of the commonwealth the D. H. By the Governor, J. E. B., Deputy secretary of the commonwealth. 889. Beturn of sheriff to mandate. In the matter of the execution of P. D., convicted of murder of the first degree in the court of oyer and terminer and quarter sessions of the peace for the city and county of To his Excellency, the governor of the commonwealth of Pennsylva- nia: I do hereby certify and return that in obedience to the command contained in a certain warrant to me directed, dated the day of ^ A. D. 19 ,1 caused the sentence of death by hanging by the neck, to be executed upon the body of the said P. D. within the 684 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. •walls of the comity prison, in the county aforesaid, on the day of , A. D. 19 , at o'clock and minutes. The residue of the execution of said warrant will appear in a schedule hereto annexed. So answers, A. C, Jr., Sheriff. 890. Oath of sheriff. Commonwealth ] In the court of oyer and terminer and quarter vs. ^ sessions of the peace for the city and county Dadario. J of The said defendant convicted of murder of the first degree. Oath of A. C, Jr., sheriff of the county of , in compli- ance with the provisions of § 76 of an act passed March 31, 1860, entitled "An Act to Consolidate, Revise, and Amend the Laws of this Commonwealth Eelating to Penal Proceedings and Pleadings." City and Coujsttt of , ss. A. C, Jr., Esq., sheriff of the county of , being duly sworn according to law, saith that in obedience to tihe command con- tained in a warrant of the governor of the commonwealth of Penn- sylvania, dated the day of , a. d. 19 , and di- rected to this affiant as sheriff aforesaid, he did cause the sentence of death by hanging by the neck to be executed upon the body of the above-named P. D., within the walls of the county prison, in the county aforesaid, on the day of , a. d. 19 , at o'clock and minutes. A. C, Jr. Sworn to and subscribed before me, this ) day of , A. D. 19 .J 891. Oath of jurors. In the matter of the execution of P. D., convicted of murder of the first degree. [Here names of jurors are inserted.'] being duly sworn, according to law, do depose and say, that as jurors, summoned by A. C, Jr., Esq., sheriff of the county |§ 892-895] FORMS. 635 of , they will witiiess the execution of P. D., and certify the time and manner of said execution, according to law. (Signatures of the jurors.) Sworn to and subscribed before me, this ) day of , A. D. 19 . \ A. C, Jr., Sheriff. 892. Certificate of jurors. county prison, , 19 . In the matter of the execution of P. D., convicted of murder of the first degree, we, the undersigned jurors, summoned by A. C, Jr., Esq., sheriff of the county of , to witness the execution of P. D., first having been duly qualified, do hereby certify that we were present and saw the said P. D. executed by hanging by the neck, within the walls of the county prison, in at o'clock and minutes, on Tuesday, the day of , A. D. 19 , in pursuance of the provisions of the act of assembly in such case made and provided. (Signatures of the jurors.) 893. Sentence for larceny. The sentence of the court is that the defendant pay a fine of fifty dollars, restore the property stolen, if not already restored, or pay the value thereof to the owner, pay the costs of prosecution, and suf- fer imprisonment in the Eastern Penitentiary for the period of one year and four months. 894. Sentence for nuisance. The sentence of the court is that the defendant A. B. pay a fine of one dollar to the commonwealth, the costs of prosecution, and abate the nuisance within thirty days from this date. 895. Sentence for fornication and bastardy. The sentence of the court is that the defendant pay a fine of six cents and costs of prosecution, pay to the prosecutrix the sum of twenty dollars lying-in expenses, and the sum of five dollars on the first of each and every month hereafter for the period of five years. And to enter into a recognizance with surety in the sum of $300 for ^8 CRIMINAL AND PENAL PROCEDURE. [chap. xxxm. the faithful compliance ■with this sentence, and stand committed un- til complied with. 896. Commitment for nonpayment in fornication and bastardy. And now, ,19 , it appearing upon a hearing in this case that the defendant has failed to comply with the order of the court to pay a weekly sum of two dollars to C. D., he is hereby com- mitted to the custody of the sheriff until further order, subject to be released upon entering into a recognizance in the sum of $200 with surety to be approved by the clerk of the court, conditioned to comply with the terms of the sentence imposed upon him. By the court, A. B. 897. Sentence for forcible entry and detainer. The sentence of the court is that the defendant, A. B., pay a fine of twenty-five ($25) dollai's and the costs of prosecution, and make restitution of the lands and tenements detained, and to give a bond and stand committed until the above sentence is complied with. 898. Sentence for surety of the peace. Sentence the defendant A. B. to vacate the premises of the prose- cutrix within five days from date, to keep the peace towards all citi- zens, especially the prosecutrix, for the period of two years, and en- ter into his own recognizance in the sum of two hundred dollars for the faithful performance of the court's sentence. 899. Sentence for desertion. Sentence the defendant A. B. to pay to his wife the sum of two dollars on Saturday of each and every week, first payment to be made on Saturday, , 19 \_or^ to provide a home for his wife'\, and to enter into a recognizance with good and sufficient sureties in the sum of two hundred dollars, conditioned to comply with the sen- tence of the court and keep the peace especially towards his family. !,^00. Bond of indemnity to directors of the poor for fulfilment of sen- tence in bastardy case. Know all men by these presents, that we, A. and B., of the bor- ough of , county of , and state of Pennsylva- § 901] FORMS. 637 nia, are Iield and firmly bound unto the directors of the poor and house of employraent of county, etc. Whereas, the above-bounden A. B. was, at tlie sesvsions of the quarter sessions of the peace in and for the said county last past, convicted of having begotten upon the body of a certain C. a bastard child [^which was bom on the day of , 19 ], and was sentenced by said court to pay the sum of, etc. \_reciting terms of sentence^, and to give security to the di- rectors of the poor, etc., in the sum of five hundred dollars to indem- nify the county of against the support and maintenance of said child during the period of five years aforesaid, according to the terms of said sentence : Now, the condition of this obligation is such that if the above-bounden A. B., his executors, or administra- tors shall well and truly observe and fulfil the terms and require- ments of the order and sentence of the court as aforesaid, then the above obligation to be void ; otherwise to be and remain in full force and virtue. A. [seal. J Sealed and delivered, etc. B. [seal.] 901. Bond of indemnity to directors of the poor for fulfilment of order in desertion case. Know all men, etc. [as in form of bond in bastardy case above, to recital^ . Whereas, at a court of quarter sessions of the peace held in and for the said county of , on the day of , 19 , upon a complaint made to said court against the said A. 3., charging him with deserting his wife, M. B., and his minor children, without reasonable cause, the court, upon hearing of the said com- plaint, ordered the said A. B. to pay toward the support and main- tenance of his said -wife and children the sum of dollars, to the directors of the poor, etc., to indemnify the county of against the support and maintenance of the said M. B. and the minor ehildren of the said A. B., in case they should become chargeable to the county during such period : l^ow, the condition of this obliga- tion is such that if the above-bounden A. B., his executors, or admin- istrators shall well and truly comply with the terms and conditions of the order of the court as aforesaid, then this obligation to be void ; otherwise to be and remain in full force and virtue. A. [seal.] Sealed and delivered, etc. B. [seal.] 888 CRIMINAL AND PENAL PROCEDURE. [chap. xsxm. 902. Becognizance for support of bastard child. In the court of quarter sessions of the peace for the county of [Title of Case.'] We ajid each of us do acknowledge that -we severally owe unto the commonwealth of Pennsylvania the sum of four himdred dollars, lawful money of the United States, to be paid to the said common- wealth ; conditioned that if A. B., the said defendant, pay each and every week the sum of one dollar and twenty-five cents to C. D. for the maintenance of her bastard child, until the said. child shall ar- rive at the age of seven years, if it shall so long live, or until such further order of the court as may be made in the premises, and abide the order of the said court without default, then this recognizance to be void and of no effect ; otherwise to be and remain in full force and virtue. Taken, etc. (A similar form is used where a recognizance is given in desertion proceedings.) 903. Order to destroy gambling device. , 19, it is ordered that the gambling device or apparatus taken in this case, and produced in open court at the time fixed for trial, shall be destroyed by the janitor in the presence of the clerk of the court. By the court, A. B. 904. Sentence prosecutor to pay costs. The sentence of the court is that the prosecutor pay the costs> or give security to pay the same in ten days, and stand committed un- til this sentence is complied vsrith. 905. Commitment to county jail. In the court of quarter sessions of county, of sessions, 19 . Commonwealtb ] Indictment larceny. True Bill , 19 , Defendant pleads vs. ■ not guilty , 19 . Tried by jury and verdict guilty. Richard Eoe. ,19 . The court sentence the defendant Richard Roe to pay a § 9061 FORMS. 689 [seal.] fine of one hundred dollars to the commonwealth, pay the costs of prosecution, restore the property stolen, if not al- ready restored, or pay the owner the full value thereof, and undergo an imprisonment in the county jail at , Pennsylvania, for and during the period of one year, there to be kept, fed, clothed, and treated as the law directs, and stand committed until the sentence be complied with. Per Curiam. State of Pennsyxvawia, County. ^ I, A. B., clerk of the court of quarter sessions in and [seal.] for said county, hereby certify that the above and forego- ing is a true and correct transcript of the sentence of the court in said case, so full and entire as the same remains of record in my office. In testimony whereof, I have hereimto set my name and affixed the seal of said court^ at , this day of , 19 . A. B., Clerk. 906. Commitment to Eastern Penitentiary. In the court of quarter sessions of county, of sessions, 19 . Indictment burglary. True Bill , 19 . Defendant pleads vs. \ not guilty. Tried by jury and verdict guilty. Eichard Doe. 19 . J ,19 . The court sentence the defendant Eichard Roe to pay a [seal.] fine of one hundred dollars to the commonwealth, pay the costs of prosecution, restore the property stolen, if not al- ready restored, or pay the owner the value thereof, and undergo an imprisonment in the Eastern Penitentiary [situate in the city and county of ], for and during the period of eighteen months, there to be kept, fed, clothed, and treated as the law directs, and stand committed until the sentence be complied with. Per Curiam. Commonwealth 640 CRIMINAL AND PENAL PROCEDURE. [chap, xxxni. State of Pennsylvania, ) County. j I, A. B., clerk of the court of quarter sessions in and [seal.] for said county, hereby certify that the above and forego- ing is a true copy and correct transcript of the sentence of the court in said case, so full and entire as the same remains of rec- ord in my oiEce. In testimony whereof, I have hereunto set my name and affixed the seal of said court, at , this day of , 19 . A. B., Clerk. 907. Commitment to Pennsylvania Industrial Reformatory. In the court of quarter sessions of ' county, of sessions, 19 . Commonwealth ] Indictment arson. True Bill , 19 . Defendant p vs. ■ not guilty. Tried by jury and verdict guilty. Eichard Eoe. 19 . ,19 The court sentence the defendant Richard Hoe to be com- [sEAL.] mitted to the care and guardianship of the managers of Pennsylvaoaia I. E. at H., Pennsylvania, there to be kept, fed, clothed, and treated as the law directs, and stand committed un- til the sentence be complied with. Per Curiam. State of Pennsylvania, } County. f I, A. B., clerk of the court of quarter sessions, in and [seal.] for said county, hereby certify that the above and forego- ing is a true copy and correct transcript of the sentence of the court in said case, so full and entire as the same remains of rec- ord in my office. In testimony whereof, I have hereunto set my name and affixed the seal of said court, at , this day of , 19 . A. B., Clerk. $§ 908-910] FORMS. 641 908. Petition of sheriff to transfer insane inmate. To ^Jie Honorable the judges of the court of common pleas of co'JTity : I, A. B., warden of the jail of the said county, do hereby certify upon my solemn oath [or affirmation] that I believe C. D., a prisoner now in confinement in the said jail, under sentence, is insane, and "Jierefore request that he be removed to a hospital for the insane. A. B. Sworn [or affirmed] and subscribed this ) day of > 1!^ J before me.j K. S., [seal. J Clerk. (Or the petition may be by or on behalf of the prisoner.) 909. Order of court on petition. ^ow, , 19 , E. E., M. D., G. H., Esq., and J. K. are hereby appointed commissioners to inquire concerning the mental condition of C. D., above named, and report to the court. By the court, M. K, President judge. 910. Report of commissioners. To the Honorable the judges of the court of common pleas of county : The undersigned, commissioners appointed by the court to inquire concerning the mental condition of C. D., a prisoner in confinement in the jail of said county, respectfully report: That we personally examined the said C. D., and after such ex- amination and hearing his statement, and the statements of various persons having knowledge of his actions and conduct, do find that the said C. D. is of unsound mind, and that his case is, in our opinion, a suitable one for treatment in a hospital for the insane. [Any additional facts wM,y he added.] EespectfuUy submitted. (Signed by commissioners.) (Date.) (The general act of 1883 requires the certificate of two physi- cians.) Pa. Crim. Proc. — 41. 648 CRIMINAL AND PENAL PROCEDURE. [chai-. xxaii. 911. Commitment to asylum by court. Now, , 19 , the foregoing report of the commission appointed to inquire concerning the alleged insanity of 0. D., there- in liamed, and finding thereon, are approved ; and it is directed that the said C. D. be committed to the care and custody of the superin- tendent of the Pennsylvania State Lunatic Hospital at , to be there kept and detained until the further order of the court. M. K, President judge. [SEAI_] 912. Commitment to local hospital for the Insane. Court of Oyer and Terminer and Quarter Sessions of the Peace in and for County of : The following is an order of the court, in the matter of Richard Hoe, a lunatic, and now, to wit, on the day of , A. D. 19 , the court orders and decrees that the within-named Rich- ard Roe be taken to the county hospital for the insane, and be detained and supported there at the expense of the county of Cumberland so long as he shall continue of unsound mind or until he shall be discharged therefrom by due process of law. In witness whereof, I have hereunto set my hand and [seal.] the seal of said court this day of , a. d. 19 . A. B., Clerk. 913. Petition for discharge under the insolvent laws. To the Honorable the judges of the court of common pleas of county : The petition of A. B., of the county aforesaid, respectfully repre- sents : That he was, on the day of last past, com- mitted to the jail of the said county, and is now confined therein, by virtue of a certain conxmitment [or, other process, settirvg forth the samel, and that your petitioner is poor and insolvent; he therefore prays that he may be afforded the relief provided for insolvents by the laws of this commonwealth, and that upon his appearance before your Honors, and making due proof that he is entitled to his dis- charge from confinement as an insolvent, he may be discharged ac- cordingly. (Affidavit to truth of facts.) A. B. §g 914, 915] FORMS. 648 914. Bond for discharge under the insolvent laws. Know all men by these presents, that we, A. B., of , and C. D., of the borough of , are held and firmly bonnd unto , of the commonwealth of Pennsylvania, in the sum of dollars, lawful money of the United States, to be paid to the said commonwealth, its attorneys, or assigns, to which pay- ment well and truly to be made and done we bind ourselves, our heirs, executors, an.d administrators, and every of them, firmly by these presents. Sealed with our seals, and dated the day of ,19 . Whereas, the above-bounden A. B. has been arrested and detained in the county aforesaid by vii-tue of a sentence of the court for the payment of a fijie of $100, and the costs of prosecution. And, where- as, the said A. B. has made application to the judges of the court of common pleas of the said county for the benefit of the act of assem- bly in such case made and provided extending relief to insolvent debtors : Now, the condition of this obligation is such that if the said A. B. shall duly appear at the next term of the said court, to be held at , on the Monday of next, and then and there present to the said court his petition for the benefit of the insolvent laws of this commonwealth, and comply with all the requi- sites of the said laws, and abide the orders of the said court in his behalf therein, or, in default thereof, or, in case he fail to obtain his discharge as an insolvent debtor, that he shall surrender himseK to the jail of said county, then this obligation to be void; otherwise to be and remain in full force and virtue. A. B. [seal.] 0. D. [seal.] Sealed and delivered, etc. 915. Petition of prosecutor sentenced to pay costs for discharge. To the Honorable A. B., president and sole judge of the court of common pleas of county: The petition of C. D. respectfully represents that he was the pros- ecutor in the case of Commonwealth vs. , sessions, 19 . That the bill was ignored by the grand jury, and the costs placed upon the prosecutor ; and that the prosecutor has been sentenced by the court to pay the costs of prosecution. That your petitioner is insolvent and utterly unable to pay the 614 CEIMINAL AND PENAL PROCEDURE. [chap, xxxin. costs and unless relieved of tkem will be compelled to remain in the custody of the sheriff. He therefore prays that in order to secure his discharge he may be permitted to give bond to the commonwealth with such surety as your Honor may approve, agreeably to the act of assembly entitled "An Act or Supplement to an Act for the Belief of Insolvent Debt- ors to Take Security and Discharge Insolvent Debtors from Arrest" And he will ever pray, etc. CD. State of Penitstlvania, } CoUTiTTY. j Before me, a notary public in and for the said county and state, personally appeared C. D., who, being duly sworn according to law, deposes and says that the facts set forth in the foregoing petition are true. And further saith not. C. D. Sworn and subscribed before me, this ) day of , 19 . j (Attach bond as in case of defendant.) 916. Order on petition. And now, the day of , 19 , the within petition being approved, and C. D., the petitioner, having given security as provided by law to appear and apply for the benefit of the insolvent laws, the sheriff is directed to discharge him forthwith from his cus- tody, for which this shall be his warrant. A. C. 917. Petition for leave to discharge under act of 1887. To the Honorable the judges of the court of quarter sessions of county : The petition of A. B. respectfully represents: That at the sessions, 19 , of said court, petitioner was sentenced, upon a conviction for larceny, to pay a fine of ten dollars and the costs of prosecution, and to undergo an imprisonment of three months in the jail of said county, which said term has now fully expired, but your petitioner, by reason of financial inability, bas not and cannot pay the amount of said fine and costs ; that he §§ 918, 9197 FORMS. 645 has no property or estate whatsoever out of which to pay the same \_or, "that he has made under oath duplicate schedules of all his prop- erty, real, personal, and- mixed, so far as he could ascertain the same, one of which has been filed among the papers of the said prison and the other with the cleric of this court"']. He therefore prays your honorable court to make an order upon the commissioners of the said county to discharge him from his imprisonment, according to the provisions of the act of assembly in such case made and provided. A. B. (Affidavit to truth of petition.) 918. Order of court for discharge under act of 1837. Commonwealth of Pennsylvania] Quarter sessions of vs. V county, No. , ses- A. B. J sions, 19 . And now, ,19 , the said defendant having presented to the court an application under the act of May 6, 1887, for his dis- charge from imprisonment in the county jail in default of payment of fine and costs in the above case, and the same being approved by the court, you are hereby aiithorized forthwith to dis- charge him upon his compliance with the requirements of said act, provided you are of opinion that he has no means wherewith to pay said fine and costs, or any part thereof. C. D., Judge. To the commissioners of county. 919. Appeal from taxation of costs. Commonwealth of Pennsylvania] In the court of quarter sessions of vs. J- county. A. B. J N'o. , term, 19 . In the matter of the taxation of costs in the above case. Taxation of Costs. ,19 , A. B., defendant in above case, hereby appeals from the taxation of costs as made by C. D., clerk of the said court of quarter sessions of county. State of Pennsylvania, Before me, the clerk of the court, in and for the said county and County op 646 CRIMINAL AND PENAL PROCEDURE. [chap, xxxin. state personally came A. B., who, being duly sworn, deposes and says that the above appeal is not taken for the pm-pose of delay, but be- cause the petitioner believes that injustice has been done him. A.B. Sworn and subscribed before me, this) day of , 19 .) (Attach here the specifications of error alleged on the part of the clerk of the courts, in the taxation of costs.) 920. Appeal and ai&davit. In the superior court of Pennsylvania for the eastern district Commonwealth of Pennsylvania Plaintiff, vs. Richard Eoe, Defendant, Court of quarter sessions of the county of , sessions, 19 . Ifo. Enter appeal on behalf of Eichard Eoe from the sentence and judgment of the court of quarter sessions of the county of To C. G., Prothonotary Sup. Ct, E. D. COUXTY OF , SS. Richard Roe, being duly sworn, saith that said appeal is not taken for the purpose of delay, but because appellant believes that he has suffered injustice by the sentence and judgment, from which he ap- peals. Sworn and subscribed this 7 day of , A. D. 19 .J 921. Praecipe for certiorari on appeal. In the superior court of Pennsylvania for the eastern district Commonwealth of Pennsylvania vs. Richard Roe, Appellant. Issue certiorari to the court of quarter sessions of the county of to bring up record and proceedings in a certain action in Certiorari to the court of quarter sessions of the county of , of sessions, 19 . No. FORMS. 647 said court, No. sessions, 19 , wherein the common- wealth of Pennsylvania is plaintiff and Eichard Eoe is defendant. Eeturnable to next term. Sec. Eeg. To C. S. G., Proth'y Sup. Court, E. D. John Doe, Attorney for appellant Certificate of bail. I certify that E. E., G. H., and J. K. are sureties in the within case in the sum of five hundred dollars. M. K, Prothonotary. 922. Recognizance on appeal. In the superior court of Pennsylvania for the eastern district. Commonwealth of Pennsylvania 1 . , - ,, , . " Appeal irom the court oi quarter sessions for the county of , of sessions, 19 . No. vs. Eichard Eoe. We, Eichard Eoe, W. S., and A. W., severally acknowledge to owe the above-named commonwealth of Pennsylvania the sum of five hundred dollars, upon condition that the above-named Eichard Eoe prosecutes his appeal with effect ; and, if the judgment be affirmed, or the appeal be discontinued or nonprossed, that he pay the debt, damages, and costs adjudged or accruing upon such appeal and all other damages and costs that may be awarded upon such appeal, or else we will do it for him. Eichard Eoe [seai,.] W. S. [seal.] A. W. [seal.] Taken and acknowledared this ) day of , A. D. 19 . ) 923. Proof of service of appeal to superior court. In the court of quarter sessions of county, state of Penn- sylvania. Commonwealth of Pennsylvania! Appeal of A. B. from the judg- e's, j- ment of said court, to No. , A. B., Defendant. J sessions, 19 . To E. E., Esq., and G. H., Esq. : Gentlemen : You are hereby notified that an appeal to the superior court of Pennsylvania has been taken in this case. X. L. ,19 . Attorney for appellants. 648 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. State of Peniisylvania, ) County of . J ' K. L., being duly sworn, saith that he served the original notice of which the above is a copy, on the above-named E. F. and G. H., attorneys for appellee. K. L. Sworn and subscribed before me, this ) day of , 19 . ) 924. Writ of error from supreme court. Easteew District of Pennsylvania, 1 City and County of . j * The commonwealth of Pennsylvania; To the justices of the [seat..] court of oyer and terminer for the county of ; Greeting : We, being willing for certain causes to be certified of the matter of the appeal of A. B. from the judgment and sentence in No. , term, 19 , wherein the commonwealth of Pennsylvania was plaintiff, and A. B. was defendant, before you, or some of you, depending, do command you, that the record and proceedings afore- said, with all things touching the same, before the justices of our supreme court of Pennsylvania, at a supreme court to be holden at , in and for the eastern district, the first Monday of next, so full and entire as in our said court before you they remain, you certify and send, together with this writ, that we may further cause to be done thereupon that which of right and ac- cording to the laws of this state ought. Witness the Honorable E. P., doctor of laws, chief justice of our supreme court at , the day of , in the year of our Lord 19 . M. K, Prothonotary. 925. Certificate to record sent np. To the Honorable the judges of the supreme court of Pennsylvania, sitting in and for the eastern district: g§ 926. 937] FORMS. 649 The record and proceedings, and all things touching the same, so full and entire as before us they remain, we certify and send, as within we are commanded. J. B., [SEAL.J President j«dge. K. W., [SEAL.J Additional law judge. 926. Petition to make appeal a supersedeas. Commonwealth of Pennsylvania It, ,. In the court oi quarter sessions for the county of JN o. , ses- . -D sions, 19 . To the Honorable J. E. B., associate justice of the superior court of Pennsylvania [or^ to the lower court, as the case may he'] : The petition of A. B., the defendant in above case, respectfully represents : That at a court of quarter sessions held in and for the said county of on the day of , 19 , he was con- victed upon an indictment for the crime of larceny, and on the day of , 19 , his motion for a new trial was denied, and he was sentenced to pay a fine of $100, and to undergo an imprison- ment of twelve months in the Jefferson county jail. That on the trial of your petitioaier, the court erred [^set forth the errors'] . That on the day of an appeal was taien to your honorable court from the judgment and sentence of the said court of quarter sessions. That your petitioner prays that an order may be granted making said appeal a supersedeas to stay the sen- tence imposed, until the said appeal can be determined and disposed of, upon such conditions and terms as your honorable court may see fit to impose. A. B. (Affidavit.) 927. Order for supersedeas. And now, ,19 , it is ordered that the appeal in this case shall operate as a supersedeas, upon the defendant entering into a recognizance in the sum of one thousand dollaM ($1,000). By the court 600 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii. 928. Cover of paper book. In all cases the cover of paper book, whether of appellant or appel- lee, shall contain: 1. The title of the case in the superior court. 2. The term and number. 3. The place ■where the appeal is returnable. 4. The county in which the appeal is taken. 5. The title of the court below. 6. The words "Paper Book of Appellant," or as the case may be. 7. The names of all the counsel for the party whose book it is. 8. An index. 929. Contents of paper book. In all cases where the appeal is from a judgment on a verdict, the paper book of the plaintiff in error shall contain the following matters in the following order: 1. The names of all the parties as they stood on the record of the court below at the time of the trial, and the form of the action. 2. An abstract of the proceedings, showing the issue and how it was made, and a copy of the docket entries. 3. The verdict of the jury and the judgment thereon, 4. A statement of the questions involved. 5. A history of the case. 6. The points, if any, which were submitted in writing to the court below. 7. The charge of the court 8. The assignments of error. 9. A brief of the argument for the appellant. 10. An appendix containing the evidence, the pleadings in full, and the certiiicate of the trial judge as hereinbefore provided. 930. Assignments of error. 1. The learned court erred in refusing to quash the bill of indict- ment for the reasons assigned, as follows : "Because one of the members of the grand jury who found the bill of indictment was disqualified, to wit: J. K., for the reason that he had, before the meeting of the court and after he had been summoned as a grand juror, been actively engaged in assisting the prosecution of the defendants by aiding and securing evidence for §§ 981, 932J FORMS. 651 the commonwealth, and was a member of an association organized for that purpose." (See Appendix, page .) 2. The learned court erred in rejecting the defendant's offer of the testimony of A. B., the offer, objection, and ruling being as follows \_give in fulV] : (See Appendix, page .) 3. The learned court erred in compelling C, one of the defend- ants, to write his name at the instance of the commonwealth for the avowed purpose of using it for his incrimination. The request, ob- jection, and ruling of the court being as follows [give in fidl] : (See Appendix, page .) 4. The learned court erred in taking the verdict in the absence of both the defendants and their coxmsel, and without calling them or any of them. (See Appendix, page .) 931. Statement of questions involved. 1. What interest, conduct, or bias of a grand juror who partici- pates in finding a bill will justify the quashing of same. 2. The duty of the court to advise jury to acquit where the only testimony is that of accomplices uncorroborated. 3. The right of the commonwealth to show sales of property by de- fendant in no way connected with property stolen. 4. The right to compel defendant to write his name. 5. The right to take verdict in a felony in absence of defendant or counsel, without calling either. 932. Bill of exceptions. Commonwealth of Pennsylvania vs. In the court of quarter sessions of county. No. , ses- r. _ sions, 19 A. B. Be it remembered that upon the arraignment of the prisoner at the term of the court of quarter sessions of the said county of , in said state of Pennsylvania, and before pleading or taking other steps in this cause, the defendant, by his counsel, moved the court [here insert motion to quash or any other preliminary motions that may be made in the cavse, or if any affidavits, proofs. 633 CRIMINAL AND PENAL PROCEDURE. [chap xxxiii. or documents are offered in support of said motion, here insert the sam,e'], which motion was by the court overruled and denied. To which ruling and decision of the court, the defendant, by his coun- sel, then and there excepted. Be it further remembered that on the trial of this cause on the day of , A. D. 19 , at the term, a. d. 19 , of the said csourt, the people, to maintain tJie issue on their part, called as a witness E. F., who, being duly sworn, testified as follows [here insert evidence of the witness and all other necessary evidence giveji l>y the commonwealth^ : [^Where it is desired to preserve ob- jection and exception, proceed'] : And thereupon the counsel for commonwealth asked the witness the following question [here insert question'] , to wliich question the defendant, by his counsel, then and there objected for the reason [here insert reasons for oijection] ; but the court overruled the defendant's objection and permitted the ques- tion to be answered, to which ruling and decision of the court, the de- fendant, by his counsel, then and there excepted, and thereupon the witness testified [here insert answer of witness, etc.]. And thereupon for the commonwealth offered in evidence [here insert description of documentary evidence as marhed exhibit ], to which offer of the commonwealth the defendant, by his counsel, then and there objected for the reason [here insert reason], but the court orerruled the defendant's objection and permitted the same to be read in words and figures as follows [here insert instrument in exact words] : to which ruling and decision of the court in permitting the same to be read in evidence, the defendant, by his counsel, then and there excepted. And the said defendant, to maintain the issue on his part, called as a witness G. H., v/ho, being duly sworn, testified as follows [here insert the testimony of the witness and such other evidence as is given by the defendant] : The foregoing is all the evidence offered or introduced by either of the parties. Thereupon the court at the instance and request of the common- wealth, by the district attorney, instructed the jury as follows [here insert the instructions given for the commonwealth] ; to the giving of all and each of the said instructions for the commonwealth, the de- fendant, by his counsel, then and there excepted. And thereupon the court gave the following instructions at the instance and re- quest of the defendant [here irosert the instructions given for the § 932] FORMS. 653 commonwealth']. And the counsel for the defendant then and tliere also requested tJie court to give to the jury the following written in- structions for the defendant [here insert the additional instructions as asked to be given] : which the court refused to give as requested, but modified the same so as to read as follows [here insert the instruc- tions as modified] ; and then gave and read the same as modified to the jury. To which ruling and decision of the court in refusing to give such instructions and each of them ps asked, and to tlie mod- ifications of such instructions and each and every modification there- of, and the giving of such instructions as modified, the defendant, by his counsel, then and there excepted. And tlie counsel for the de- fendant then and there requested and asked the court to give to the jury the following written instructions for and on behalf of tlie defendant [here insert instructions which the defendant aslced the court to give that the court refused to give] : But the court refused to gire these instructions or any or either of them to the jury, to which ruling and decision of the court in refusing to give and read the same to the jury, the defendant, by his counsel, then and there excepted. The foregoing instructions given as asked and those given as mod- ified are all the instructions given on the trial of the case. And thereupon the jury rendered a verdict against the defendant of guilty. And whereupon, on a subsequent day of the term before any judgment was entered on said verdict, the said defendant, by his counsel, moved the court to set aside the verdict of the jury and for a new trial of the case upon the grounds and for the reason foP lowing, viz. [here insert the grounds of the opinion]. [In case affi- davits or other documents are read in evidence in support of the mo- tion, here insert the same.] The court, after hearing of said motion of the defendant to set aside the verdict of the jury and for a new trial, denied the same and rendered judgment upon the said ver- dict, to which ruling and decision of the court, in overruling and denying said motion, the defendant, by his counsel, then and there excepted. And thereupon the counsel for the said A. B. did then and there except to the aforesaid rulings, charge, and opinion of the said court, and inasmuch as the said rulings, charge, and opinion so excepted to do not appear upon the record. The said counsel for the said A. B. did then and there tender this bill of exceptions to the rulings, charge, and opinion of the said court, and requested the seal of the judge aforesaid should be put to the 654 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiil same, according to liie form of the statute in such case made and provided. And thereupon the aforesaid judge, at the request of the said cotmsel for the did put his seal to this bill of excep- tions, pursuant to the aforesaid statute in such case made and pro- vided, this day of , a. d. 19 . M. K, [seal. J President judge. 933. Notice of settling bill of exceptions. Commonwealth of Pennsylvania 1 t ^i ^ j- ■^ in the court oi quarter sessions of county. 'No. , ses- sions, 19 . vs. A. B. To E. r., Esq., attorney for : Dear Sir: Inclosed find copy of bill of exceptions presented to Judge A. B. You will please take notice that the same will be setr tied before him at his office in the borough of 0. on Thursday, , at o'clock A. M. Very respectfully yours, G. H., Attorney for (Date.) , 934. Certificate of court, where bill of exceptions at common law not sealed. The forgoing notes of testimony, with the exceptions taken by counsel during the trial to the rejection or admission thereof, and the charge with the exceptions thereto, have been examined by me, tmd are hereby approved and ordered to bo filed. A. B., Judge. 935. Petition for mandamus to seal a bill of exceptions. A. B., Appellant, 1 x ^.t. ^ j; ^ In the supreme court of Pennsylvania for the eastern district. Term, 19 . No. vs. The Commonwealth of Pennsylvania, Appellee, To the Honorable the judges of the supreme court of the state of Pennsylvania : The petition of A. B. humbly showeth that they are the appellants § 985]" FORMS. 655 in the above-entitled cause, wherein an appeal was taken to your hon- orable court on the day of , a. d. 19 , to remove the record and proceedings in the court of quarter sessions of the peace of the county of , to sessions, 19 , ^o. . Your petitioners sought by said appeal to bring before your honorable court certain errors committed by the Honorable A. j3., judge of the said court of quarter sessions in the said case, which was tried before him and a jury on the day of , A. D. 19 . That during said trial the said judge made the following rulings, all of which are alleged by your petitioners to be errors, and as to all of which the petitioners duly excepted at the time, and the judge at the request of their counsel noted exceptions, to wit l_here insert copy of exceptions']. And your petitioners further show that when petitioners' counsel stated their exceptions the learned judge noted the same, and that he has now in his possession the original bills of exceptions ; that, al- though required so to do, he has not filed the same, and has twice refused to seal the formal copy thereof, prepared and tendered to him for that purpose. And your petitioners attach hereto as part hereof the said bill of exceptions and the charge excepted to, which are marked "Exhibit A." And your petitioners further show that the right of a suitor to a bill of exceptions is secured by the Statute of 13 Edw. I., chap. 31 (1285), reported as in force in this state (Kobert's Digest, 92), ex- tended to criminal cases by subsequent legislation, that the remedy for the refusal of a judge to seal a bill is provided by that law and is now here prayed. That the act of the general assembly of this commonwealth, ap- proved May 19, 18Y4, expressly gives to petitioners the right to a bill of exceptions in these words: "On the trial of all cases of fel- onious homicide and in all such other criminal cases as are exclusive- ly triable and punishable in the courts of oyer and terminer and gen- eral jail delivery, exception to any decision of the court may be made by the defendant, and a bill thereof shall be sealed in the same man- ner as is provided and practiced in civil cases ; and the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the supreme court. In capital offenses, a writ of er- ror or certiorari shall stay execution of sentence. In all other cases such writs shall not stay or delay execution of sentence or judgment without the special order of the supreme court or a justice thereof for that purpose; and in case of such order, the said supreme court 656 CRIMINAL AND PENAL PROCEDURE. [chap, xxxni, or justice may make such order as the case requires, for the custody of the defendant or for admission to bail; in all other criminal cases exceptions as aforesaid may be taken, and in cases charging the of- fense of nuisance, or forcible entry and detainer, or forcible detainer, exceptions to any decision or ruling of the court may also be taken by the commonwealth, and writs of error and certiorari, as hereinbe- fore provided, may be issued from the supreme court to all criminal courts, when specially allowed by the supreme court or any judge thereof." (P. L. 219, § 1.) And your petitioners further show that the said refusals of said learned judge, the Honorable C. D., to seal the aforesaid bills of exceptions, are to the grievous and manifest injury of the petitioners and against the statutes in such case made and provided. They therefore pray this honorable court to award a writ, con- formably to the statute in such case made and provided (13 Edw. I., chap. 31), directed to the said Honorable C. D., commanding him to appear at a certain day either to confess or deny the matters herein set forth ; and if he confess the same, to affix his seal to said excep- tions or to so much of the same as he shall so confess, and your peti- tioners also pray for such other writ, relief, and remedies as by law petitioners are entitled to. And as in duty bound they will ever pray. A. B. (Signatures.) The petitioners above named, having been duly sworn according to law, depose and say that the facts set forth in the foregoing petition are true and correct, to the best of their knowledge and belief. A. B. Sworn to and subscribed before me, this) day of , 19 . ^ M. N., Prothonotary. (Here attach bills of exceptions as "Exhibit A.") Copy of Indorsement A. B., Appellant, I Supreme court of Penn- ies. I sylvania. The Commonwealth of Pennsylvania, [ term, 19 . Appellee. J No. Petition of appellants to the supreme court "To award a writ conformably to the statute in such case made and g§ 938, 937] FORMS. «57 provided, directed to Honorable C. D., commanding him to appear at a certain day, either to confess or deny the matters therein set forth ; and if he confess the same to aiBx his seal to said exceptions, "and for such other writ, relief, and remedies as by law petitioners may be entitled to. 936. Certificate of opinion of appellate court. Commonwealth of Pennsylvania^ \ q j. County of . ^ * I, W. P., prothonotary of the superior court of Pennsylvania, in and for the district thereof, do hereby certify that the foregoing is a true and correct copy of the whole and entire opinion in the case of Commonwealth of Pennsylvania vs. A. B. et al. at No. , of term, 19 , as full, entire, and complete as the same remains on file in the said court, in the case there stated; and I do hereby further certify that the foregoing has been compared by me with the original record in said cause in my keeping and cus- tody as the prothonotary of said court, and that the foregoing is a correct transcript from said record, and of the whole of the original thereof. In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at , in the coun- fsEAL.] ty of , in the said district of Pennsylvania, this day of , in the year of our Lord 19 . W. P., Prothonotary. 937. Eemittitur from appellate court. In the superior court of Pennsylvania. The commonwealth of Pennsylvania; To the justices of the court of quarter sessions for the county of ; Greeting : Whereas, on the day of , in the year of our Lord 19 , a record was brought into the said court upon an appeal by A. B. and C. D. from your judgment made in the case of Common- wealth of Pennsylvania vs. said appellants, and E. F. and J. K. And it was proceeded in our superior court, that the following judgment was made, to wit : Judgment affirmed and record remitted to the court below to the end that the sentence be fully carried into effect. Pa. Crim. Proc. — 42. 668 CRIMINAL AND PENAL PROCEDURE. [chap, xxxni. And the record and proceedings thereupon, and all things con- cerning the same, were ^agreeably to the directions of the act of as- sembly in such case made and provided'] ordered by the said superior court, to be remitted to the court of quarter sessions for the county of , aforesaid, as well for execution or otherwise, as to justices shall appertain: Wherefore, we here remit you the record of the said court aforesaid, and the proceedings thereupon, in order for execution or otherwise, as aforesaid. Witness, the Honorable A. B., president judge of our superior court at , the day of , in the year of our Lord 19 . CD., Prothonotary. 838. Porm of information or complaint in penal actions. State of Pennsylvania, ) CotTNTY OF . j ' The information and complaint of A. B., of [pkce], made and ex- hibited before E. P., Esq., justice of the peace of the borough of , and the said A. B., being duly sworn according to law, deposes and says [here state the offense specially, following the stat- ute or ordinance and the facts as to timej place, etc.'} contrary to the statute [or ordinance] in such case made and provided, whereby C. D., according to said statute forfeits the sum of $100. Whereupon A. B. prays that the said C. D. may be summoned tr> answer the premises before the said justice. A. B. Sworn and subscribed before me, this ) day of , 19 . { Justice of the peace for the borough of 939. Form of summons. City op , ss. The commonwealth of Pennsylvania, to any constable of said city most convenient to the defendant; Greeting: You are hereby commanded to summon A. B. to be and appear on the day of , a. d. 19 , between the hours of 10 o'clock a. m. and 11 o'clock a. m., before the subscribed C. D., mag- istrate of court IN'o. , in and for the said city, to answer E. P., in a plea of debt or demand for the penalty provided by an ordinance § 910] FORMS, C5fl of tlie city of , relating to nuisances, by obstructing pave- ments, approved May 1, 1890. Witness the said magistrate at his court in the city of , who hath hereunto set his hand and affixed the official seal thereof, the day of , a. d. 19 . CD., [seal.] Magistrate of court No. (Address.) (If a warrant be used to institute the proceeding, it follows the form of the criminal warrant heretofore given, with the insertion of the appropriate facts.) 940. Form of warrant. CotTNTT, SS. The commonwealth of Pennsylvania; To L. M., constable of the tovsTiship of , in the county of , or to amy other constable in the said county; Greeting. [l. S.J Whereas, complaint and information have been made be- fore me, E. r., a justice of the peace in and for the county of , on the oath of A. C, farmer, of the township of , in the county aforesaid, that 0. D., laborer, of the township of , in the county aforesaid, on, etc., at, etc., did [here state the offense or charge as in the information'], contrary to the statute in such case made and provided. These are therefore to com- mand you forthwith to apprehend and take the said 0. D., and bring him before the said E. E., to answer to the said complaint and infor- mation, and further to be dealt with according to law. Witness the said E. E. at, etc., the day of , a. d. 19 . In some cases it may be proper, after the words "in such case made and provided," as above, to introduce the following: And it is further sworn before me by a credible witness, that he verily believes that the said C. D. will abscond or unlawfully absent himself from and out of the said county, in order to avoid conviction and punishment for his said offense, unless he be forthwith appre- hended. These are therefore in pursuance and by virtue of the stat- ute in that case made and provided, to command you, etc It has been said by the supreme court that the warrant should not be used in such cases except when necessity appears. Com. v. Bor- den, 61 Pa. 272, 276. 660 CRIMINAL AND PENAL PROCEDURE. [chap, xxxih, 941. Capias for swearing^. County, ss. The commomvealth of Pennsylvania ; To A. B., constable, etc. : [l. S.J Whereas, information hath this day been made before J. P., Esquire, one of the justices of the peace in and for the county of , upon the solemn affirmation of John Doe, of township, aforesaid, baker, that this day at the said township he heard Richard Eoe, of the same township, laborer, being of the age of sixteen years or upwards, swear one profane oath in these words, Py G — d [or curse one profane curse in these words, "Q — d d — n you"'] ; contrary to the act of general assembly in such case made and provided. You are therefore hereby commanded to take the said Richard Roe and bring him before the said J. P. forthwith to answer the said charge, and further to be dealt with according to law. Here- of fail not. Witness the said J. P. under his hand and seal, etc. J. P. [seal.] 942. Commitment on conviction. County, ss. The commonwealth of Pennsylvania; To E. F., constable of the township of , in the county of , and to the keeper of the common gaol of the said county ; Greeting : Whereas, A. B., of the said township and county, paint- [sEAL.] er, hath the day of , etc., been convicted before me, J. P., a justice of the peace in and for the said township and county of, etc. [here set out the offense, as in the convictionl contrary to the act of assembly in such case made and provided, for which offense the said A. B. hath by me, the said justice, been ad- judged to forfeit and pay the sum of ten dollars, etc., and that upon his neglect and refusal to pay the said, etc., he be committed to the common gaol of the said county, etc., there to be kept, etc, for the space of, etc. And, whereas, the said A. B. hath neglected and re- fused to pay the said sum of, etc., as aforesaid, we therefore com- mand YOU, the said constable, to take the said A. B., and forthwith to convey him to the common gaol of the said county, and to deliver him into the custody of the keeper of the said gaol, who is hereby commanded to keep him there, etc., for the space of, etc. And here- of neither of you are to fail. Witness the said J. P., justice of the peace aforesaid, at, etc., on, etc J. P. [seal.] §§ 948, 944] FORMSw 681 943. Warrant to levy penalty on conviction. County of , state of, etc., to, etc. Whereas, A. B., of, etc., hath this day been, convicted before me, J. P., a justice, etc., of having, etc., contrary to the statute in that case made and provided, whereby he had forfeited, to the use of, etc., the sum of ten dollars, etc These are, therefore, to command you forthwith to levy the said sum, etc., and also the sum of five dollars, which I have settled and ascertained as and for the charges of the proceedings against him, touching the said offense, by distress and sale of the goods and chattels of the said A. B. and to pay the said forfeiture to C. D. [as the case may he, or to the said justice at the return of this warrant'] . And you are to certify to me, with the re- turn of tJiis warrant, what you shall have done in the execution there- of. Given under my hand and seal, at, etc., on, etc. J. P. [seal.] 944. Transcript of record of conviction in summary proceeding. County of , ss. Be it remembered that on the [^date], in said county, A. B. per- sonally appeared before me, a justice in and for the borough of C, and made complaint and information before me that \_here set forth the complainf], contrary to the form of the act in such case made and provided, which is as follows [/lere set forth ordinance or statute]. Whereupon, the said C. D. was duly summoned to appear and an- swer said complaint, and on [date] he appeared before me and de- clared [here state what 0. I), declared], and Q. H., of [place], un- der oath did say [here state the evidence of any witness or witnesses who appeared]. Therefore, it manifestly appearing to me upon careful examina- tion of the truth of the charges contained in said complaint, that C. J), is guilty of the offense charged against him in said complaint, I, the aforesaid and subscribing justice, do adjudge the said C. D. to forfeit and pay for the same the sum of $100, with costs of suit to be distributed [here set forth the manner of division] according to law, and in default of such payment, or of goods to satisfy said fine, 663 CRIMINAIi AND PENAL PROCEDURE. [chap, xxxiir. the said C. D. shall be committed to the county prison, to wit [placed for [time as prescribed by statute, ordinance, etc.]. Given under my hand and official seal [date^. [Officiai. seal.] Attach all papers. M. K, Magistrate. 945. Transcript in action for penalty. Transcript from the docket of L. M., Magistrate of court l^o. Commonwealth of Pennsylvania] For a penalty, summons issued [date} returnable between the ex rel. A. B. hours of 3 o'clock p. m. and 3 :30 o'clock p. m. W. R., con- vs. stable. Eetumed on oath [date']. Served on defendant C. D. by leaving the copyof the orig- inal summons at the defend- Eesidence, , ant's dwelling house with an adult member of the family, Business, . and made known the contents thereof. And now [date], 3 o'clock p. m., parties appear. Messrs. D. and C. appear for the plaintiff, and F. 0. appears for the defendant Plaintiff claims $100 as a penalty for a violation of sections 1 and 3 of an act of assembly approved the day of , a. d. 19 , entitled "An Act [her-e set forth title], which are as follows [here set forth sections]. Defendant pleads not guilty, and also that the act under which this suit is brought is unconstitutional, be- ing contrary to the Constitution of the state of Pennsylvauia and the United States. C. W. sworn and examined for the plaintiff [here set forth the evidence at length]. After hearing the parties, their proofs and allegations, judgment publicly rendered for plaintiff for § »46] FORMS. 603 a penalty of $100 and costs Idate']. Defendant files Ms affidavit and appeals. City of . ss. I hereby certify the above to be a correct transcript from my docket. Witness my hand and official seal of said court, the day of , 19 . K. S., Magistrate of court No. [seal.] Attach all papers. (For violations of ordinances the record is similar, the borough or city being the plaintiff. See Eecord, chapter xxxi., § 751, ante.) 946. Praecipe for certiorari and affidavit. I In the court of common pleas of EichardKoe. J ^^°*^' *^™' ^^ ' ^°- Sir: Issue writ of certiorari in the above case to A. B., Esq., justice of the peace. Returnable sec. leg. To C. D., Prothonotary of common pleas. J. W., Attorney for defendant. , 19 . City and County of , ss. Eichard Eoe, the defendant in the above case, and applicant for the above writ of certiorari, having been duly sworn according to law, deposes and says that said writ is not for the purpose of delay, but that in the defendant's opinion the cause of action was not cogni- zable before a magistrate \^or that the proceedings proposed to be re- moved are, to the best of his knowledge, unjust and illegal, and, if not removed, will oblige the said applicant to pay more money than is justly duel. Eichard Eoe. Sworn to and subscribed before me, this \ day of , A. D. 19 . j 664 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiu. 947. Writ of certiorari. City akd Couittt of , ss. The commonwealth of Pennsylvania; To A. B., justice of the peace; Greeting : We, being willing, for certain causes, to be certified of a certain plea, etc., between the city of , plaintiff, and Richard Roe, defendant, before you depending, do command you, that the plea aforesaid with all things touching the same, before your judges of our court of common pleas, at , there to be held the Monday of next, so full and entire as before you they now remain, you certify and send, together with this writ ; that we may further cause to be done thereupon that which of right and accord- ing to the laws and Constitution of this commonwealth ought. Witness the Honorable John Doe, president of our said court, at , the day of , in the year of our Lord 19 . 0. D., Prothonotary. 948. Return to certiorari. To the Honorable judges within named : The plea within mentioned, with all things touching the same so full and entire as before me they remain, I hereby respectfully cei^ tify and send, as within I am commandBd, together with this writ. A. B., Justice of the peace. 949. Remittitur to justice. The Commonwealth of Pennsylvania, 1' County. '' [seal.] To J. K., Esq., justice of the peace; Greeting: Whereas, by virtue of a writ of certiorari from the court of com- mon pleas of county to you directed, returnable the Monday of , last past, a record was brought into said court in a certain plea before you depending, wherein A. B. was plaintiff and C. D. defendant ; and it was so proceeded in by the said court that the following entry was made of record, viz.: "April 26, 1893, defendant suffers judgment of non pros." and the said record and proceedings thereon were ordered by said court to be remitted to you, as well for execution or otherwise as to justice shall appertain ; § 950] FORMS. 665 wherefore, -we here remit you the said record and proceedings for the purposes aforesaid. Witness the Honorable , president of our said court, at , the day of !, 19 • G. H., Prothonotary. 950. Petition for special allocatur in summary proceedings. Commonwealth of Pennsylvania 1 x ^i ^ j- I in the court oi quarter sessions ^ -g I **^ county. To the Honorable C. D., president judge of the said court : The petition of A. B., the defendant above named, respectfully represents : That he was arrested on the day of , 19 , on a warrant issued by M., a justice of the peace for the borough of S., in the county aforesaid, based upon a complaint charging him with the violation of a statute ^setting forth the offense alleged^. That a hearing was had on the day of , 19 , and after the hearing of testimony, judgment was entered for the commonwealth and a sentence [insert whaf] was imposed. That at the hearing, the judge refused to receive any testimony on behalf of the defendant, and committed other errors in the said pro- ceedmgs which are as follows [^setting forth']. Your petitioner, therefore, prays the special allowance of an ap- peal from the court of quarter sessions to the said justice of the peace, that the judgment herein complained of may be reviewed as to law and justice may appertain. A. B. County, ss. A. B., the above-named defendant, being duly sworn according to law, says that the facts above set forth are true and that the applica- tion for the appeal taken in the above case is not for the purpose of delay, but that he believes injustice has been done him. A. B. Sworn to and subscribed before me, this ) day of , A. D. 19 . J R, Clerk of the courts. 666 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiu. 951. Allowance of appeal. And now £date'], on motion of A. B., attorney for defendant, and on cause being shown, the court allow an appeal in the case on the costs already paid and on the bond already given. A. B., President judge. 952. Rccpgnizance on appeal from summary conviction. Commonwealth of Pennsylvania vs. John Doe. Before C. E., a justice of the peace for the county of Charge for gambling. Be it remembered that on the day of , a. d. 19 , John Doe, of the township of , in the county of , laborer, and Richard Eoe, of the township and county aforesaid, far- mer, personally came before me, M. E"., a justice of the peace for the said county, at the county aforesaid, and acknowledged themselves to owe and be indebted to the commonwealth of Pennsylvania the sum of one hundred dollars each, to be made and levied of their several goods and chattels, lands and tenements, if default shall be made in the following condition, hereunder written. Whereas, by a certain conviction under the hand and seal of me, the said M. 'N., the above- bounden John Doe is convicted, for that he, the said John Doe, on Monday, the day of aforesaid, did, etc. [here set out the offense or charge'] . And, whereas, the said John Doe hath appealed from the said conviction [orj "declared his purpose to ap- peal, etc."]. Now, the condition of this recognizance is such, that if the above-bounden John Doe shall personally appear, at the next [stating the proper court] to be holden at, etc., for the county afore- said, and shall then and there try such appeal, and abide the judg- ment of the said court, of, etc., and pay the costs occasioned by such information, conviction, and appeal, as shall be awarded by the said court of, etc., then his recognizance to be void, otherwise of force. Taken and acknowledged before me, etc. M. K, justice. John Doe. [seal.] Richard Roe. [seal.] 953. Application for pardon. To the Honorable Board of Pardons: The petition of A. B. respectfully represents that he was convicted §§ 954, 955] FORMS. 667 of murder of the first degree in the court of oyer and terminer of coimty on > 19 ? a^d in accordance with the said verdict, he was sentenced to death. That the judgment of the court below was affirmed by the supreme court on j 19 , and ,19 , has been fixed by the governor as the date of execution. That your petitioner believes that such judgment should not be carried into execution for the following reasons ^stating them'] . He therefore prays your honorable body that you will recommend the granting of a pardon to him. A. B. 954. Papers accompanying application for pardon. 1. Proof of notice of application in newspaper of county once a week for two consecutive weeks to be by affidavit of publisher. 2. Proof that notice of application with reasons for pardon were given to the judge who tried the case, and the district attorney, or attorney who prosecuted. 3. Proof that similar notice was given to the mayor and head of the police department, where the crime was committed in a city. 4. A certified copy of the entire record, including docket entries, minutes of the court, copy of indictments, plea and all other papers on file relating to the case. 5. The notes of evidence taken on the trial, and letters from re- sponsible persons in the community. If no notes of testimony are taken, this must be noted. 6. A brief statement of the reasons sustaining the application, the facts in the form of a history of the case, and a schedule of papers and letters filed. Four copies must be filed of each. 7. Depositions, if any, which must be taken within the jurisdic- tion of the court in which the conviction was had. 955. Petition for requisition. To the Honorable W. A. S., Governor of Pennsylvania: The petition of John Doe of , in the county of , state of Pennsylvania, respectfully represents: That Kichard Roe stands charged, as appears by the annexed cer- tified copy of the information, vnth the crime of arson, committed in the county of , state of Pennsylvania, on or about the day of , A. D. 19 ; that the said Richard Koe was in the 668 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiu. said county and state at the time of the commission of the said of- fence; that before an arrest could be made, to wit, on or about the day of J A. D. 19 , he fled from the state of Penn- sylvania, and is now, as your petitioner verily believes, in the county of and state of , a fugitive from the justice of tliis state, said belief being founded on the following information, to wit: ; that the said fugitive is now desired, in order that he may be tried for the commission of the said crime; that there is sufficient evidence that can and will be produced at his trial to justify his conviction; that any delay which may have occurred in the prosecution of said offense was unavoidable for the foUowings reasons, to wit: Wherefore, your petitioner prays that a requisition may issue, di- rected to the governor of the said state of , for the arrest and delivery of the said fugitive, and that W. S., of the county of , state of Pennsylvania, may be appointed agent on be- half of said state to go after, receive, and return him, the said Rich- ard Hoe, to the said coimty of for trial. John Doe. State of Pennsylvania^ ] County of ,^ ' John Doe, being duly sworn [or affirmed], doth depose and say that the statements contained in the foregoing petition are true, that the application for a requisition is made in good faith, and not for the purpose of enforcing the collection of a debt, or for any private purpose whatever, biit with a view to prosecute to conviction the charge against said fugitive, and that the agent named has no pri- vate interest in the arrest of the said fugitive. John Doe. Sworn to [or affirmed'] and subscribed before me, 7 this day of , a. d. 19 . J A. J., Clerk of the court of quarter sessions. 956. Certificate of district attorney. I, A. E., district attorney, in and for the county of , state of Pennsylvania, do hereby certify that I have carefully exam- ined the case in which the foregoing application is made, and do approve of said application, and I do further certify : 1. That the full name, properly spelled, of the person for whom § 957] FORMS. 660 extrHdition is asked, is Richard Eoe, and the name of the agent pro- posed is W. S., who is a resident of , in the county of , state of Pennsylvania. 2. That, in my opinion, the ends of public justice require that said fugitive be broiight to this state for trial, at the public expense. 3. That I believe I have sufficient evidence to secure the conviction of said fugitive. 4. That the person named as agent is a proper person, and that he has no private interest in the arrest of said fugitive. 5. That no former application for a requisition for said fugitive, growing out of the same transaction, has been made [t'f so, explain]. 6. That said fugitive is now under arrest in the city of , county of , state of 7. That this application is not made for the purpose of enforcing the collection of a debt, or for any private purpose whatever; and if the requisition now applied for be granted, the criminal proceedings shall not be used for any such object. 8. The crime with which said fugitive stands charged is arson. 9. That any delay which has occurred in the prosecution of said offense and in the application for requisition was unavoidable for the reason '[if so, explain]. 10. I am satisfied that the expenses attending the extradition of said fugitive shall be charged upon this county, and I will take the proper means to obtain them. A. E., District attorney in and for the county of 957. Indorsements on application. Name of case. Date of filing in the oifice of the secretary of the commonwealth. Approved ,19 . W. W. Gr., secretary of the com- monwealth. Executive Chamber, , Pennsylvania. 19 . (Let requisition issue.) W. A. S. Governor. 670 CRIMINAL AND PENAL PROCEDURE. [chap, xxxiii, 958. Bequisition on governor of asylum state. Commonwealth of Pennsylvania, Executive Department, The Governor of the State of Pennsylvania: To the Governor of the State of : Whereas, it appears by an indictment which is hereunto annexed, and which I certify to be authentic and duly authenticated in ac- cordance with the laws of this state, that A. B. stands charged with the crime of arson, which I certify to be a crime under the laws of this state, committed in the county of , in this state, and it having been represented to me that he has fled from the justice of this state and may have taken refuge in the county of , state of Now, therefore, pursuant to the provisions of the Constitution and the laws of the United States in such case made and provided, I do hereby require that the said A. B. be apprehended and delivered to C. D., who is hereby authorized to receive and convey him to the state of Pennsylvania, there to be dealt with according to law. Given under my hand and the grand seal of the state, [seal.] at the city of , this day of , in the year of our Lord 19 . By the governor: W. A. S. W. W. G., Secretary of the commonwealth. 959. Appointment of agent for the state. Commonwealth of Pennsylvania. Executive Department. The Governor of the State of Pennsylvania; To all to whom these presents shall come: Know ye, that I have authorized and empowered and by these presents do authorize and empower, A. B. to take and receive from the proper authorities of the state of , C. D., a fugitive § 960] FORMS. 671 from justice, and convey him to the state of Pennsylvania, there to be dealt with according to law. Given under my hand and the great seal of the state, [seal] at the city of , this day of , in the year of our Lord 19 . By the governor: W. A. S. iW. W. G., Secretary of the commonwealth. 960. Warrant of governor for arrest in Pennsylvania. commoitwealth of pennsyxvaifla. Executive Depaetment. To A. B., Esquire, sheriff of county, or any other ofiScer authorized by law to execute warrants: Whereas, it has been represented to me by his excellency the gov- • ernor of the state of , tJiat C. D. has been indicted for the crime of arson in county, state of , and that he has fled from justice in that state, and taken refuge in the state of Peimsylvania, and the said governor baving, in pursuance of the Constitution and laws of the United States, demanded of me that I shall cause the said C. D. to be arrested and delivered to E. F., who is duly authorized to receive and convey him back to the state of , there to be dealt with according to law. And whereas, the said representation and demand is accompanied by a copy of the indictment aforesaid, which is certified as authentic by the said governor, and is now on file in the office of the secretary of the commonwealth. You are, therefore, authorized and required to execute this war- rant in accordance with the act of the general assembly, entitled "An Act to Regulate Proceedings under Requisitions Upon the Governor of this Commonwealth for the Apprehension of Fugitives from Jus- tice," approved the day of , Anno Domini 19 , and after the hearing therein directed, to deliver the said C. D. into 673 CEIMINAL AND PENAL PROCEDURE. [chap, xxxin, the custody of the said E. F., to be taken back to the state from which he has fled, pursuant to said requisition. Given under my hand and the great seal of the state, [seal.] at the city of , this day of , in the year of our Lord 19 . By the governor : W. A. S., Governor of Pennsylvania. W. W. G., Secretary of the commonwealth. 961. Certificate of officer that a fugitive from justice was delivered up to the agent of another state. CoUKTYj SS. Commonwealth of Pennsylvania; To, etc. Whereas [^here recite the warrant of the governor of this state, the warrant of the justice, the apprehension of the fugitive, and pro- ceed']. A ad thereupon the said A. B. was by me ordered to be deliv- ered up to the said C. D., agent on the part of the state of , to be removed as aforesaid; I, the said E. F., justice of the peace afor6)said, hereby certify the aforesaid premises, and that in pursu- ance thereof, and by the authority aforesaid, the said A. B. was this day at the county aforesaid ordered to be delivered up to the said C. D., agent aforesaid, to be removed by him to the state of aforesaid, for the purposes aforesaid. In witness whereof, etc. {Btf^encea are to pagea.) ABANDONMENT. requirement of indictment, 274. use of "wilfully," 274. ABATEMENT. of nuisance as part of sentence, 472, ABDUCTION. See Kidnapping. ABORTION. as a statutory offense, 101, 275. requisites of indictment for, 27& certainty in, 275. ABSENCE. from state as exception to statute of limitation, 344. within state as exception to statute of limitation, 345. of prisoner at trial, 412. where voluntary, 412. at sentence, 412. of counsel as ground for new trial, 445. ACCESSORIES. See also RECErvrmQ Stolen Goods. jurisdiction. 111. of accessories to felonies, 125. of accessories to misdemeanors, 126. omission to name principal in indictment as a formal defect, 313. use of plea of nolo contendere to show guilt of principal, 332. taking advantage of pardon of principal, 339, 525. trial of, in felonies, 357. in misdemeanors, 358. sentence of, 474. ACCUSATION. See Complaint; Indictment; Infobmation; Pbesentment. ACCUSED. See Defendant. Pa. Crim. Proc— 43. 673 674 INDEX. ACKNOWLEDGMENT, of recognizance, 189. ACQUITTAL. See FoRMEB Acquittal. ACTION. on forfeited recognizance, see Recocnizaitczl ADDRESSES OF COUNSEL. right of defendant to be heard, 417. control of court over, 421. exceptions to, 421. time of, 421. opening addresses, 421. closing addresses, 422. ADJOURNMENTS. See also Coukts. of court during trial, 417. ADMISSIONS. by counsel, 417. ADULTERY. requisites of indictment for, 275b description of persons in, 276. joinder with bastardy, 292. ADVERSE POSSESSION, effect in nuisance, 342. AFFIDAVIT. to application for requisition, 161. to imprison witnesses, 173. to prove incompetency of juror, 403. on appeal, 479. form of, on appeal, 646. form of, for certiorari from justice, 663. AFFIDAVIT OF DEFENSE. to action on recognizance, 195-197. AFFINITY. See JxJBY. AFFIRMANCE. power of appellate court, 486. AFFIRMATION. to complaint, 136. at hearing, 170. form of, 627. AFTER-DISCOVERED TESTIMONY. as ground for new trial, 448. where known before, 449. where cumulative merely, 449. where it would not change result, 450. ZNDEX. 876 AGAINST THE FORM OP THE STATUTE, as conclusion of indictment, 266, 267. AGAINST THE PEACE AND DIGNITY. as conclusion of indictment, 266. AGENT. of governor to execute warrant, 163. costs of, 167, 168. indictment for embezzlement, 285. misdescription as a formal defect, 313. to bring back fugitive, form of appointment, 670. AGGRAVATION. charging matters of, 265. where badly charged in rape, 310. AGRICULTURAL ASSOCIATIONS. jurisdiction of offenses committed on grounds of, 118. AIDER BY VERDICT. See Verdict. ALDERMEN. in cities of the third class, 123. power to issue warrants, 139. ALIAS WARRANT, 137, 142, 532. ALIENAGE. as ground of challenge to juror, 402. ALLOCATUR. to remove pendinor indictments, 107. for appeal undei act ISCO, 477. for appeal under act 1897, 488. lor appeal from supeiior to supreme court, 488. for certiorari in proceeding on statute or ordinance, 568. on appeal in proceeding on statute or ordinance, 572. allowance nunc pro tunc, 572. application for allowance, 573. leview of allowance or refusal, 576. form of petition for, in summary conviction, 665. form of allowance of, 666. AMENDMENT. See also Eobmal Defects. of caption, 251, 323. in description of property stolen, 298. in description of owner of property stolen, 298. to innuendo in libel, 301. to inducement in libel, 301. where several articles received at one time, 310. motion to quash for amendable defects, 317. to correct variance between pleading and proof, 322, 323. of venue and time, 324. 676 INDEX. AMENDMEira— continued, of names, 324. of statement of offense, 32j. of defects of substance, 325. of joinder of parties, 325. of bill of particulars, 327. of date of entry of plea, 330. of joinder of issue, 330. of sentence, 468. by appellate court, 486. of order in desertion, 533. of sentence in summajy proceeding, 560. AMICUS CURI^. right of associate judges to call, 355. ANSWERING OVER. See Respondeat OusTBa. ANSWERS. See also Points and Answers. form of, to petition to remove pending indictment, 61S. APPEAL. See also Cebtiobabi; Review of Proceedings. jurisdiction of appeal, 107. from order for extradition, 164. after conviction before justice and jury, 181. power to release prisoner on bail, 185. in actions on recognizances, 202. where bill preferred without previous binding over, 24Qk where separate judgments entered, 454. right in criminal cases, 477. to what court, 478. form of writ, 478. who may, 478. how taken, 479. when taken, 479. effect of appeal, 479. as supersedeas, 479, 480. separate appeals, 480. where returnable, 480. time of hearing, 480. waiver of right to appeal, 480. from what judgments, 480. paper books, 480. paper books of indigent defendants, 48L exceptions, 481. assignments of error, 482. matters considered on, 483. matters considered on certiorari, 484. clerical errors, 485. INDEX, 677 APPEALr-continued. matters considered in desertion proceedings, 4S5. duty of court in capital cases, 486. decision of court, 486. remittitur, 487. reargumeiit, 487. costs on, 487. to United States Supreme Court, 487. costs on appeal in penal actions, 508. under act of 1836 for desertion, 53L effect of, on right to certiorari in proceeding on statute or ordinance, 568. in proceeding on statute or ordinance prior to 1876, 569. in proceeding on statute or ordinance under act of 1876, 570. where taken, 571. time of, 571. allowance of, 572. allowance of mine pro tunc, 572. application for, 573. striking oflF, 574. mandamus to justice, 574. proceedings on, 574. under act of 1881, 575. to superior and supreme courts in such proceedings, 575. from taxation of costs, form of, 645. form of appeal and aifidavit to superior court, 646. praecipe for certiorari on appeal, 646. recognizance on appeal, 647. proof of service on appeal, 647. writ of error from supreme court, 648. certificate to record sent up, 648. petition to make appeal a supersedeas, 649. order for supersedeas, 649. certificate of opinion of appellate court, 657. remittitur from appellate court, 657. APPEARANCE. of corporation, how secured, 331. in summary proceedings, effect, 548. in actions on ordinances, effect, 548. form of appearance of corporation, 626. APPELLATE COURTS. See ScPERioB Coubt; Supreme Coxnsx. APPLICATION. See also Petition. for extradition, 160. for change of venue, 363. for arrest of judgment, 442. for new trial, 444. time and manner of, 450. effect of previous motion in arrest of judgment, 46'L 678 INDEX. APPLIOATION— continued. for discharge under insolvent laws, 505. for discharge under insolvent laws in desertion, 534. for allowance of appeal in proceeding on statute or ordinance, 573. for pardon, form of, 666. APPP.EHENSION. See Arrest. APPRENTICE. summary {iroceedings against, under act of 1770, 557- ARGUMENT. See also Addresses op Counsel. of motion for new trial, 450. ARRAIGNMENT. in felonies, 329. in murder, 329. in other cases, 330. where change of venue granted after, 330, 364, insanity at, 365. trial of, 365. ARRAY. motion to quash where jury commissioners not qualified, 370. motion to quash where only two members of board present, 370. motion to quash where names not properly selected, 371. special venire when motion to quash sustained, 381. talesmen when motion to quash sustained, 387. challenge to, 394. ARREST. See also Warrant. for perjury during pendency of civil proceeding, 100. waiver of irregularities, 10^. by coroner, 117. where prisoner charged with felony is in another county, 139. where prisoner charged with misdemeanor is in another counl^^ 140. with warrant, 144. duty to show, 144. right to break in doors by officer, 144. right to break in doors by citizen, 145. right to kill by officer, 145. right to kill by citizen, 145. without warrant by officer for felony, 146. by officer for misdemeanors, 147. by officer for violation of ordinances, 147, 542-544, 548, 549. by officer under special statutes, 148. by individual for felony, 149. by individual for misdemeanors, 150. disposition of prisoner arrested without warrant, 150. exemption of members of legislature, 151. exemption of electors, 161. INDEX. »7!) ARREST— continued. exemption of election officers, 151. exemption from arrest on Sunday, 151. waiver of irregularities, 152. posse comitatus, 153-155. hue and cry, 155. rewards for, 155. rewards for apprehending horse thieves, 156, 157. proceedings where arrested by governor's waxrant, 163. of fugitive pending papers, 165. ARREST OF JUDGMENT. See also Amendment; Formal Defects. where indictment not certain, 260. for duplicity, 266. for misjoinder of counts, 271. for misjoinder of parties, 272. for misdescription of property, 298. for misdescription of ownership, 298. what is meant by, 442. overruling of, 442. what considered on, 442. grounds for, 443. review of . proceedings, 443, 484. effect of, on right to ask new trial, 451. affidavit in support of, as part of record, 48& disposition of, as part of record, 485. form of, 632. ARSON. jurisdiction of, 110, 111. requisites of indictment, 276. use of words in, 276. how attempt charged, 276. joinder of charge of intent to defraud, 277. limitation of prosecution for, 340. ASSAULT AND BATTERY, jurisdiction of justice, 119. requisites of indictment for, 277. on public officer, 277. with intent to kill, 277. with intent to steal, 277, 299. with intent to rape, 310. conviction of, where assault with intent to ravish badly charged, 310. with intent to rob, 311. settlement of, 347. form of complaint for, 580. ASSIGNMENT OF ERROR, to whole charge, 433, 482. to remarks of counsel, 482. to admission or rejection of evidence, 482. 680 INDEX. ASSIGNMENT OF ERROBr-continued. requisites of, 482, 483. ■which contradict record, 485. form of, 650. ASSOCIATE JUDGE. See also Judge. right to make complaint, 137. ASSUMPSIT. acquittal of crime as bar to warrant under act 1842, 99. to recover forfeited recognizance, 194. averments in statement, 195. ATTACHMENT. of witness by coroner, 116. to collect in desertion, 534. form of attachment for witness, 388. ATTAINT. of treason or felony, 470. ATTEMPT. to commit arson, how charged, 276. indictment for, 277. description of oifense, 277. to commit burglary, 278. to commit homicide, 296. to commit suicide, 296. to kidnap, 297. to obstruct justice and obstruction, joinder, 305. to commit rape, how charged, 310. conviction of, on indictment for statutory rape, 310L conviction of, on indictment for offense, 435. extent of sentence for, 407, 473. ATTORNEY AND CLIENT. See also Codtisel; Distiiict Atiornet. confidential communications of, 172. ' ATTORNEYS. See Counsel; Distkict Attokney. AUTREFOIS ACQUIT. See Plea op For.«ei; Acquittal. AUTREFOIS CONVICT. See Plea of Formeb Cokviction. B BACKING WARJRANT. for arrest in another county, 140. BAD ACCOUNTS. See Counts. BAIL. See also Recoqnizance. of witnesses, 173. INDEX. 681 BAIL — contiiiued. raccessive, 184, 185. by whom taken, 185-187. in homicide eases, 187. proceedings to admit to, 188. the recognizance, 188. the return, 189. rights of sureties, 189. liability of surety, 190. release of surety, 191. in desertion proceedings, 191. counter security, 192. forfeiture of recognizance, 192. in desertion proceedings, 193. jurisdiction of courts in proceedings on, 193. form of action, 194. ■who may sue, 194. averments in action, 195. afladavits of defense, 195-197. evidence in such actions, 197. judgment, 197. execution, 197. remission of forfeiture, 198. when granted, 198. when refused, 199. who may remit, 199-201. distribution of proceeds, 201-203. review of proceedings, 203, 204. restraint of accused on trial where admitted to, 413. form of forfeiture, 628. form of petition to remit forfeiture, 628. BAILEK See Labcent by Bailee. BAILPIECE. right of sureties to, 189. form of, by clerk of court, 595. form of, by justice, 595. BANK NOTES. description in larceny, 293. BANKS. indictment for receiving deposits by o£Scers of insolvent, 285. limitation of prosecutions of officers, 341, 342. imprisonment of insolvent officer as an imconstitutional punishment, 470. BASTABDY. See FoBNiCATioN and Bastabdt. BAWDY HOUSE. indictment for keeping, 278. 882 INDEX. BENCH WARRANT, power to issue, 139. where prisoner charged with felony in another county, 139, 168. costs of sei-ving, 517. form of, 613. BETTING ON ELECTIONS, indictment for, 283. BIGAMY. jurisdiction of, 130. limitation of prosecution for, 341. BILL. mutilation of, requisites of indictment for, 303. BILL OF EXCEPTIONS, right to file, 478, 481. form of, 051. notice of settling, 654. certificate of court where common-law bill not sealed, 654. petition for mandamus to compel sealing, 654. BILL OF PARTICULARS. where housebreaking not sufficiently described, 279. where disorderly meeting not sufiiciently described, 282. where homicide not sufficiently described, 296. where negligence of railroad employees not sufficiently described, 303. purpose of, 325. when refused, 326. when granted, 326. contents of, 327. effect of, 327. more specific bill, 327. amendment of, 327. form of petition for, 619. bill, 620. BINDING INSTRUCTIONS. expression Of opinion in charging, 426. instructions to convict, 427. to acquit, 427. as to degree of guilt, 428. BINDING OVER. See Commitment; Heabinos; Tbiai. befobe Justices. BLACKMAIL. as a statutory offense, 101. indictment for, 278. BLASPHEMY. indictment for, 278. BOARD. of jury, 518. INDEX. 683 BOARD — continued, of prisoners, 516. of insane prisoners, 517. BOARDING HOUSE. indictment for fraud on keepers, 294. BOARD or JURY (COMMISSIONERS, meeting, 368. who compose, 368. BOND. of indemnity to directors of poor In fornication and bastardy, form of, 638. to directors of poor in desertion, form of, 63S. of insolvent asking discharge, form of, 643. BOROUGHS,. See also Justices of the Peace; Penai, Actions on Oedinances. jurisdiction in, 123, 543. power of burgess to issue warrants, 139, 543. BOUNDARIES. jurisdiction of crimes committed near boundary lines, 126. of crimes committed on boundary waters, 129. of crimes committed on the Delaware, 129. of crimes committed on the Monongahela, 130. of ci'imes committed on Lake Erie, 130. BREACH OF THE PEACE. See Surety of the Peace. BREAKING AND ENTERING. See BUBGLAEY. BRIBERY. indictment for, 278. BROKER. \ indictment for embezzlement, 285. BUGGERY. jurisdiction of, 110. limitation of prosecution for, 340. BURGESS. See also Boroughs ; Penal Actions on Ordinances. jurisdiction in boroughs, 123, 543. power to issue warrants, 139, 543. BURGLARIOUSLY. use of, in charging attempted burglary, 278, BURGLARY. jurisdiction of, 110. indictment for, 278. for attempt, 278. for homicide in perpetration of, 296. limitation of prosecution for, 340. restitution as part of sentence, 472. 684 INDEX. BURNING BUILDINGS. See ^BSON. BYSTANDERS. Biuiunoning as talesmen, 387. O CALLING OF JURORS. See Impaneling Juey. CAPIAS. to collect, in desertion, 534. commencemeut of proceedings on ordinances hj, 648. of summary proceedings by, 548. form of, for swearing, 660. CAPITAL PUNISHMENT. See also Pbesbnoe; Sentence. conscientious scruples against, as ground of challenge, 400. who may complain, 401. separation of jurors where such may be imposed, 404. petition to determine sanity of convict, 465. sentence to, 471. duty of supreme court on appeal, 486. form of sentence of death, 632. mandate of governor to execute, 632. return of sheriff to, 633. oath of sheriff, 634. oath of jurors, 634. certificate of jurors, 635. CAPTION. what is, 250. requisites of, 251. amendment of, 2S1, 253. CARRYING CONCEALED DEADLY WBAPONa indictment for, 279. CERTAINTY. See also the Specific Offenses. in description of offense, 258. of statutory offense, 259, 26Q< surplusage, 263. repugnancy, 263. demurrer for uncertainty, 314 CERTIFICATE. See also Certipication. form by jurors present at execution of death sentence, 635. to record sent up on appeal, form of, 648. of court where common-law bill of exceptions not sealed, form of, 654, of opinion of appellate court, form of, 657. of district attorney to petition for requisition, form of, 668. of officer that fugitive was given up, form of, 672. INDEX. 886 CERTIFICATION. of indictment to oyer and terminer, 114, 145. when ajid liow made, 114. of judgment to common pleas, 115. of district attorney for requisition, 160. of forfeited recognizances, 194. of copy of indictment for one lost, 318. of papers on changk of venue, 364. of list of jurors selected, 374. of jurors drawn, 379. of talesmen, 389. of hospital managers that prisoner has become sane, 465. CERTIORARI. See also Appeal; Review of Ppigceedings. to remove pending indictments, 107. after conviction before justice and jury, 180. in action on recognizances, 202. in habeas corpus proceedings, 223. and habeas corpus as ancillary writs, 224. writ now called appeal, 478, 484. where refusal to remit recognizance, 484. what considered on, 485. clerical errors, 485. in desertion proceedings, 485. to justice in proceeding on statute or ordinance, 568. aJlowance of, 568. effect of appeaJing, 568. where no judgment passed, 569. issuing, 569. consideration of case on, 569. form of petition for, to remove pending indictment, 615. form of order on petition, 616. answer to, 616. priEcipe for, on appeal, 646. prajcipe for, from justice, 663. CHALLENGE. See also Challenge foe Cause; Pekemptort Challenge, of jurors in trial before justice and jury, 179. where mistake in description, 385. of grand jurors, time of, 387. to array, 394. peremptory challenges, 394. under act of 1901, 395. CHALLENGE EOR CAUSE, principal challenge, 396. challenge to the favor, 396. by whom entered, 396. grand jurors, 396. determination of, 397. fiS6 INBEX. CHALLENGE FOR CAUSE— continued, examination on voir dire, 397. swearing of juror on, 397. opinions, 398. where fixed, 398. where based on evidence read, 399. where juror on former proceeding, 400. conscientious scruples against capital punishment, 40(k scruples against circumstantial evidence, 401. against insanity, 401. interest or relationship, 401. serving two successive years, 402. illiteracy, 402. insanity, 402. nonresidence, 402. alienage, 403. taxpayers, 403. religious belief, 403. proof of incompetency, 403. waiver of right, 403. effect of refusal to sustain, 404. CHANGE OF VENUE. necessity of second arraignment, 330. in what cases granted, 363. application for, 363. proceedings when granted, 364. disposition of prisoner, 364. form of petition for, 616. CHARGE OF COURT. as to matters on which presentment of grand juiy based, 23E(. to grand jury, 244. to petit jury, 425. manner of charging, 425. what jury is to pass on, 425. expression of opinion, 426. binding instructions, 427. misleading instructions, 428. instructions not misleading, 428. points and answers, 429. omission to charge, 430. error in charge cured, 432. how advantage taken of errors, 432. filing charge and points, 433. exceptions to, 481. assignments of error for matters in, 482. CHARGING OFFENSE. See also Descbiption op Offense; Joinder of Counts; Joinder of Pabties. in complaint, 137. in warrant, 142. INDEX. 687 CHARGING OFFENSE— continued. in complaint for offense triable by justice and juiy, 177« variance in statement, 322. amendment to meet proof, 325. bill of particulars, 325-327. CHARITABLE SOCIETIES. jurisdiction of justice to commit to, 119. CHATTELS. See Description of Things. CHEATS. requisites of indictment for, 293. restitution as part of sentence, 472. CHECK. description in indictment for larceny, 298. CIRCUIT COURTS, jurisdiction of, 104. CIRCUMSTANTIAL EVIDENCE. scruples against, as ground of challenge, 401> CITATION. form of, on petition for support, 618. CITIES OF THE FIRST CLASS. jurisdiction of magistrates, 120, 542. CITIES OF THE SECOND CLASS. jurisdiction in, 121, 122, 543. CITIES OF THE THIRD CLASS. jurisdiction in, 123, 543. CIVIL ARREST. where defendant extradited, 166. CIVIL PROCEEDINGS. See also Concuekence of Civil and Cbiminal FBOCEEDUTOSt where fugitive extradited for crime, 166. plea of nolo contendere to prevent estoppel, 332. CLERICAL ERRORS. in recognizance, 188, in entry of plea, 330. in failing to show presence of ax;cused, 412. in notes of stenographers, 418, 482. in record, 485. CLERKS. See also Labcent bt Cleee. of oyer and terminer where supreme judge sits, 109. power to admit to bail, 185. description in indictment, 285. to jury commissioners, 369. fees of, 516. form of bailpiece by, 595. OSS INDEX. COCK FIGHTING. limitation of prosecution for, 341. CODEFENDANTS. See JoiNDBB OF Parties. COERCION. effect of enticing fugitive within state, 166. COGNATE OFFENSES. See also Counts. joinder of counts for, 268. COLLOQUIUM. setting forth, in indictment for libel, 299, 300. COMMENCEMENT, what is, 251. requisites of, 252. COMMISSION. to determine sanity, 464. in capital cases, 465. review where refused, 484. COMMISSIONERS' COURTS, jurisdiction, 104. form of complaint by, 582. COMMITMENT. by coroner, 117. of vagrant by justice, 118, 478. of fugitive from justice, 163, 164. of infants, 460. under juvenile court act, 460. for nonpayment of fine imposed under act of 1847, 467. for nonpayment of costs, 503. for lack of security in desertion under act of 1836, 530. for lack of security in desertion under act of 1867, 531. for lack of security to comply with sentence in desertion, 532. form of, for further hearing, 587. of defendant, 590. for witness not testifying, 588. for nonpayment in fornication and bastardy, 636. commitment to county jail, 638. commitment to Eastern Penitentiary, 639. commitment to Huntingdon Reformatory, 640. commitment to asylum, 642. commitment to local hospital for insane, 642. on conviction in penal action, 660. COMMITTING MAGISTRATE. See also Heakinq; Trial by Jury befoee Justices. commissioners' courts, 104. judges as, 112. coroner as, 117. INDEX. 68B COMMITTING MAGISTRATE— continued, justices of the peace, 117. return, 174. contents of, 175. ■where judge sits as, 175. in desertion, 175. power to release on bail, 186. COMMON LAW. effect of statutory remedy, 101, 540. conclusion of indictment for common-law offense, 260. forgery as common-law offense, 291. destroying bills, 303. nuisance, 304. obscenity, 305. extortion, 306. sentence for such offense, 454. COMMON NUISANCE. See Nuisance. COMMON PLEAS. certiiieation of judgment to, 115. power of judges to admit to bail, 185. issuance of certiorari, 569. appeals to, where penalties imposed, 571. COMMONWEALTH. right to appeal, 478. COMMUTATION. of sentence, 469. of death sentence to life imprisonment, 472. COMPELLING PROSECUTION TO ELECT. See Election. COMPENSATION. See also Costs. of counsel for defendant, 416. COMPLAINT. See also Confokmitt. jurisdiction where two made, 120. as foundation of proceeding, 136. how made, 136. necessary averments, 136. by whom made, 137. siwearing to, 137. charging offense, 137. against fugitive pending requisition, 165. for offense triable before justice and jury, 177. motion to quash for defects in, 3)e- variance with indictment, 322. in desertion under act of 1836, 52!*- Pa. Crim. Proc. — 44. 690 INDEX. COMPLAINT— continued. under act of 1867, 531, 532. in summary proceedings, 546. in actions on ordinances, 547. record of, in proceeding on statute or ordinance, 661. form of, 580. for surety of peace, 581. for desertion, 581. for search warrant, 582. before United States Commissioner, 582, in penal actions, b58. COMPULSORY EDUCATION. . costs in prosecutions for violation, 520. COMPULSORY LABOR. See also Vagbanct. sentence by justice for vagrancy, 118. CONCEALING DEATH OP BASTARD, jurisdiction of, 110. indictment for, 279, CONCESSION. See Admission. CONCLUSION. of indictment, 266. for common-law offense, 266. for statutory offense, 266, 267. of indictment for nuisance, 303. CONCLUSION OF LAW. averment of conclusion of law in indictment, 259. CONCLUSIONS OF FACT. See Special Verdicts. CONCURRENCE OF CIVIL AND CRIMINAL PROCEEDINGS, in misdemeanors, 99. in felonies, 99. effect of acquittal on civil proceeding, 99. pendency of civil proceeding, 99. pendency of civil proceeding of perjury, 100. of, as to trial, 100. plea in abatement, 339. CONCURRENT JURISDICTION, state and Federal courts, 105. of state and Federal courts in habeas corpus, 208. CONDITIONAL PARDON, 525. CONDUCT. See Grand Jury; Hearing; Tbiai,. CONDUCT OF TRIAL. See Hearing; Trial. INDEX. 691 CONFIDENTIAL COMMUNICATIONS. of husband and wife, 172. of attorney and client, 172. motion to quash where such evidence before grand jury, 316. CONFINEMENT. See Custody; Imprisonment. CONFLICT OF JURISDICTION, state and Federal courts, 105. release from state custody by Federal courts, 206. release from Federal custody by state courts, 207. concurrent jurisdiction, 208. CONFORMITY. of indictment with return, 231. when sustained, 232. when quashed, 233. eflfect of permission of court, 234. effect of variance, 234, 322. arrest of judgment for lack of, 443. CONFRONTING WITNESSES, at preliminary hearing, 169. at trial, 414. CONJUNCTIVE ALLEGATIONS, in charging offense, 261. CONSANGUINITY. See Challenge. CONSCIENTIOUS SCRUPLES. against capital punishment as ground of challenge, 400. who may complain, 401. against circumstantial evidence, 401. against defense of insanity, 401. CONSENT. to confer jurisdiction, 103. of counsel, 103. of court to district attorney's bills, 237, 239. of court to waive felony on indictment for involuntary manslaughter, 297. to entry of nolle prosequi, 351. to separation of jury in capital case, 404. to trial by less than twelve jurors, 410. to absence of prisoner, 412. liability of county where acquittal by, 4D8. CONSERVATOR OF THE PEACE. See Posse Comitatus; Sheriff. CONSIGNEE. indictment for embezzlement, 283. CO.NSISTENCY. of verdict, 435. 192 INDEX. CONSOLIDATION. of indictments, 359. verdicts in such cases, 438. judgments in such cases, 454. CONSPIRACY. jurisdiction of, 131. indictment for, 280. alleging overt acts, 280. alleging means, 281. in unexecuted conspiracies, 281. to kidnap, indictment for, 297. right to take advantage of former conviction of oo-conspirator, 337. limitation of prosecution for, 341. extent of punishment for, 467. CONSPIRACY TO DEFRAUD, settlement of, 348. CONSTABLE. See also Arbest. right to make complaint, 137. to serve warrant, 141. returns of, 229. indictment based on, 229, 230. destruction of sale bill as an offense, 303. form of deputation by, 584. return to warrant, 584. return to search warrant, 585. constable's return, 593. CONSTITUENT OFFENSE. See Included Offense. CONSTITUTIONAL LAW. act of 1879 regulating extradition, 164. of trial by jury before justices, 176. ex post facto laws, 320. arrest of judgment where act unconstitutional, 443. unconstitutional punishments, 470. of summary proceedings, 539. of act April 17, 1876, allowing appeals in, 570. CONSTRUCTION, of penal acts, 539. CONTEMPT. of coroner's court, 116. of justice, 172. indictment for, 279, 305. CONTENTS. of bill of particulars, 327. CONTINUANCE. See also Two-Tebm Rule. INDEX. atn CONTINUANCE— continued. of trial, 359. where other proceedings pending, 359. where lack of stiiBcient time to prepare, 359. absence of witnesses, 360. where called for trial at earlier term than bound for, 360. after jury sworn, 360. review of refusal, 484. form of petition for, 619. CONTINUED COURTS. See CouBTS. CONVICTION. of attempt on indictment, for offense, 277, 435. of one conspirator, 281. of involuntary manslaughter on indictment for homicide, 297. of attempt on indictment for rape, 310. of fornication on indictment for rape and bastardy, 310. of constituent offense, 436. of offense not constituent, 437. of felony where misdemeanor charged, 437. what is meant by a conviction, 453. COPY. of lost indictment, 318. of indictment, jury and witnesses in treason, 327. CORN. meaning of word in indictment, 261. CORONER. jurisdiction of, 116. inquest of, 116. justice as, 117. arrest by, 117. deputy, 117. indictment on return of, 229. duty to summon jury when sheriff disqualified, 382. to summon talesmen when sheriff disqualified, 38 J, liability of county for costs of, 510. fees recoverable, 511. under local acts, 512. fees of deputies, 513. of coroner's jury, 513. of coroner's physician, 514. form of venire for jury, 596. oath of jury, 596. oath of witnesses before, 596. inquisition of, 597. CORPORATION. how described in indictment, 255. indictment for fraud in entries of books, 294, of officers for misconduct, 307. 694 INDEX, CORPORATION— continued, securing attendance, 331. judgment by default, 332. limitation of prosecutions of officers of, 341, 342. form of indictment of, 612. petition for venire facias to summon when indicted, 624. order of court on venire facias to summon, 623. return to venire facias, 626. appearance and entry of plea by, 626. CORRECTION. See also House of Coreection. recommitment of bill for, 248. of notes of stenographer, 418, 482. of clerical errors in record, 48S. COSTS. of application for requisition, 162. of extraditing fugitives, 167. ■where unsuccessful, 167. what recoverable, 167. by whom, 167. of extradition from foreign country, 168. of imprisoned witnesses, 173, 174. where prisoner charged with offense triable before jury and justice, 177. power of jury over, in trial before justice, 180. who chargeable with costs in such cases, 182. recoverable from proceeds of forfeited recognizances, 201. in habeas corpus proceedings, 226. where plea of former acquittal or conviction sustained, 332. where plea of statute of limitations sustained, 339. when nolle prosequi entered, 351. of witnesses for indigent defendant, 314. granting new trial where costs put on prosecutor, 444. time of sentence of prosecutor for, 453. imprisonment for nonpayment as an unconstitutional punishment, 470. on appeal, 487. liability of prosecutor, 488. on ignored bills, 489. imposition by petit jury on prosecutor, 490. where prosecutor is peace officer, 491. where district attorney advised prosecution, 491. where indictment defective, 491. where joint defendants, 491. for what costs, 492. finding of jury, 492. when liability commences, 492. liability of defendant for costs, 492. liability of joint defendants, 493. where court has no jurisdiction, 493. where indictment is defective, 493. INDEX. 685 COSTS— continued. where first indictment quashed, 493. liability in felonies, 494. where defendant is indicted in his official capacity, 494. division between prosecutor and defendant, 494. sentence of prosecutor or defendant, 495. liability of county for costs, 495. in discharged cases, 495. ■where cases settled, 495. where nolle prosequi entered, 496. imposition by jury in misdemeanors, 496- by jury in felonies, 497. where indictment quashed, 498. where acquittal by consent, 498. where acquittal and no disposition of, 498. when liability commences under act of 1887, 498. when liability of county commences under prior acts, 499, liability for defendant's witnesses, 500. supervision of court over, 500. reimbursement of county, 501. enforcement of payment, 502. security to pay, 503. discharge under insolvent laws, 504. how applied for, 505. when applied for, 505. discharge by county commissioners, 506. costs before justices under act of 1861, 507. in penal actions, 508. in vagrancy, 508. in case of forfeited recognizance, 509. in desertion and surety of peace, 509. of coroners, 510. fees recoverable by, 511. under local acts, 512. of deputy coroners, 513. of coroner's jury, 513. of coroner's physicians, 514. of district attorney, 514. of assistant counsel, 515. of physicians, 516. of clerks, 516. of detectives, 516. of railroad policemen, 516. of boarding jury, 516. of boarding prisoners, 516. of serving bench warrants, 517. of removing prisoners to penitentiary, 517. of insane criminals, 517. of interpreters, 518. of stenographers, 518. 696 INDEX. COSTS — continued, of witnesses, 618. chargeable to townships and school districts, 519. taxation of, 520. reimbursement of county, 520. in certain counties, 521. relief by pardon, 526. in proceedings to support relations, 536. form of sentence of prosecutor to pay, 638. petition for discharge under insolvent laws, 642. bond for discharge under insolvent laws, 643. petition of prosecutor for discharge, 643. order on such petition, 644. petition for leave to discharge under act of 1887, 644. order of court on such petition, 645. appeal from taxation of costs, 645. COUNCIL. indictment of member for bribery, 278, 307. costs when defendant indicted in official capacity, 494. COUNSEL. See also Addresses of Counsel; Attorney and Cuent; Disibici Attobnetj Kemarks. consent to confer jurisdiction, 103. for defendajit at preliminary hearing, 170. fees payable from forfeited recognizances, 201. right to appear before grand jury, 244. continuance for lack of time to prepare, 359. right of cammunication with, 413. for defendant at trial, 416. compensation of, 416. right to be heard, 417. admissions by, 417. assisting district attorney, fees, 515. COUNTERFEITING. of national currency, jurisdiction, 106. indictment for, 281. limitation of prosecution for, 340. restitution as part of sentence, 472. COUNTER SECURITY, liability of, 192. COUNTS. See also Duplicity; Misjoinder. reference from one to another, 267. joinder of counts for different offenses, 268. of counts for cognate offenses, 268. of counts for included offenses, 270. election, 271. demurrer for misjoinder, 314. INDEX, 697 COUNTS— continued. verdict on separate counts, 439. sufficient to sustain sentence, 467. COUNTY. See also Municipal Corporatioit. liability for costs, 495. in discharged cases, 495. where nolle prosequi entered, 496. imposed by jury in misdemeanors, 496. by jury in felonies, 497. where indictment quashed, 496. where acquittal by consent, 498. where acquittal and no disposition of coats, 498. when liability commences under act of 1887, 498. under prior acts, 499. for defendants' witnesses, 500. reimbursement for costs paid, 501, 520. action to recover against, 503. costs where trial before justice under act of 1861, 507. in penal actions, 508. in vagrancy, 508. in case of forfeited recognizances, 509. in desertion, 509. in surety of the peace, 509. of coroners, 510. of coroners recoverable, 511. of coroners under local acts, 512. COUNTY COMMISSIONERS. jurisdiction of, under act of 1834, 1 13, 307. indictment for bribery, 278. discharge of insolvents under act of 1887, 506. COUNTY OFFICERS. jury conunissiouers, 367. COURTS. See also Charge of Court; Conflict of Jurisdiction ; Desertion; Jurisdic- tion; Locality op Crime; Trial. effect of irregular sessions, 103. Federal courts, 104. conflict of state and Federal, 105. removal from state to Federal, 107. supreme and superior, 107. of nisi prius, 108. of oyer and terminer, 108, 109. indictment in wrong court, 114, 115. juvenile, 115. coroner, 116. justice of peace, 117. magistrates, 120. in cities of second class, 121-123. 698 INDEX, COURTS— continued. in cities of third class, 123. in boroughs, 123. courts-martial, 123. duty where fugitive from justice arrested, 163. power to admit to bail, 185, 186. to remit forfeitures, 200. jurisdiction of habeas corpus, 209. supervision of district attorney's bills, 239. consent to waiver of felony on indictment for involuntary manslaughter, 297. description of, in perjury, 307. description of, in subornation of perjury, 309. when to dispose of motion to quash, 314. discretion in quashing, 315. review of action, 319. where bill found in wrong court, 319. before regular judges, 352. before associate judges, 352. before judges specially presiding, 353. regular sessions, 356. special coui-ts, 355. continued courts, 356. holding jurors, 382. determination of challenge, 397. control over addresses of counsel, 421. COURTS-lVIAllTIAL. jurisdiction of, 123. CRIME. for which extradition granted, 159, 164. CRIMINAL INTENT. See Intent. CRIMINAL PROCEEDINGS. See also Concubrekoe op Civil and Ceiminal Pboceedinos. where fugitive extradited, 166. mode of instituting, 169. CRIMINAL RESPONSIBILITY. See Insanity. CRIMINATION OF SELF. See Self-Inckimination. of witnesses, 419. of defendant, 420. CRUEL PUNISHMENTS, 470. CRUELTY TO ANIMALS, indictment for, 282. CUMULATIVE SENTENCE. when imposed, 467. INDEX. 699 CURING ERROR. in charge, 432. CUSTODY OF DEFENDANT. See also Defendant; Habeas Coepus. release from Federal by state courts, 207. from state by Federal courts, 206. where concurrent jurisdiction, 208. release by state courts where detained by another court, 210. by state courts where detained by governor's warrant, 212. where detained for criminal matters, 212. where not detained for criminal matters, 212, 213. what constitutes illegal confinement, 216. at trial where bailed, 413. use of word "custody" in sentence, 468. CUSTODY OF JURY WHEEL. by commissioners, 368, 375. of keys by sheriff, 268, 369, 376. CUTTING TIMBER TREES. requisites of indictment for, 302. description of trees, 302. receiving with knowledge, 302. D DANGEROUS WEAPON. See Concealed Deadlt Weapons. DATE. when statute effective, 103. amendment of, in entry of plea, 330. DEADLY WEAPON. See Concealed Disadly Weapons. DEATH. of defendant, judge, or juror as ground for discharging of jury, 337. of person whose name is drawn from jury wheel, 379. sentence of, 471. DEATH BY ABORTION. See also Abobtion. as a statutory offense, 101, 275. DECISION. See also Judgment. of magistrate, 172. of court on motion to quash, 313. DE FACTO. jury commissioners, 368. DEFECTIVE VERDICT. See Veudict. DEFENDANT. See also Counsel; Pkesence; Witnesses. conferring jurisdiction by consent, 103. 700 INDEX. DEFENDANT— continued. jurisdiction of the person, 103. arrest pending requisition, 165. effect of enticing within state, 166. of extradition, 166. right to appear before grand jury, 244. name in indictment, 254. title and residence, 256. restraint of, 413. cross-examination of, 420. comment on failure to testify, 423. presence when further instructions given, 432. where acquitted because of insanity, 462. release where acquitted because of insanity, 463. removal where insane, 463. discharge where insane, 465. where about to be discharged is insane, 466. right to appeal, 478. paper book, where defendant indigent, 481. costs of witnesses where put on prosecution, 492. liability of, for costs, 492. where joint defendants, 493. where court has no jurisdiction, 493. where indictment defective, 493. where first indictment quashed, 493. liability in felonies, 494. where indictment in official capacity, 494. division with prosecutor, 495. sentence, 495. enforcement of payment of costs, 503. discharge under insolvent laws, 504. how applied for, 505. when applied for, 505. discharge by county commissioners, 506. right to be heard in actions on ordinance or for penalties, 550. DEFENSE. motion to quash for matters of, 317. DEGREES. omission to allege as a formal defect, 313. separation of judges while determining in homicide, 413. binding instructions as to, 428. finding of jury, 438. DELAWARE. jurisdiction of crimes committed on, 129. DELAY. See Continuance. DELIBERATIONS. See Gband Juesj Juby. INDEX. 701 DELINQUENT CHILDREN. how proceeded against, 115, 116. DE MEDIETATE LINGUAE, jury, 410. DEMURRER. for duplicity, 266. to conclusion, 267. for misjoinder of counts, 271. to indictment for libel, 301. when entered, 312. when rule of court fixes time, 314. what questions raised by, 314. when sustained, 314. when refused, 314. effect of sustaining as to one count, 315. of judgment for commonwealth, 315. to evidence of commonwealth, 315, 439. withdrawal of plea to enter, 330. to plea of former conviction or acquittal, 332. to indictment because offenses barred, 338, 340. in summary proceedings, 550. to indictment, form of, 613. form of joinder in, 613. demurrer to plea, 623. joinder in, 623. DEPENDENT PERSON. See SuppoET or Relations. DEPOSITIONS. to show interference with grand jury, 248. DEPUTY CORONER. See CoBONEB. DEPUTY DISTRICT ATTORNEY. See District Attoenet. DESCRIPTION OF OFFENSE. See also Chaegino Offense; Joindee of Counts; Specific Offenses. in complaint, 137. in warrant, 142. in indictment, 258. for statutory offense, 259, 260. to protect against second prosecution, 259. where statute must be set out, 260. charging disjunctivo.ly or conjunctively, 261. negativing exceptions in statute, 261. surplusage, 263. repugnancy, 263. duplicity, 263. charging second offense in manclaughter, 298. 702 INDEX. DESCRIPTION OF PERSON. See also Amendment; Variance. in warrant, 142. of name of parties in indictment, 255. of title ajid residence, 256. of parties in adultery, 275. of parties in embezzlement, 284, 285. as broker or agent, 284. as consignee and factor, 285. school treasurer, 285. clerks and servants, 285. in indictment for kidnapping, 297. ot owner of property in larceny, 298. where unknown in liquor offenses, 301. of person to whom lottery ticket sold, 302. of owner of property in malicious mischief, 303. of constable where sale bill destroyed, 303. of officer obstructed, 305. of qualificaticms of ofiicers, 306. of person and court in perjury, 307. of owner of property in receiving stolen goods, 310. misdescription of owner as a formal defect, 313. amendments to meet proof, 324. DESCRIPTION OF PROPERTY. See also Amendment; Variance. in complaint for offense triable before justice and juiy, 177. of partners and joint owners, 257, 285. of property of municipalities, 257. of substance used in abortion, 275. in arson, 276. in housebreaking, 279. of animals in cruelty to animals, 282. of bank notes, 264, 287. in false pretenses, 287. of property in forcible entry and detainer, 289. of personal property in larceny, 298. of property where intent to steal charged, 299. of eflSgy in libel, 301. of lotteries, 302. of lottery tickets, 302. of property in malicious mischief, 302. of sale bill in indictment for mutilating, 303. of locus in quo in nuisance, 304. in assault with intent to rob, 311. misdescription as a formal defect, 313, 314. demurrer where misdescription, 314. vairiance in, 321. DESCRIPTION OF WRITINGS. See also Amendment; Variance. of written instruments, 258. INDEX. 703 DESCRIPTION OF WRITINGS— continued, in false pretenses, 288. in forgery, 290. in larceny, 298.- in libel, 300. of lottery tickets, 302. of process where sale bill of officer destroyed, 303. of rules of railroad in indictment of employees for negligence, 303. obscene pictures, 305. advertisement of medicines to prevent conception, 305. of proceedings in perjury, 307. of oath in perjury, 308. in subornation of perjury, 309. variance in, 321. in assignments of error, 483. DESERTION. effect of allowance of alimony, 100. requisition for, 162, 165. contents of return, 175. liability of surety, 191. forfeiture in, 193. limitation of prosecution for, 343. matters considered on review, 486. liability of county for costs in, 509. proceedings for, 528. as a crime, 528. as affected by a statute of limitations, 5281 compelling self incrimination in, 529. imder act of 1836, 529. complaint under, 529. what property seized, 530. binding for court, 530. proceedings in quarter sessicMis, 530. right to appeal, 531. desertion of wife under act of 1855, SSL under act of 1867, 531. jurisdiction, 531. information and return, 532. order for relief, 532. when granted, 532. m.odification of order, 533. security to pay, 533. release of surety, 533, 534. enforcement of payment, 534. discharge of prisoner, 534. recommitment of priscmer, 534. second prosecution for, 535, form of complaint for, 581. petition for, under act of 1836, 617. citation on petition, 617. 704 INDEX. DESERTION— continued. order on hearing, 618. sentence for, 636. bond of indemnity to directors of the poor, 637. recognizance, 638. DETAINER. where lack of jurisdiction appears, 104. of fugitive pending requisition, 165. where trial shows offense in another state, 165. as an exception to the operation of the statute of limitations, 344. form of, 591. DETECTIVES. indictment for misconduct, 306. compensation of, 516. DETERMINATION. of challenge for cause, 397. DIFFERENT OFFENSES. See also Counts. joinder of counts for, 269. DILIGENCE. See Continuance. DIRECTING VERDICT. See Binding Instructions. DISCHARGED CASES. See also Costs. liability of county for costs, 495. DISCHARGE OF JURY. See also Jury. when demurrer entered to commonwealth's evidence, SIS. where failure to enter plea, 330. when prisoner in jeopardy, 337. DISCHARGE OF PRISONER. See also Insolvent. where fugitive arrested pending requisition, 165. on habeas corpus, 221. effect of, 222. where plea of former acquittal or conviction sustained, 332. under two-term rule, 360, 361. in fraudulent insolvency, 362. effect of discharge, 363. where acquittal for insanity, 463. of insane prisoner, 465. when insanity appears at time of discharge, 466. under insolvent laws in fornication and bastardy, 4Tf> imder insolvent laws in desertion, 534. recommitment of, 534. form of, by justice after commitment, 590. by justice to discharge from jail, 591. INDEX. 703 DISCRETION. of court in allowing severance, 272, 357. in passing on motion to quash, 315. review of action, 319. in granting bill of particulars, 326. in permitting withdrawal of plea, 330. in granting continuance, 359. to allow trial of present insanity, 365. to allow view by jury, 409. of district attorney in prosecution, 416. in conduct of trial, 417. to appoint stenographers, 417. as to reception of evidence, 418. in granting new trial, 444. review of discretion, 484. DISFIGURE. charging intent in mayhem, 303. DISJUNCTIVE ALLEGATIONS, in charging offense, 261. in charging assault with intent to kill, 277„ DISOBEDIENCE OP MAGISTRATE'S ORDEK. to coroner, 117. DISORDERLY CONDUCT. jurisdiction of justice, 119. summary proceedings for, 555. DISORDERLY HOUSE, indictment for, 282. DISPOSITION OP GOODS. obtained on search warrant, 153. found on prisoner, 173. DISPOSITION OF PRISONER, held for juvenile court, 116. arrest without warrant, 150. arrested pending requisition, 165. ■where trial shows offense in another state, 165. where held for trial before justice and jury, 178. when change of venue granted, 364. when acquitted because of insanity, 462, 463. when he becomes insane, 463. where insanity appears at time of discharge, 466. DISQUALIFICATION. summoning of jurors where sheriff disqualified, 38S> DISSENT. from sealed verdict, effect, 441. DISTRIBUTION. of proceeds of forfeited recognizance, 201. Pa. Crim. Proc. — 45. 70(5 INDEX. DISTRICT ATTORNEY. See also Addresses of Counsel; Remabeb. certificate for requisition, 160. at preliminary hearing, 170. power to prefer criminal information, 227. to present bills without previous binding over, 237. supervision of court, 239. as adviser of grand jury, 244. interference with grand jury, 248. discretion as to joint indictment, 271. waiver of felony on indictment for involuntary manslaughter, 297. as counsel for commonwealth, 415. private counsel assisting, 415. special district attorney, 415. costs where prosecution advised, 491. fees of, 514. fees of, on appeal, 515. assistant counsel, 515. form of certificate attached to petition for requisition, 66& DISTRICT ATTORNEY'S BILXrS, See Indictment. DISTRICT COURTS, jurisdiction of, 104. DISTURBING MEETINGS, indictment for, 282. summary proceedings for, 551. DIVISION. of costs between prosecutor and defendant, 491> sentence in such case, 495. DOCKET. See also Returns. of juvenile court, 116. DOCKET ENTRIES. See Docket. DOCUMENTS FOR JURY. what may be sent out with, 424. DOORS. right to break by officer in arresting, 14C to break by citizen in arresting, 145. DOUBLE PLEADING. See Duplicity. DRAWING JURY. from jury wheel, 377. order of drawing, 379. lists of those drawn, 379. INDEX. 707 DUCKING STOOL. as an unconstitutional pimishment, 470. DUELING. indictment for, 283. DUPLICATE. meaning when used in indictment, 261. DUPLICITY. what constitutes, 263. where second offense not well charged, 264. where statute provides for distinct acts, 264. where several acts done at one time, 265. matters of aggravation, 265. words of description, 266. how taken advantage of, 266. in charging several larcenies, 298. in charging liquor offenses, 301. in charging attempt and consummated crime of obstructing justice, 305. averring sale and offering to sell, 309. where the receipt of several articles at one time is charged, 310. as a formal defect, 313. DWELLING HOUSES. See also Mansion House. use of mansion house for, 278. E ELECTION. where counts miajoined, 271. where several larcenies joined, 298. ELECTION OFFICERS. exemption from arrest, 151. ELECTION OF OFFICERS, averment of, 258. indictment for election offenses, 283. averments of election of oflScers indicted, 309. limitation of prosecutions for, 341. of jury commissioner, 367. ELECTORS. exemption from arrest, 151. ELISORS. to summon talesmen, 387. EMBEZZLE. meaning when used in indictment, 266. 708 INDEX. EMBEZZLEMENT. by officer of national bank, jurisdiction, 106. by Federal clerk, 106. application for requisition for, 161. indictment for, 284. by different classes of persons, 285. joinder of different embezzlement, 285. limitation of prosecution where tax collector, 342. of prosecution where trustees, 343. settlement of, 348. ENTERING, verdict, 440. ENTICING. fugitive within state, 166. ENTRY OF PLEA. See Plea. ERIE. jurisdiction of crimes committed on Lake Erie, 130. ESCAPE. indictment for, 286. distinction between voluntary and negligent, 286. sentence for, 474. ESTATE. omission of, as formal defect, 313. ESTOPPEL. to deny injury where plea of nolo contendere entered, 332. EVIDENCE. See also Witnesses. at preliminary hearing, 170, 171. in action on forfeited recognizance, 197. in habeas corpus proceedings, 220. how heard before grand jury, 244. what received before grand jury, 245. to show interference with grand jury, 248. demurrer to commonwealth's, 315. where indictment quashed for matters not of record, 315. bill of particulars not to secure specification of, 320. effect of bill, 327. as to adverse possession in nuisance, 342. scruples against circumstantial evidence as ground of challenge, 401. consideration of outside matters by jury, 407. to show misconduct of jury, 407. admissions by counsel, 417. order of, 418. offers of, 418. striking out, 418. waiver of error, 418. INDEX. 7081 EVIDENCE— continued, leading questions, 419. after close of case, 419. cross-examination, 419. of defendant, 420. rebuttal, 420. sur-rebuttal, 420. duty to call witnesses, 420. sending out papers with jury, 424. arrest of judgment for defects, 443. new trial where surprise, 44.5. where incompetent received, 446. where incompetent received by grand jury, OS, where mistake in evidence given, 446. where verdict against the evidence, 447. for after-discovered testimony, 448. to support motion for new trial, 451. exceptions to admission or rejection, 481. assignments of error for, 482. how brought on record, 485. determination of sufficiency in capital cases, 488. of pardon, 525. record in proceeding under statute or ordinance, 561i EXAMINATION. See also Hearing; Trial by Juey befoeb Justices. before grand jury, 244. on voir dire, 397. of witnesses, 418. cross-examination, 418. rebuttal, 419. sur-rebuttal, 419. to determine sanity, 464. in capital cases, 465. EXCBrTIONS. See also Biii of Exceptions. negativing in charging offense, 261. what exceptions to statute of limitations, 343. negativing as to statute of limitations, 345. where notes of stenographer incorrect, 418. to addresses of counsel, 421. to charge of court, 433. to points submitted, 433. in criminal cases, 477, 481. right to file, 478, 481. to what matters, 480, 481, 482. when taken, 481. EXCESSIVE BAIL. constitutional provisions, 184, 185. 710 INDEX. EXCESSIVE PUNISHMENT. See Unusttai, Punishment. EXCITEMENT. change of venue for, 363. EXCUSING. of jurors, 393. in Philadelphia, 394. EXECUTION. See also Exemption; Sentence. on judgment certified to common pleaa, 115. on judgment on forfeited recognizance, 197. of venire, 381. of venire for talesmen, 388. for costs, 502, 503. seizure in desertion under act of 1836, 529. EXECUTION OF SENTENCE. See also Sentence. of death, 471. where nuisance ordered abated, 472. form of mandate of governor to execute death sentence, 632. return to mandate, 633. oath of sheriff, 634. oath of jurors, 634. certificate of jurors, 635. commitment for nonpayment in fornication and bastardy, 636. commitment to county jail, 638. commitment to Eastern Penitentiary, 639. commitment to Huntingdon Reformatory, 640. EXECUTION OF WAIUEIANT, 142. liability of officer, 143. EXECUTIVE. See also Commutation of Sentence; Exteadition; Pardon. duty to deliver fugitive, 159. requisites of warrant, 163. power to remit forfeiture, 199. control over prisoner under sentence of death alleging insanity, 465. duty to fix time of execution of death sentence, 470. form of mandate to execute death sentence, 632. return to mandate, 633. pardon by, 522. EXEMPTION. See also Arrest. where execution on judgment certified to the common plea^ 115. where execution on forfeited recognizance, 198. from jury service, 371. in Philadelphia, 372. how claimed, 372. INDEX. 711 EX POST FACTO. Indictment on ex post facto statutes, 320. change of period of limitation, 346. EXPRESSION OF OPINION. by court in charging, 426. binding instructions, 427. EXTENT. of sentence, 467. of pardon, 52S. EXTOPvTION. as a common-law offense, 306, 307. EXTRADITION. See also Costs; Inteenational Extraditioit. detainer where no jurisdiction appears, 104. for what crimes, 159. duty to deliver fugitive, 159. application for, 160. rules of executive department, 160. who are fugitives, 162. requisites of governor's warrant, 163. proceedings on, and hearing, 163. for what offenses granted, 164. arrest pending papers, 165. disposition of prisoners where trial shows offense in another state, 165. effect of enticing prisoner within state, 166. on prisoner of extradition, 166. for desertion, 528. form of petition for requisition, 667. certificate of district attorney, 668. indorsements on application, 669. requisition on governor of asylum state, 670. appointment of agent for the state, 670. warrant of governor for arrest in Pennsylvania, 671. return of officer that fugitive was delivered up, 672. F FACT. issue to try, in habeas corpus proceedings, 222. jury as judge of, 425 FALSE PRETENSES. effect of pendency of civU proceeding, 100. jurisdiction of, 131. certificate asking requisition for, 161. requisites of indictment, 286, 287. settlement of, 347. restitution as part of sentence, 472. 712 INDEX. FALSITY. averment of, in perjury, 308. FEDERAL COURTS. See also Conflict op Jueisdictioit. how jurisdiction acquired, 103. kinds of, 104. jurisdiction of, 104, 106. conflict with state courts, 105. removal of causes from state court, 107. jurisdiction in habeas corpus, 206. FELONIOUSLY. use in indictment, 262. effect of improper use, 276. use in indictment for assault and battery, 277. in charging housebreaking, 279. in forgery, 291. in mayhem, 303. in assault with intent to rape, 309, 310. misuse as a formal defect, 313. FELONY. See also Accessories ; Costs. waiver of, on indictment for involuntary manslaughter, 297. arraignment in, 330. limitation of prosecutions for, 340. settlement of, 350. peremptory challenges in, 395. conviction of, where misdemeanor charged, 437. FIERI FACIAS. to collect in desertion, 534. FILING LIST, of jurors, 374. FILING OATH. by jury commissioners, 369. by judge who aids in selecting jury, 369. FINDING OF FACT. See also Special Finding; Verdict. in libel, 300. jury as judges of, 425. as to costs on prosecutor, 492. record of, in proceeding on statute or ordinance, 563. FINDING OF GRAND JURY, 247. record of finding, 247. FINDING OF LAW. in libel, 300. jury as judges of, 425. INDEX. 713 FINE. disposition where conviction before justice and jury, 180. division, where imposed in adultery, 276. to whom payable, 466. mittimus for, where prosecution under act of 1847, 467. imprisonment for nonpayment as an unconstitutional punishment, 470. discharge under insolvent laws, 504. how applied for, 505. whfln applied for, .505. relief by pardon, 526, 560. in case of summary conviction, 558. in case of penalties under ordinances, 559. FISH. jurisdiction of offenses under act of 1878, 114. summary proceedings for violation, 552. FIXED OPINION. See Opinion. FORCE AND ASMS. use of phrase in indictment, 262. in forcible entry and detainer, 288. in charging robbery, 310. FORCE AND VIOLENCE. in indictment for kidnapping, 297. FORCIBLE ENTRY AND DETAINER, jurisdiction of justice, 120. requisites of indictment for, 288. restitution in, 289. description of premises, 289. granting new trial after acquittal, 444. restitution as part of sentence, 472. form of sentence for, 636. FOREIGN BAIL. right to demand surrender of principal, 1 89. FOREIGNERS. jurisdiction of ambassadors, 105. of citizens, 129. how named in indictment, 254. as ground of challenge to juror, 403. FOREMAN. of grand jury, 243. form of oath of, 605. FORFEITURE. See also Bah,; Recognizance. where recognizance not returned, 174. when liability commences, 190. of recognizance, 192. in desertion proceedings, 193. 714 INDEX FORFEITURE— continued. remission of, 198. when granted, 198. when refused, 199. who may remit, 199, 200. . time of application, 200, 201. form of, 628. petition to remit, 628. FORGERY. by officer of national bank, jurisdiction, 108. jurisdiction. 111. as determined by locality, 131. application for requisition for, 161. requisites of indictment for, 289. of records, 291. as a common-law offense, 291. limitation of prosecutions for, 340, 342. restitution as part of sentence, 472. FORMAL DEFECTS. See also Amendment. in conclusion of indictment, 267. use of "unlawfully" for "wilfully," 274. omission of name of wife in indictment for adultery, 275, 313. when objections must be made, 312. when special rule of court fixes time, 314. omission of private act, 313. duplicity, 313. misjoinder of counts, 313. joinder of embezzlements, 313. improper description of agent, 313. that no one alleged as principal in indictment of accessory, 313. omission of estate, mystery, or degree, 313. failure to sliow impaneling of grand jury, 313. to show bill found true, 313. alleging "unlawful" instead of "wilful" abandonment, 313. alleging sale of liquors without stating as a beverage, 313. improper use of "feloniously," 313. omission of initial in name of owner, 313. misnomer of owner, 313. misdescription of property, 314. failure to fully describe property entered, 314. review of court's action where it quashes for, 315. motion to quash for matters of defense, 317. to quash for amendable defects, 317. waiver by entry of plea, 330, 331. correction of, by verdict, 441. arrest of judgment for, 443. FORMER ACQUITTAL. See Plea of Former Acquittal. as bar to civil action, 99. INDEX. 715 FORMER ACQUITTAL— continued, before justice and juiy, 182. effect of discharge on habeas corpus, 222. of murder as bar to involuntary manslaughter, 297. granting of new trial after, 444. in desertion, 53S. FORMER CONVICTION. See Plea of Fobmes Conviotion. FORMER JEOPARDY. See Plea, of Fobmeb Jeopabdt. FORMS. of oath of officer selecting jurors, 369. information, 580. for surety of the peace, 581. for desertion, 581. for search warrant, 582. complaint before United States Commissioner for breach of the peace, 582. warrant of justice, 583. directed to private citizen, 583. deputation by constable, 584. return to warrant, 584. search warrant, 584. retxtrn to search warrant, 585. warrant of a judge to remove a criminal from one county to another, 585. recognizance to appear at justice's hearing, 586. subpoena for justice's hearing, 586. subpoena duces tecum, 586. commitment of prisoners for further examination, 587. precept for bringing the defendant before the justice out of jail for further hearing, 587. commitment of witness for not testifying, 588. attachment for a witness, 588. recognizance to appear at court, 588. of witnesses, 589. for the peace and good behavior, 589. commitment by justice, 590. discharge by justice after commitment, 590. of prisoner from jail, 591. detainer, 591. return to court of quarter sessions, 592. constable's return to court, 593. bailpiece by clerk of court, 595. by justice, 595. venire to summon coroner's jury, 596. oath of coroner's jury, 596. of witness at coroner's inquest, 596. coroner's inquisition, 597. petition for writ of habeas corpus where detained by commitment, 597. for writ of habeas corpus where not detained by commitment, 598. 710 INDEX. FORMS— continued. return to writ of habeas corpus, 598. traverse of return, 599. oath of jury commissioners, 599. precept for venire for oyer and terminer, 599. for venire for quarter sessions, 000. venire for grand jury in oyer and terminer and return of sheriff, 600. for traverse jury in oyer and terminer and return of sheriff, 601. for grand jury in quarter sessions and return of sheriff, 602. for traverse jury in quarter sessions and return of sheriff, 603. return of jury commissioners and sheriff to writs of venire facias jwa- tores, 604. oath of foreman of grand jury, 605. of grand jurors, 605. of petit jurors, 392, 605. of jury to try issue of present insanity, 606. of officer in charge of jury, 606. of officer in charge of jury to be kept together, 606. of witness before grand jury, 606. report of grand jury, 606. criminal information, 607. presentment of grand jury, 607. indictment in oyer and terminer, C09. in quarter sessions, 610. of a corporation, 612. bench warrant, 613. demurrer to indictment, 613. joinder in demurrer to indictment, 613. motion to quash indictment, 614. petition to remove pending indictment to the supreme court, 615. order on petition, 616. answer, 616. petition for change of venue, 616. petition by indigent person for order for support, 617. order for citation under the foregoing petition, 617. final order after hearing, 618. petition for nolle prosequi, 618. order for nolle prosequi, 618. petition for continuance, 619. for bill of particulars, 619. bill of particulars, 620. plea of not guilty, 620. joinder of issue, 620. plea to the jurisdiction, 620. replication to plea to jurisdiction, 621. plea of misnomer in abatement, 621. replication to plea in abatement, 621. pleas of former acquittal and former conviction, 622. plea of former jeopardy, 622. special pleas in bar, 623. INDEX. 717 FORMS— continued. replication to plea in bar, 623. demurrer to plea, 623. joinder in demurrer to plea, 623. petition for venire facias to summon corporation indicted, 624. order of court, 625. venire facias to summon corporation, 625. return of sheriflF, 626. appearance and entry of plea by corporation, 626. subpcena, 623. oath, 627. affirmation, 627. oath of witness at trial or hearing, 627. of stenographer, 627. of interpreter, 628. of juror in examination on voir dire, 628. forfeiture of recognizance, 628. petition to remit forfeited recognizance, 628. points and answers, 629. verdict of jury, 629. special verdict, 630. motion in arrest of judgment, 632. motion for new trial, 632. sentence of death, 632. mandate of the governor to execute death sentence, 632. return of sheriff to mandate, 633. oath of sheriff, 634. of jurors, 634. certificate of jurors, 635. sentence for larceny, 635. for nuisance, 635. for fornication and bastardy, 635. commitment for nonpayment in fornication and bastardy, 636. sentence for forcible entry and detainer, 636. for surety of the peace, 636. for desertion, 638. bond of indemnity to directors of the poor for fulfilment of sentence in bas- tardy case, 636. of indemnity to directors of the poor for fulfilment of order in desertion case, 637. recognizance for support of bastard child, 638. order to destroy gambling device, 638. sentence of prosecutor to pay costs, 638. commitment to county jail, 638. to Eastern Penitentiary, 639. to Pennsylvania Industrial Reformatory, 640. petition of sheriff to transfer insane inmates, 641. order of court on petition, 641. report of commissioners, 641. commitment to asylum by court, 642. 718 INDEX, FORMS— continued. commitment to local hospital for the insane, 642. petition for discharge under the insolvent laws, 642. bond for discharge imder the insolvent laws, 643. petition of prosecutor sentenced to pay costs for discharge, 643. order on petition, 644. petition for leave to discharge under act of 1887, 644. order of court for discharge under act of 1887, 645. appeal from taxation of costs, 645. appeal and affidavit, 646. prajcipe for certiorari on appeal, 646. recognizance on appeal, 647. proof of service of appeal to superior court, 647. writ of error from supreme court, 648. certificate to record sent up, 648. petition to make appeal a supersedeas, 649. order for supersedeas, 649. cover of paper book, 650. contents of paper book, 650. assignments of error, 650. statement of questions involved, 651. bill of exceptions, 651. notice of settling bill of exceptions, 654. certificate of court, where bill of exceptions at eoimnon law not sealed, 654. petition for mandamus to seal a bill of exceptions, 654. certificate of opinion of appellate court, 657. remittitur from appellate court, 657. form of information or complaint in penal actions, 658. summons, 658. warrant, 659. capias for swearing, 660. commitment on conviction, 660. warrant to levy penalty on conviction, 661. transcript of record of conviction in summary proceeding, 661. in action for penalty, 662. precipe for certiorari and affidavit, 663, writ of certiorari, 664. return to certiorari, 664. remittitur to justice, 664. petition for special allocatur in summary proceedings, 665. allowance of appeal, 666. recognizance on appeal from sumnmry conviction, 666. application for pardon, 666. papers accompanying application for pardon, 667. petition for requisition, 667. certificate of district attorney, 668. indorsements on application, 669. requisition on governor of asylum state, 670. appointment of agent for the state, 670. warrant of governor for arrest in Pennsylvania, 671. INDEX. 719 FORMS— continued. certificate of ofiSoer that a fugitive from justice was delivered up to the agent of another state, 672. FORNICATION AND BASTARDY, jurisdiction of, 132. requisition for, 162. meaning of word "bastardy" in indictment, 261. requisites of indictment for, 291. conviction of fornication on indictment for rape and bastardy, 310. limitation of prosecution for, 342. settlement of, 348. sentence for, 475. relief from, 475. imprisonment for failure to comply, 475, 476. effect of discharge under insolvent law, 456. form of sentence for, 635. commitment for nonpayment, 636. bond of indemnity to directors of poor, 636. recognizance for support of bastard child, 638. FRAtJD. certificate asking requisition for, 161. burning with intent to defraud, joinder with axscm, 27& requisites of indictment for, 293. on hotel keepers, indictment, 294. in books of corporations, 294. fraudulent insolvency, 294. restitution as part of sentence, 472. effect of, in obtaining pardon, 526. FRAUDULENT INSOLVENCY. effect of discharge under two-term rule, 362. FRAUDULENTLY. use of, for "knowingly," 283. FRAUDULENT REMOVAL OF GOODS, settlement of, 349. FUGITIVES FROM JUSTICE. See also Bench Wabbants; Extbadition; Outlawbt. detainer where no jurisdiction, 103. who are, 162, 165. effect of enticing within state, 166. on prisoner extradited as to other actions, 16ft costs of extraditing, 167, 168. power to admit to bail, 185, FURTHER INSTRUCTIONS, to grand jury, 244. to petit jury, 424. presence of defendant, 482. 720 INDEX. G GAMBLING. indictment for, 294. summary proceeding for gambling in inns, 557. form of sentence to destroy gambling device, 633« GAME. penalty for violating game laws, 294. summary proceeding for violations, 552, GENERAL DEMURRER. See Demubbeb. GENERAL ISSUE. See Plea of Geneeai Issms. GENERAL JAIL DELIVERY. See Otee and Teeminee. GENERAL VERDICT. See also Verdict. finding of, 434. effect of, 434. where larceny and receiving stolen goods charged, 43Si. GOODS. See Desceiption of Peopebty. GOODS AND CHATTELS. See Descbiption of Peopeett. GOVERNMENT PROPERTY, jurisdiction over, 105. of employees conmiitting crime, 106. of coroner over, 116. GOVERNOR. See Executive. GRADE OF OFFENSE. See Deobees. GRAMMAR. errors in indictment, 261. GRAND JURORS. See Geawd Jtjby; Juet. GRAND JURY. See also Juey. presentment of matters given in charge, 235. of matters within its own knowledge, 236. what testimony may be "received, 236. Bummomng, 241. number of, 242, 317. foreman of, 243. INDEX. JiJ GRAND JURY— continued, swearing, 243. charge of court to, 244. conduct of proceeding, 244. examination of witnesses, 245, 317. indorsements on bill, 246, 317. finding of, 247. record of finding, 247, 317. recommitment of bill to, 247. investigation of proceedings before, 248. interference with, 248, 317. quashing for errors in, 316. evidence to show, 315. evidence to show juror disqualified, 315. to show interference, 315, 316. disqualification as ground to quash, 317. when challenged, 387. challenge for cause, 396. costs where bill ignored, 489. where bill ignored in felonies, 490. form of precept for venire for oyer and terminer, 599. precept for venire for quarter sessions, 600. venire for grand jury in oyer and terminer, 600. venire for grand jury in quarter sessions, 602. oath of foreman, 605. oath of grand jurors, 605. oath of witness before grand jury, 606. report of grand jury, 606. presentment of grand jury, 607. GREATER OFFENSE. effect of acquittal, 335. of conviction, 336. GUARDIANS OF POOR. as complainant in proceedings under act of 1836, 529. GUII/TY. See Plea or GuiLTr. GUILTY KNOWLEDGE. See Knowledge. H HABEAS CORPUS. jurisdiction of appellate courts, 107, 108. what examined on arrest of fugitive by governor's warrant, 163. where bail refused, 188. light to writ, 205. issued by Federal courts, 206. conflicting jurisdiction of state and Federal courts, 205, 208. Pa. Grim. Proc. — 46. 722 INDEX. HABEAS OOEPUS— continued, concurrent jurisdiction, 208. of state courts, 209. where detained by anotliier court, 210, 211. in what matters granted, 212. by governor's warrant, 213. on whose application granted, 214. the petition for, 215. the confinement, 216. issuance of the writ, 217. the return, 217. effect of pendency of writ, 219. the hearing, 219-222. issue to try facts, 222. the order, 222. effect of discharge, 222. review of proceedings, 223, 484. and certiorari as ancillary writs, 224. common-law writs, 225. suspension of writ, 225. costs, 226. where conviction in summary proceeding, 567. form of petition where detained by commitment, 597. petition where not detained by commitment, 598. return to writ, 598. traverse of return, 599. HABEAS CORPUS AD FACIENDUM ET RECIPIENDUM, 225. HABEAS CORPUS AD SUBJICIENDUM, 225. HABEAS CORPUS AD TESTIFICANDUM, 225. HANDWRITING. sending out papers with jury to determine, 424. HARBORING AND CONCEALING. joinder of count for, with kidnapping, 297. HARD LABOR. See Laboe. HARMLESS ERROR. as ground of reversal, 484. HAWICING AND PEDDLING. prosecution for, 294. HEARING. See also Teial by Jury before Justices. when arrested on governor's warrant, 163. preliminary hearing before justice, 169. time of examination, 170. conduct of, 170-172. decision of magistrate, 172. waiver of, 172. INDEX. 723 HEARING— continued, right to reopen, 172. return of proceedings, 174. in habeas corpus proceedings, 219. issue to try facts, 222. the order, 222. motion to quash because no hearing, 316. right to bill sf particulars where defendant present, -328. form of recognizance to appear at, 586. subpoena for, 586. subpoena duces tecum, 586. commitment for further hearing, 587. precept for bringing prisoner from jail for further hearing, 587. commitment of witness for not testifying, 588. attachment for witness, 588. recognizance to appear at court, 588. recognizance for witnesses, 589. recognizance for peace and good behavior, 589. commitment by justice, 590. HIGHWAY. description of, in nuisance, 304. HOLDING FOR TRIAL. See also Hearing; Tkiai. by Jukt BEFonE Justices. by justice, 172. before justice and jury, 178. HOMICIDE. jurisdiction where blow in one county, death in another, 128. where death occurs without the state, 128. right to kill by officer in arresting, 145. to kill by citizen in arresting, 145. to bail in, 187. charging intent in assault with intent to commit, 277. indictment for attempt, 277. requisite of indictment prior to 1860, 295. of indictment since 1860, 295. averring nature and cause of death, 296. mode and manner of killing, 296. where committed in perpetration of burglary, 296. attempts to commit, 296. attempt to commit suicide, 296. joinder of manslaughter, 296. of involuntary manslaughter, 297. arraignment in, 329. limitation of prosecution for, 340. separation of jury in capital cases, 404. of judges while determining degree, 413. petition of convict after sentence to determine sanity, 465. sentence where second conviction in second degree, 473. duty of supreme court on appeal, 486. 724 INDEX. HORSE RACING. costs cltaTgeable to township on acquittal, 519. HORSE THIEVES. rewards for apprehending, 156. proceedings to recover, 157. HOTEL. indictment for fraud on keepers of, 294. HOUSE. See DwELUNG House. HOUSEBREAKING. See also Bubglabt. indictment for, 278. HOUSE OF CORRECTION, in Philadelphia, 456, 460. HOUSE OF DETENTION, commitment to, 461. HOUSE OF ILL FAME. See Bawdy Hoitse. HOUSE OF REFUGE. sentence by justice, 118. in eastern Pennsylvania, 457. in western Pennsylvania, 458, 459. HUE AND CRY. when and how used, 155. HUNTINGDON REFORMATORY, sentence to, 456. form of sentence, 457. labor in, 462. form of commitment to, 640. HUSBAND AND WIFE. See also Desebtion. right to make complaint, 137. competency as witnesses, 171. to whose custody child awarded on habeas corpus, 213. description of wife in indictment of husband for adultery, 275. right of wife to prosecute for forcible entry and detainer, 289. failure to name wife in adultery as a formal defect, 313. IDEM SONAJSiS. See also Name. amendment to meet proof where not, 321. INDEX. 725 IDENTIFICATION. when fugitive arrested on governor's warrant, 163. IDENTITY. of offense in plea of former acquittal, 333. of offense in plea of former conviction, 336. of offense in plea of former jeopardy, 337. IDIOCY. See Insanity. IGNORED BILL. finding by grand jury, 247. as a. former acquittal, 333. ILLEGAL CONFINEMENT. See Custody; Habeas Cobpus. ILLITERACY. as ground of challenge to juror, 402. ILLNESS. of defendant, jury or judge as ground for discharge of jury, 337. IMPANELING JURY. See also Challenge; Jury. when prisoner in jeopardy, 337. in the criminal courts, 391. manner of calling, 392. IMPEACHMENT. of verdict by juror, 407. IMPRISONMENT. See also Sentence. of witnesses, 173. in penitentiaries and jails, 45.5. in Philadelphia, 456. in Allegheny county, 456. in workhouses, 456. in Huntingdon Reformatory, 456. in house of refuge, 457. in house of refuge in western Pennsylvania, 45Sb in house of correction, 460. of infants, 460. in house of detention, 461. in Philadelphia Protectory for boys, 461. labor while imprisoned, 461. detention in hospital, 462-465. where nonpayment in fornication and bastardy, 475, 478. costs of imprisoned witnesses, 519. relief by pardon, 526. in desertion, 534. in support of poor relations, 536. after conviction in summary proceeding, 558. after conviction on ordinance, 559. 726 INDEX. IMPRISONMENT— continued. in vagrancy, 559. record in proceeding on statute, 566. form of commitment to county jail, 638. commitment to penitentiary, 63-9. commitment to Pennsylvania Industrial Reformatory, 640. commitment to asylum, 642. commitment to local hospital for insane, 642. INCLUDED OFFENSES. See also Counts; Greater Offense; Lessee Offense. joinder of counts for, 268. conviction of, 436. where offense not included, 437. INCOMPETENCY. See also Challenge foe Cause; Jubt; Witness. of juror, how proved, 403. INCONSISTENCY. See Repugnancy. INCONSISTENT COUNTS. See Counts; Repugnancy. INCORRIGIBLE MINORS. jurisdiction to commit, 113, 116, 118* sentence, IIS. INCRIMINATION OF SELF. See Self Cbimination. INDECENT EXPOSURE. See Obscenity. INDICTMENT. See also Amendment; Demurrer; Motion to Quash; Objections; Vaeiance. finding for perjury during pendency of civil proceeding, 100. certification to Federal court, 107. certiorari to remove those pending, 107. where found in wrong court, 114. certification from quarter sessions to oyer and terminer, 114, IIS. on coroner's return, 117. effect of pendency of writ of habeas corpus, 219. ordinary foundation of, 228. based on returns of magistrates, 229. on coroner's returns, 229. on constable's retm-ns, 229. conformity with return, 231. when sustained, 232. when quashed, 233. effect of variance, 234. permission of court, 234. based on presentments of matters given in charge, 235. on presentments of matters within knowledge of grand jurors, 236. INDEX. 727 INDICTMENT— continued. preferred by district attorney without previous binding over, 237. supervision of court in such oases, 238. review of court's action, 239. indorsements on, 246. finding of, 247. record of finding, 247. recommitment of, 248. the caption, 250. the commencement, 251. laying time in, 252. as to the statute of limitations, 253. laying venue, 254. names, 254-256. title and residence, 256. description of property, 257. description of writings, 258. statement of offense, 258. statement of statutory offense, 260. negativing exceptions in statute, 261. meaning and use of words, 261. use of vidilicet and scilicet, 262. surplusage, 263. repugnancy, 263. duplicity in, 263. where second offense not well charged, 264. where statute provides for distinct acts, 264. where several acts done at one time, 265. matters of aggravation, 205. words of description, 266. how taken advantage of, 266. conclusion, 266. reference from one count to another, 267. joinder of counts for different offenses, 268. of counts for cognate offenses, 268. of counts for included offenses, 270. election, 271. joinder of parties, 2Tl. effect of misjoinder, 272. for abandonment, 274. for abortion, 275. for adultery, 275. for arson, 276. for assault and battery, 277. for attempts, 277. for bawdy houses, 278. for blackmail, 278. for blasphemy and profanity, 278. for bribery, 278. for burglary and housebreaking, 278. 728 INDEX. INDICTMENT— continued. for carrying concealed deadly weapons, 279. for concealing death of bastard, 279. for contempt, 279. for conspiracy, 280. for counterfeiting, 281. for cruelty to animals, 282. for disorderly houses, 282. for disturbing public meetings, 282. for dueling, 283. for election offenses, 283. for embezzlement, 284r-286. for escape, 286. for false pretenses, 286-288. for forcible entry ajid detainer, 288. for forgery, 289. for fornication and bastardy, 291. for frauds, 293. for gambling, 294. for game, 294. for hawking and peddling, 294. for homicide, 295. for attempt to commit homicide, 29S. for manslaughter, 296. for involuntary manslaughter, 297< for indecent exposure, 297. for kidnapping, 297. for labor laws, 297. for larceny, 297. for larceny by bailee, 299. for larceny by clerks, 299. for larceny from the person, 299. for libel, 299. for liquor laws, 301. for malicious mischief, 302 for mayhem, 302. for mutilation of bills, 303. for negligence or misconduct of railroad employeesi 303> for nuisance, 303. for obscenity, 304. for obstructing justice, 305. for official misconduct, 306. for perjury, 307. for pure food laws, 309. for rape, 309. for receiving stolen goods, 310. for robbery, 310. for seduction, 311. for threatening letters, 311. for violating regulations, 311. INDEX. 729 INDICTMENT— continued, service of copy of, 327. sufficiency of first in plea of lormer acquittal, 335. first in plea of fonner conviction, 336. consolidation of, 359. arrest of judgment for defects in, 443. costs on prosecutor where defective, 491. defendant where defective, 493. defendant where first quashed, 493. county where indictment quashed, 498. form of, in oyer and terminer, 609. in quarter sessions, 610. in indictment of corporation, 612. demurrer to, 613. joinder in demurrer, 613. motion to quash, 614. petition to remove, 615. order on petition, 616. answer to petition, 616. INDORSEMENT. of witnesses on bill of indictment, 245, 246. motion to quash because of errors in, 316, 317. pleas in abatement where witnesses not indorsed are examined, 317. amendment, 324. form of, on indictment in oyer and terminer, 610. on indictment in quarter sessions, 611. on application for requisition, 669. INDUCEMENT. charging in libel, 299, 300. amendments to, 301. INFAMOUS CRIMES, settlement of, 350. INFANTS. See also JwEwnj& Cottbis. commitment of, 460. INFERIOR COURTS. See Aldebmen; Justice of the Peace; Maoistbaiem. INFORMATION. See also Complaint. preferred by prosecuting officer, 227. in what cases, 227. security for costs, 504. form of criminal information, 607. INNUENDO. charging in libel, 299, 300. amendments to, 301. INQUEST. of coroner, 110, 117. 730 INDEX, INQUISITION, of coroner, 117. form of, 597. INSANITY. habeas corpus to secure release, 213. of defendant, judge, or juror as ground of discharge of jury, 337. continuance of trial to allow commission to pass on, 360. at arraignment, trial of, 365. discretion of court, 365. when applied for, 365. prejudice against defense of, as ground of challenge, 401. of juror as ground of challenge, 402. finding of, in verdict, 439. at time of sentence, 453. right to trial, 454. disposition of prisoner acquitted because of, 462. release of prisoners acquitted because of, 463. removal of insane prisoners, 463. discharge of insane prisoners, 465. where prisoner about to be discharged is insane, 466. review of refusal to appoint commission after sentence of death, 484. form of petition of sheriff to transfer inmate for, 641. order on, 641. report of commissioners, 641. commitment to asylum, 642. commitment to local hospital for insane, 642. INSOLVENT. indictment for fraudulent insolvency, 294. imprisonment of banker as unconstitutional punishment, 470. release of, in fornication and bastardy, 476. discharge from payment of costs or fine under, 504. how applied for, 505. time of applying, 505. discharge by county commissioners, 506. in desertion, 534. recommitment of defendant, 534. form of petition for discharge, 642. bond for discharge, 643. petition by prosecutor for discharge, 643. order on petition, 644. petition for leave to discharge under the act of 18S7, 64i, order of court on such petition, 645. INSPECTION. See View. INSTRUCTIONS. charge of court, 425. manner of charging, 425. as to what jury is to pass on, 425. expression of opinion, 426. INDEX. JSl INSTRUCTIONS— oontinufid. binding instructions, 427. misleading instructions, 428. instructions not misleading, 428. points and ansiwers, 429. omission to charge, 430. error in, 432. how advantage taken of errors in, 432. filing, 433. misleading instructions as ground for new trial, 446. INXEMPEKATE HABITS. alleging sale of liquors to one of, 301. INTENT. charging in assault with intent to kill, 277. in assault with intent to steal, 277. in carrying concealed weapons, 279. in false pretenses, 288. in forgery, 290. in conspiracy to kidnap, 297. in larceny, 298. intent to make breach of peace in libel, 301. in mayhem, 303. in the offense of sending threatening letters, 311. INTEREST. as ground of challenge, 401. INTERFERENCE. with grand jury, 248. continuance of trial for, 360. intermeddling with petit jury, 408. INTERNATIONAL EXTRADITION, 159. INTERPRETATION, of sentence, 468. use of word "custody," 468. use of word "month," 469. INTERPRETER. appointment by court, 418. swearing of, 418. costs of, 518. form of oath of, 627. INTERSTATE EXTRADITION. See EXTBADITION. INTOXICATING LIQUORS. See LiQuoB Laws. INVESTIGATION. of proceedings before grand jury, 248. of proceedings of petit jury, 406. 782 INDEX. IN-S^STIGATION— continued. ' how proved, 407. of insanity of prisoner, 463-466. INVOLUNTARY MANSLAUGHTER, requisites of indictment, 297. joinder with murder, 297. with voluntary manslaughter, 297. conviction of, on indictment for murder, 297. waiver of felony in charging, 297. ISSUE. See also Joinder of Issue. in habeas corpus proceedings, 222. JAIL. imprisonment in, 455. labor in, 461. in Philadelphia, 456. in Allegheny county, 456. form of commitment to, 638. JEOPARDY. See Plea of Former Jbopabdt. JOINDER. in demurrer, form of, 613. in plea, form of, 623. JOINDER OF COUNTS. charging different offenses, 268. cognate offenses, 268. included offenses, 270. election where misjoinder, 271. charging different offenses against different dsfendants, 272. JOINDER OF ISSUE. after plea of not guilty, 330. amendment, 330. form of, 620. JOINDER OF OFFENSES. See also Duplicity; Election. arson with intent to defraud insurance company, 277. of different embezzlements, 285. of forcible entry and detainer, 287. of fornication and bastardy, 292. of rape and bastardy, 292. INDEX. 733 JOINDER OF OFFENSES— continued, of adultery and bastardy, 292. of rape and fornication, 292. of homicide and manslaughter, 296. of homicide and involuntary manslaughter, 297. of voluntary and involuntary manslaughter, 297. of harboring and concealing child, with kidnapping, 297. of larceny of different chattels, 298. of attempt and actual obstruction of justice, 305. of sale and offer to sell, 309. of larceny and receiving stolen goods, 310. of different articles received at one time, 310. under ordinances, 549. under statutes, 550. JOINDER OF PARTIES. See also Joint and Sepabate Tbials. when proper, 271. where joint duty, 271, 272. effect of misjoinder, 272. charging different offenses against different persons in separate counts, 272. nolle prosequi as to one, 350. for violation of ordinances, 549. JOINT AND SEPARATE TRIALS, where joint indictment, 272, 357. verdict in such cases, 273, 438. in conspiracy, 357. discretion of court, 357. refusal as ground for new trial, 357. JOINT DEFENDANTS. costs on prosecution, where, 491. on defendant, where, 493. JOINT DUTIES. averments in indictment, 306. JOINT OWNERS. how property of, described, 255, 257. JOURNEYS. jurisdiction of crimes committed on, 126. JUDGE. See also the Various Courts; Committing Magisteate; Discretioit. regular, 352. associate, 352. change of venue when interested, 363. a;3 member of board of jury commissioners, 368. necessity of oath when he so acts, 369. presence of, at trial, 413. right of regular, to impose sentence where special, had suspended, 414-453. what jury is judge of, 425. sentence by, 453. 734 INDEX. JUDGMENT. See also Abrest or Judgment; New Triai,; Sentence. certification to common pleas, 115. decision of justice, 172. in action on forfeited recognizance, 197. in habeas corpus proceedings, 222. when motion to quash disposed of, 314. when demurrer sustained, 314. when demurrer refused, 314. when demurrer to evidence entered, 315. by default against corporation, 331. where plea of former acquittal or conviction found for defendant, 332. where plea of former acquittal or conviction found for commonwealth, 332. where such plea tried with not guilty, 333. where plea in abatement decided for commonwealth, 339. where indictments consolidated, 359, 454. on motion for new trial, 450. from which appeal lies, 480. in desertion under act of 1836, 529, 530. in desertion under act of 1867, 532. where support of relations asked, 536. in summary proceedings under statutes, 557. in proceedings under ordinances, 558. revision of, 560. effect of payment of, 560. record of, in proceeding on statute or ordinance, 668. JUDICIAL DISCRETION. See Discretion. JURISDICTION. * See also Locality git Crime; Venue. what is, 102. how acquired, 103. conferring by consent, 103. taking advantage of lack of, 103. where possession doubtful, 103. of the person, 103. waiver of irregularities, 103. effect where none exists, 104. of Federal courts, 104, 106. conflict of, 105. over officers of national banks or employees, 106. of appellate courts, 1C7, 108. of nisi prius, 108. of oyer and terminer, 108-110. of quarter sessions, 110, 111. of judges as committing magistrates, 112. of juvenile courts, 115. of coroner's courts, 116. of justice as coroner, 117. of justices of the peace, 117-120, 541, 542. INDEX. 735 JURISDICTION— continued. of magistrate, 120, 541, 542. in cities of second class, 121-123, 543. in cities of third class, 123, 543. in cities of less than third class, 543. of mayors' courts, 543. in boroughs, 123, 549. of courts-martial, 123. before justice and jury, 176. in actions on forfeited recognizance, 193, 194. in habeas corpus, 205. of Federal courts in habeas corpus, 206. where conflict with state courts, 206. where concurrent jurisdiction, 208. of state courts in habeas corpus proceedings, 209. where detained by another court of concurrent jurisdiction, 210. where detained by a lower court, 210. where detained by governor's warrant, 212. arrest of judgment where none appears, 443. costs on defendant where none, 493. of desertion under act of 1836, 529. of desertion under act of 1867, 531. of support of poor relations under act of 1836, 535. of same offense by different magistrate, 544. record of, in proceeding on statute or ordinance, 561, 562. form of plea to, 620. replication to such plea, 621. JURORS. See also Cokoner; Grand Juetj Jurt; Trial by Jury before Justices. duty to attend before justice, 179. competency of those summoned by justice, 180. JURY. See also CitAEGE of Court; Cobonee; Grand Jury; Instbuctions; Trial by Jury before Justices. in juvenile court, 116. of coroner, 116, 117. trial by, before justice, 175, 176. manner of summoning, 179. motion to quash because wheel not sealed, 316. to quash because grand juror disqualified, 315. service of copy of, in treason, 327. objections to, after plea, 330, 331. preliminary trial of plea of former acquittal or conviction, 332. finding where pleas of former acquittal or conviction tried with plea of not guilty, 333. when prisoner in jeopardy, 337. discharge of jury, 337. change of venue when impossible to obtain, 363. to try present insanity, 365. jury commissioners, 367. 73S INDEX. JDK Y — continued, re-election, 368. de facto officer, 368. vacancy, 368. meeting of board, 368. filing oath, 369. oath of officers selecting names, 369. selection of names, 370. who may be chosen, 371. exemption from jury service, 371. number to be chosen, 372. time of choosing, 372. removing old names, 373. filling the wheel, 374. certifying list, 374. sealing and custody of wheel, 375. penalty for failtire to seal and lock, 378. opening the wheel, 377. drawing jurors from the wheel, 377. where persons dead or removed, 378. order of drawing, 379. lists of those drawn, 379. jury process, 379. direction and execution of writ, 381. summoning jurora, 381. in Philadelphia, 382. where sheriff disqualified, 382. the return, 383. swearing to, 384. number to be summoned, 384. mistake in names of those summoned, 3S5. waiver of defects, 386. talesmen, 387. when ordered, 388. to whom venire for, issued, 388. who summoned, 389. number summoned, 389. talesmen in Philadelphia, 389. impaneling jury, 391. swearing jury, 392. excusing jurors, 393. challenge to the array, 394. peremptory challenges, 394. challenges under the act of 1901, 395. challenge for cause, 396. determination of challenge for cause, 397. examination on voir dire, 397. opinions, 398. conscientious scruples against capital punishment, 400. scruples against circumstantial evidence, 401, INDEX. TS: JURY— continued. scruples against insanity, 401. interest or relationship, 401. serving two successive years, 402. illiteracy, 402. insanity, 402. nonresidence, 402. alienage, 403. taxpayers, 403. religious belief, 403. proof of incompetency, 403. waiver of right to challenge, 403. effect of refusal, 404. standing aside jurors, 404. separation of jury in capital cases, 404. jury in noncapital cases, 405. misconduct of, 406. how misconduct proved, 407. personation of jurors, 408. intermeddling with, by party, 408. polling the jury, 409. view by jury, 409. trial by less than twelve, 410. jury de medietate linguw, 410. calling jurors as witness, 415. sending out papers with, 424. further instructions to, 424, 432. what jury are judges of, 425. effect of verdict on defects of jury process, 441. power to impose costs on prosecutor, 490. in felonies, 491. on peace officers, 491. finding of jury, 492. power to impose costs on defendant, 492. where joint defendants, 493. in felonies, 494. power to divide between prosecutor and defendant, 494. imposition on county in misdemeanors, 496. on county in felonies, 497. costs of coroner's, 513. of boarding, 516. trial by, on appeal in proceeding on statute or ordinance, 57i. form of venire to summon coroner's, 596. oath of coroner's jury, 596. form of oath by jury commissioners, 599. precept for venire for oyer and terminer, 599. precept for venire for quarter sessions, 600. venire for grand jury in oyer and terminer and return, 600. venire for traverse jury in oyer and terminer and return, 601. venire for grand jury in quarter sessions and retm-n, 602. Pa. Crim. Proc. — 47. 738 INDEX. JURY — continued. form of venire for traverse jury in quarter sessions and return, 603. return of cominissioners and sheriff, 604. oath of foreman of grand jury, 605. oath of grand jurors^ 605. oath of petit jurors, 605. oath of jury to try present insanity, 606. I oath of officer in charge of, 606. oath of juror in examination on voir dire, 628. oath of jurors present at execution of death sentence, 634. certificate of jurors present at execution of death sentence, 635. JURY COMMISSIONERS, when elected, 367. number elected, 367. re-election, 368. as county officers, 368. de facto officers, 368. meeting of board, 368. filing oath,369. oath in selecting najnes, 369. custody of wheel, 375. return, 383. execution of venire, 381. form of oath of, 599. return to venire, 604. JURY DE MEDIETATE LINGUJE. right to, 410. JURY TRIAL. See Jury; Tbiaij Trial by Jxjby before Justices. JURY WHEEL, filling, 370, 374. removing old names from, 373. sealing and custody, 375. custody of key, 376. penalty for failure to seal and lock, 376. opening, 377. drawing juries, 377. , JUSTICE OF THE PEACE. See also Hgaring; Maoistbate; Trial by Jury before Justices. supreme judges as, 108. judges of oyer and terminer and quarter sessions as, 112. jurisdiction of wilful trespass, 103, 113, 118. of fishing offenses under act of 1878, 114. of wilful driving on sidewalks, 114, 118. of vagrancy, 114, 118. of delinquent children, 115, 119. of incorrigible minors, 113, 116, 118. of assault and battery, 119. INDEX. 739 JUSTICE OP THE PEACE— continued, as coroner, 117. may act where, 117, 118. jurisdiction of penal actions under statutes, 118. of penal actions under ordinances, 119. of surety of peace, 120. of forcible entry and detainer, 120. of two magistrates, 120. of disorderly conduct in Allegheny county, 119. in boroughs, 123. power to issue warrants, 138. right to refuse to issue, 143. trial by jury before, 175, 176. indictment on return of, 229. jurisdiction of gambling, 294. of offenses against game, 294. of hawking and peddling, 294. averments in indictment for receiving illegal fees, 306. motion to quash becaase of misbehavior, 316. settlement of cases, 346, 347. return of, 347. jurisdiction in desertion under act of 1836, 529. in desertion under act of 1867, 531. qualification in actions on ordinances^ 544. return to certiorari, 569. appeals from, 570, 571. form of complaint before, 580. complaint for surety of peace, 581. complaint for desertion, 581. complaint for search warrant, 582. warrant of, 583. warrant directed to private citizen, 583. search warrant, 584. recognizance to appear at hearing, 586. subpoena for, 586. subpasna duces tecum, 586. commitment of prisoners for further hearing, 587. precept for bringing out of jail for further hearing, 587. commitment of witness for not testifying, 588. attachment of witness, 588. recognizance of defendant to appear at court, 588. recognizance of witnesses, 589. recognizance for the peace and good behavior, 589. commitment by, 590. discharge after commitment, 590. discharge of prisoner from jail, 591. detainer, 591. return, 592. bailpiece by, 595. 740 INDEX. JUVENILE COURTS, jurisdiction of, 115. proceeding before, 116. return to, 174. separate trial of infants, 357. commitment of infants, 460. K KEYS. of jury wheel, custody, 368, 369. KIDNAPPING. jurisdiction of, 110. requisites of indictment for, 297. joinder of count for harboring and concealing, 297o indictment for attempt, 297. KNOWINGLY. use of "unlawfully" and "fraudulently" for, 283, KNOWLEDGE. of lessor of bawdy house, 278. of falsity of pretenses, 287. of defendant in liquor offenses, 301. of receiver of trees unlawfully cut, 302. KNOWLEDGE OF GEAND JURORS. See Pbesentment. L LABOR. imprisonment at hard, 455. by convicts in penal institutions, 461. LABOR LAWS. requisites of indictment for violations, 297. LANDMARKS. jurisdiction of justice, 118. LANGUAGE. See also Desobiption of Writings ; Meaning or WoBos. grammatical defects in indictment, 261. of libel, 300. LARCENY. jurisdiction of, 130. INDEX. 741 LARCENY— continued. charging intent in assault with intent to commit, 277. averring intent in indictment for, 297. description of property, 298. amendments of description, 298. ownership of property, 298. joinder of larceny of different articles, 298. assault with intent to steal, 299. finding of value of goods in verdict, 439. form of sentence for, 635. LAKCENY BY BAILEE. requisites of indictment, 299. LARCENY BY CLERK. requisites of indictment, 299. LARCENY FROM PERSON. requisites of indictment, 299. LAW. See also Finding of Law. jury as judges of, 425. LAW LIBRARY. rightito share in proceeds of forfeited recognizances, 202. LAYING TIME. See Time. Laying venue. See Venue. LEADING QUESTIONS, prohibition of, 419. LEGISLATURE. exemption of members from arrest, 151. LESSER OFFENSE. effect of acquittal, 335. of conviction, 336. LEWD PICTURES. description of, 305. LIBEL. effect of pendency of civil action, 100. jurisdiction of, 132. requisites of indictment for, 299. inducement, 299, 300. colloquium, 299, 300. innuendo, 299, 300. description of the libel, 300. publication, 301. variance in, 301. amendments, 301. effect of demurrer, 301. 742 INDEX. LICENSE. See also Liquor Laws. alleging sale of liquor without, 301. indictment for failure to take out theatrical, 311. for failure to take out, for oyster cellar, 311. summary proceedings for violation of license laws, 565. LIMITATION OF ACTIONS. See Statute of Limitations. LIST OF JURY. in treason, 327, 415. selected, 374. drawn, 379. LIST OF WITNESSES. in treason, 327, 415. LOCAIjITY of CRIME. See also Change of Venob. generally, 124. of treason against the state, 125. of accessories to felonies, 125. of accessories to misdemeanors, 126. of crimes committed near boundary lines, 126. of crimes committed on journeys, 126. of offense begun in one county and completed in another, 127. of homicide where death occurs outside of state, 128. of homicide where death occurs in county other than one where blow was delivered, 128. of crimes committed on boundary waters, 129, 130. of bigamy, 130. of larceny, 130. of receiving stolen goods, 130. of false pretenses, 131. of forgery, 131. of conspiracy, 131. of libel, 132. of fornication and bastardy, 132, 292. of taking females for intercourse, 132. of desertion, 133, 531. against the United States, 133. LOCAL PREJUDICE. See Change of Venue. LOCUS IN QUO. description in nuisance, 304. LOST INDICTMENT. motion to quash the substitute, 318. notice of intention to submit new bill, 318. supplying by certified copy, 318. LOTTERY. requisites of indictments for, 302. INDEX. 743 LOTTERY— continued. description of lottery, 302. of lottery tickets, 302. of persons to whom sold, 302. LYING IN EXPENSES. sentence for, in fornication and bastardy, 475. form of commitment for nonpayment, 636. LYING IN WAIT. charging in mayhem, 303. M MAGISTRATE. See also Aldeemen; Justice or the Peace. jurisdiction in cities of first class, 120. in cities of second class, 121, 123. power to issue warrants, 139. return of, 174. jurisdiction in desertion under act of 1836. 529. MAIM. See also Mayhem. alleging in mayhem, 303. MALICE. See Maliciously. MALICIOUSLY. use of, for "wilfully," 276. in indictment for attempt to murder, 277. in indictment for housebreaking, 279. in indictment for carrying concealed weapons, 279. in indictment for malicious mischief, 302. in indictment for mayhem, 302. MALICIOUS MISCHIEF. requisites of indictment for, 302. use of words to describe, 302. inanimate property, 302. description of property, 302. MALICIOUS TRESPASS. necessity of record under act of 1881, 566. appeal in, 575. MANACLED. where prisoner so brought in presence of grand jury, 244, 445. restraint at trial, 413. MANDAMUS. to justice to allow appeal in proceeding on statute or ordinance, 574. form of petition for, to compel sealing of bill of exceptions, 654. 744 INDEX. MANDATE. form of, by governor to execute death sentence, 632. form of return to, 633. MANSION HOUSE. use of, for dwelling house, 278. MANSLAUGHTER. See also Homicide; Involitntabt MANSLAUOHns. jurisdiction of, 110. joinder with murder, 296. with involuntary manslaughter, 297. charging with sscond offense, 297. limitation of prosecutions for, 340. MARRIED WOMEN. See Desertion; Husband and Wife. MATERIAL AVERMENTS. See also the Specific Offenses, averment as to materiality in perjury, 308. MAYHEM. See also Maim. jurisdiction of, 110. requisites of indictment for, 302. use of "feloniously," 303. "lying in wait," 303. MAYOR. jurisdiction in cities of second class, 121, 123. in cities of third class, 123, 543. power to issue warrants, 139. to admit to bail, 185. courts of, 543. MEANING OF WORDS, in indictment, 261. bastardy, 261. com, 261. transient, 261. duplicate, 261. feloniously, 262. then and there, 262. with force and arms, 262. videlicet or scilicet, 262. grammatical errors, 261. embezzle, 266. against the peace and dignity, 266. against the form of the statut«, 267. use of "unlawfully" for "wilfully," 274. effect of improper use, 276. use of "maliciously" for "wilfully," 276. "maliciously" in charging attempt to murder, 277. INDEX. 745 MEANING OF WORDS— continued. use of "mansion house" for "dwelling house'' in burglary, 278. "feloniously" and "burglariously," 278. "maliciously" and "wilfully" in housebreaking, 279. "unlawfully" and "maliciously" in carrying concealed weapons, 279. "unlawfully" and "fraudulently" for "knowingly," 283. "with a strong hand" in forcible entry and detainer, 288. "force and violence" in indictment for kidnapping, 297. in libel, 300. "unlawfully, wilfully, maliciously, and wantonly" in malicious mischief, 302. "voluntarily, wickedly, maliciously, unlawfully, and feloniously" in may- hem, 302. "mischievously" in malicious mischief, 302. "feloniously" in mayhem, 303. "lying in wait" in mayhem, 303. "feloniously" in charging assault with intent to ravish, 309. "the said" as words of reference, 310. "force and arms" in robbery, 310. use of "seduce" in charging seduction, 311. "custody" in sentence, 438. "month" in sentence, 469. MEANS. setting out in indictment for conspiracy, 281. of killing in homicide, 296. MERCANTILE LICENSE. jurisdiction of justice where failure to take, 110. MILEAGE. of witnesses, 518, 519. of nonresident witnesses, 519. MINISTERIAL OFFICERS. power to release on bail, 187. MINORS. See also Infants. to whose custody awarded on habeas corpus, 21S. alleging sale of liquors to, 301. commitment of, 460. MISCHIEVOUSLY. in malicious mischief, 302. MISCONDUCT. by officer in enticing fugitive within state, 166. of railroad employees, indictment of, 303. of jury, 406. how proved, 407. personation of juror, 408. intermeddling with jury by party, 408. 746 INDEX. MISCONDUCT IN OFFICE. jurisdiction of justice for taking illegal fees, 119> failure to make returns, 174. sentence for, 473. MISDEMEANOR. See also Acoessoeies ; Costs. arraignment in, 330. limitation of prosecutions for, 340. peremptory challenge in, 395. conviction of felony where charged, 437. MISJOINDER. of counts, effect, 271. of parties, effect, 272. as a formal defect, 313. demurrer for, 314. arrest of judgment for, 443. MISLEADING INSTRUCTIONS, wliat are, 428. what are not, 428. as ground for new trial, 446. MISNOMER. how taken advantage of, 256. as a formal defect, 313. demurrer for, 314. plea in abatement for, 339. form of plea in abatement for, 621. form of replication to such plea, 621. ' MISTAKE. in names of jurors summoned, 385. in evidence as ground for new trial, 44& MITIGATION. See also Sentence. of sentence imposed, 467- in penal actions, 560. MITTIMUS. See Commitment. MODE AND MANNER. of killing in indictment for homicide, 296k MODIFICATION. of sentence imposed, 467. of sentence by appellate court, 486. of order in desertion, 533. of sentence in penal actions, 560. MONEY. See Desceiption of Wkitings, INDEX. 747 MONONGAHELA. jurisdiction of crimes committed on, 130. MONTH. meaning of word in sentence, 4G9. MOTION FOR A NEW TRIAL. See New Teial. MOTION IN ARREST. See Akbest of Judgment. MOTION TO QUASH. See also Formal Defects; Indictment. want of conformity of indictment and return, 231-233. effect of permission of court, 234. '' effect of variance, 234. where too many grand jurors, 242. for duplicity, 266. fov defect in conclusion, 267. where count referred to is abandoned, 268. where counts misjoined, 271. where! indictment, when summary conviction provided, 294. for defect of innuendo in libel, 300. when made, 312. when special rule of court, 314. when disposed of, 314. how made, 315. addressed to court's discretion, 315. review of action, 315, 319. for matters not of record, 315. where no preliminary examination, 316. for defects in information or transcript, 316. for errors in grand jury, 316. for matters of defense or amendable, 317. where offense barred, 318. where other proceedings pending, 318. where another indictment pending, 318. where first bill lost, 318. where bill found at wrong court, 319. effect of quashing, 319. effect of repeal of statute, 319. withdrawal of plea to permit, 330. where offense barred by statute of limitations, 339, 346. array, when officers selecting jury not qualified, 370. array, when names not properly selected, 371. where misconduct of jury, 406. how proved, 407. where party intermeddles with juror, 408. refusal as ground for new trial, 445. exceptions to refusal, 482. review of quashing, 483. 748 INDEX. MOTION TO QUASH— continued. opinion filed as part of record, 4S5. form of, 614. MOULDING VERDICT, by court, 440. MUNICIPAL CORPORATION. See also BonouGirs; Cities. description of property of, 257. •ndictment of councilman for bribery, 278. MURDER. See also Homicide. jurisdiction of, 110. statute of limitations in, 340. MUTILATION OF BILLS. requisites of indictment for, 303. MYSTERY. omission to allege as formal defect, 313. N NAME. See also Disscbiftion of Pebson^s; Juby; Thibd Phssoitk stating in indictment, 254. of wife in indictment of husband for adultery, 275. where unknown, 301. of minors, 301. demurrer for misnomer, 314. variance in, 321. amendments to meet proof, 324. selection of names for jury, 370. who chosen, 371. exemption from service, 371. in Philadelphia, 372. removing old names from wheel, 373. mistake in, of juror summoned, 385. NATIONAL BANKS. jurisdiction over officers committing crime, 10S> NATURE AND CAUSE OP ACCUSATION. See Complaint. NATURE AND CAUSE 0? DEATH. alleging in homicide, 296. NAVIGABLE WATERS. jurisdiction over, 105. NECESSITY. for discharge of jury, 337. INDEX. J49 NEGATIVING. exceptions in statute, 261. where proviso in statute, 261. under pure food law, 309. NEGLIGENCE OF RAILROAD EMPLOYEES, requisites of indictment, 303. NEGLIGENT ESCAPE. See Escape. NEW JERSEY. compact with Pennsylvania, 129. NEWSPAPER. reading by jury as ground for new trial, 407. NEW TRIAL. jeopardy when granted, 338. for refusal of severance, 357. where juror with fixed opinion acted, 400. where jtiror with scruples against capital punishment acted, 401. where relations of juror called as witnesses, 401. whei'e juror relation of deceased, 402. where objection to relationship not made immediately, 402. where juror served two successive years, 402. wliere juror illiterate, 402. where juror insane, 402. where juror nonresident, 402. when objections to juror not made before impaneling, 404. for separation of jury in capital case, 404. for separation of jury in noncapital case, 405. for misconduct, 406. where personation of juror, 408. where party intermeddles with jury, 408. where defendant not present, 412. where error in opening addresses, 421. where error in closing addresses, 422. reference to failure of defendant to testify, 423. improper remarks during trial, 423. where exceptions withdrawn, 433. power to grant, 444. after acquittal, 444. discretion of court, 444. for irregularity of pleadings, 445. for irregularity as to juries, 445. for irregularity in trial, 445. for matters of evidence, 445. because of misleading instructions, 446. where verdict against the law, 447. where verdict against the evidence, 447. where verdict uncertain, 448. where after-discovered testimony, 448. where known before, 449. 760 INDEX. NEW TRIAL — continued. where merely cumulative, 449. where immaterial, 400. application for new trial, 450. argument and determination of, 451. review of court's action, 451, 483. effect of previous motion in arrest of judgment, 451. exception to refusal, 483. reasons for, as part of record, 485. form of motion, 632. NIGHTTIME. in charge for burglary, 278. in housebreaking, 279. NISI PRIUS. court of, 108. NOLLE PROSEQUI. where parties misjoined, 272. where receipt of several articles alleged in one count, 310. entry of, as an acquittal, 333. where settlement made, 350. in what cases entered, 350. as to one of many defendants, 350. when entered, 350. effect of, 351. costs when entered, 351. liability of county where entered, 496. form of petition lor, 618. form of order for, 618. NOLO CONTENDERE. See Plea of Nolo Contendeeb. NON COMPOS MENTIS. See Insanity. NON EST INVENTUS. return to warrant, 137, 532. NONRESIDENCE. as ground of challenge to juror, 402. of witnesses, mileage, 519. NOT GUILTY. See Plea of Not Guilty. NOTICE. of intention to submit new bill for one lost, 318. of intention to seize property under act of 1836, 620. of appeal, form, 647. of settling bill of exceptions, form of, 654. NUISANCE. effect of pendency of civil proceeding, 100. INDEX. 751 NUISANCER— continued. jurisdiction where crime begun in one county and completed in another, 127. profanity as, 278. disorderly house, 282. requisites of indictment for, 303. description of locus in quo, 303. common-law nuisances, 304. conclusion of indictment, 304. limitation of prosecution for, 341. granting new trial after acquittal, 444. abatement as part of sentence, 472. summary proceedings for, 556. form of sentence for, 635. NUL TIEL RECOED. as a replication to the plea of former acquittal or conviction, 332. NUMBER. of grand jtirors, 242. of jurors to be placed in wheel, 372. of jurors to be summoned, 384. of talesmen summoned, 389. NUNC PRO TUNC. certification of indictment to oyer and terminer, 115. issuance of venire for oyer and terminer, 380. allowance of appeal in proceeding on statute or ordinance, S72. O OATH. to complaint, 136, 137. form of, at hearing, 170. charging falsity in perjury, 308. charging materiality in perjury, 308. description of, in perjviry, 308. filing by jury commissioners, 369. taking when jurors selected, 369, 370. necessity for, by judge, 369. taking by sheriff, 370. to return of venire, 384. of interpreters, 418. form of oath of coroner's jury, 596. oath of witness before, 596. oath of foreman of grand jury, 605. oath of grand jurors, 605. oath of petit jurors, 605. oath of jury to try present insanity, 606. oath of officer in chav^je of jury, 606. ; oath of officer in charge of jury to be kept together, 606. 762 INDEX. OATH— continued. oath of witness before grand jury, 606. oath by witness at trial or hearing, 627. oath by stenograplier, 627. oath by interpreter, 628. oath of juror in examination on voir dire, 628. oath by slieriiT executing death sentence, 634. oath by jurors present at execution, 634. OBJECTIONS TO INDICTMENTS. See also Fobmal Dkbects; Indictment. time to make, 312. effect of failure, 313. by demurrer, 314. by motion to quash, 315. for matters not of record, 315. where no preliminary examination, 316. for defects in information or transcript, 31& for errors in grand jury, 316. for matters of defense, 317. for amendable defects, 317. where oflFense barred, 318. where other proceedings pending, 318. pending of aJiother indictment, 318. where first bill lost, 318. where bill found in wrong court, 319. effect of quashing and review, 319. effect of repeal of statute, 319. variance as to place, 320. as to time, 320. after plea entered, 330. OBSCENE PICTURES. description of, 305. OBSCENITY. requisites of indictment for, 304. as a statutory offense, 305. OBSTRDCTING JUSTICE. requisites of indictment for, 305. joinder of attempt and consummated crime, 305. OFFERS. in writing, 418. striking out, 418. of incompetent testimony as ground for new trial, 445. OFFICER. See also ^Vbrest. how described in indictment, 255. in indictment for obstructing justice, 305. description of qualification, 300. form of oath of, in charge of juiy, 606. oath of in charge of jury to be kept together, 606. INDEX. 755 OFFICIAL MISCONDUCT. effect of pendency of civil proceeding, 100. requisites of indictment for, 305. averment of qualification, 306. by detectives, 306. by oouncilmen, 307. by officer of corporation, 307. by county commissioners, 307. limitation of prosecution of officers of bank or corporation, 342. sentence for misbehavior in, 473. OMISSION TO CHAEGE. vfhere instructions not asked for, 430. generally, 431. OPEN COURT. publicity of trial, 453. at sentence of prisoner, 453. OPENING ADDRESSES. See Addresses of Counsel. OPENING WHEEL, of jurors, 377. OPINION. See also Challenge fob C.^use; Judgment. of juror as ground of challenge for cause, 397. where fixed, 398. where based on evidence read, 398, 399. where he sat in former proceeding, 400. of court in charging, 426. binding instructions, 427. filing of written opinion by court, 433. OR. See Disjunctive Allegations. ORDER. to remove insane prisoner, 462, 463, 464, 465. form of, on petition to remove pending indictment, 618. on petition for support, 618. on order for noll-e prosequi, 618. on petition for venire facias to summon corporation, 629. to destroy gambling device, 638. on petition to transfer insane inmate, 641. on petition for discharge by prosecutor, 644. on petition for leave to discharge under act of 1887, 645. on petition to make appeal a supersedeas, 649. ORDER OF PROOF. examination of witnesses, 418. cross-examination, 419. rebuttal, 420. sur-rebuttal, 420. Pa. Crim. Proc— 48. 754 IKDEX. ORDINANCES. See Penal Actions under Ordinances. OUTLAWRY, 158, 470. OVERSEERS OF POOR. as complainants under act of 1S36, 529. OVERT ACTS. alleging in indictment for conspiracy, 280. OWNERSHIP. See Description of Persons; Description of Fbofebtt. OYER AND TERMINER. supreme court as judges of, 107, 108. courts of, 108, 109. jurisdiction of, 109. power of judges, 112. certification of indictments to, 114, 115. precept for jury in, 380. issuance of venire, 381. number of jurors, 384. peremptory challenges in offenses exclusively triable in, 305. OYSTER CELLAR. indictment for failure to take out license, 311. PAPER BOOKS, on appeal, 480. by indigent defendants, 481. form of cover, 650. contents, 650. assignment of error, 650. statement of questions involved, 657. PAJRDON. entry of plea, 339. by whom, 339. by serving term, 469, 524. by the president, 522. by the governor, 522. rules of pardon board, 522-524. proof of, 525. extent of, 525, 560. when effective, 525. conditional, 525. effect of fraud, 526. of pardon, 526. competency of pardoned prisoner as witness, 526. fulfllment of sentence as, 527. INDEX. 766 PARDON— continueu. form of application for, 666. papers accompanying application, 667. PARTIAL ACQUITTAL, effect of, 333. PARTICULARS. bill of, see Biti or Pakticulaes. PARTNERS. how property of, described, 255, 257. indictment for embezzlement by, 285. PEACE OFFICERS. where costs impcsed on, 491. PEDDLERS. jurisdiction of justice, 118. PENAL ACTIONS UNDER ORDINANCES, limitation of prosecution for, 342. liability of county for costs in, 508. costs on appeal, 508. form of proceeding, 539. effect on other remedies, 541. jurisdiction of justices, 542, IID. of magistrates, 542. in cities of second class, 543. in cities of third class, 543. mayor's courts, 543. jurisdiction of burgess, 543. of same offenses before different magistrates, 544ii qualification of officer hearing, 544. party plaintiff, 545. institution of proceeding under, 547. process in, 548. effect of appearance, 548. arrest without warrant, 548. joinder of defendants and offenses, 549. presence of defendant, 550. right to be heard, 550. judgment, 559. execution, 559. revision of judgment, 560. effect of payment, 560. disposition of fines collected, 560. record showing ordinance violated, 563. showing evidence, 565. showing finding of fact, 565. showing judgment, 566. certiorari, 567. allowance of, 568. effect of appealing, 508. 766 INDEX. PENAL ACTIONS UNDER ORDINANCES— continued, where no judgment passed, 569. issuing of certiorari, 569. consideration of case on, 569. appeals, 569. under act of 1876, 570. where taken, 571. time of appealing, 571. allowance of appeal, 572. nunc pro tunc, 572. application for allowance, 573. striking off appeals, 574. mandamus to justice, 574. proceedings on appeal, 574. appeals to superior and supreme courts, 576. form of complaint, 658. summons, 658. warrant, 659. commitment on conviction, 660. transcript of record, 662. prsecipe for certiorari, 663. writ of certiorari, 664. return to certiorari, 664. remittitur, 664. recognizance on appeal, 666. PENAL ACTIONS UNDER STATUTES. See also Penal Actions itndeb Ordinances; Summabt Pboceedikos. what are, 539. constitutionality of such actions, 539. construction of such statutes, 540. effect on other remedies, 540. jurisdiction of justices, 541, 118. of same offenses before different magistrates, 541, party plaintiff, 545. institution of proceeding, 547. process in, 547. effect of appearance, 548. joinder of offenses, 550. presence of defendant, 550. right to be heard, 550. disturbing religious meetings, 551. fish and game laws, 532. pure food laws, 552. Sunday law, 553. liquor on Sunday, 554. disorderly conduct, 555. profanity, 555. license laws, 555. vagrancy, 556. nuisances,' 556. INDEX. 757 PENAL ACTIONS UNDER STATUTES— continued, road laws, 557. other acts, 557. judgment, 557. execution, 558. revision of judgment, 560. effect of payment, 560. disposition of fines collected, 560. record of institution of proceeding, 561. of issuance of process, 561. showing jurisdiction, 561. showing statute violated, 562. showing presence of defendant, 564. showing evidence, 564. showing finding of fact, 565. showing judgment, 566. showing imprisonment, 566. under act of 1881, 566. habeas corpus by defendant, 567. certiorari, 567. allowance of, 568. efl'ect of appealing, 568. where no judgment passed, 569. issuing of certiorari, 569. consideration of case on, 569. appeals, 569. under act of 1876, 570. where taken, 571. time of appealing, 571. allowance of appeal, 572. nunc pro tunc, 572. application for allowance, 573. striking off appeals, 574. mandamus to justice, 574. proceedings on appeal, 574. appeals under act of 1881, 575. to superior and supreme courts, 57ft. form of complaint, 658. summons, 658. ■warrant, 659. commitment on conviction, 660. warrant to levy penalty, 661. transcript of record, 662. praecipe for certiorari, 663. ■writ of certiorari, 664. return to certiorari, 664. remittitur, 664. petition for special allocatur, 665. allowance of appeal, 666. recognizance on appeal, 666. 758 INDEX. PENDENCY OF ANOTHER INDICTMENT, motion to quash for, 318. PENDENCY OF OTUJiR PROCEEDINGS, of civil proceeding, 99, 318. eiTect as to trial, 100. in perjury, 100. of writ of habeas corpus, 219, 318. motion to quash for, 318. plea in abatement for, 339. PENITENTARIES. application for habeas corpus by inmate of, 220. imprisonment in, 45S. separate and solitary confinement, 453. length of sentence, 455. labor in, 461. form of commitment to, 639. PENNSYLVANIA. compact with' New Jersey, 129. PENNSYI^VANIA INDUSTRIAL REFORMATORY. See Huntingdon Eefokmatoky. PENNSYLVANIA STATE LUNATIC HOSPITAL, removal of prisoner to, 463. form of commitment to, 642. PEREMPTORY CHALLENGE, under act of 1860, 394. under act of 1901, 395. where both felony and misdemeanor charged, 395. PERJURY. See also Subornation or Pebjuby. eilect of pendency of the civil proceeding, 100, 309. jurisdiction, 111. competency of witness convicted of, 171. requisites of indictment for, 307. description of proceeding, 307. of oath, 308. alleging materiality, 308. falsity, 308. limitation of prosecution for, 340. PERSON. See also Defendant; Pbosecutob. who may make complaint, 137. PERSONAL PROPERTY. See Desobiption of Pboperty. PERSON ARRESTED. See also Defendant; Rewards. how disposed of, where no warrant, 150. INDEX. 769 PERSON AURESTED— continued, description of, in warrant, 142. rights, when arrested' on governor's warrant, 163. PERSONATION, of jurors, 408. PETITION. to receive reward for apprehending horse thief, 157. to remit recognizance, 198. for habeas corpus, 21.5. for commission to determine sanity, 464. in capital cases, 465. to support relations, 535. form of, for habeas corpus when detained by commitment, 597. for habeas corpus when not detained by conxmitmeut, 598. return to, 598. traverse to return, 598. to remove pending indictment, 615. change of venue, 616. by indigent person for support, 617. for nolle prosequi, 618. for continuance, 619. for bill of particulars, 619. to summon corporation indicted, 624. to remit forfeiture of recognizance, 628. to transfer insane inmate, 641. for discharge by insolvent, 642. by prosecutor for discharge, 643. for leave to discharge under act of 1887, 644. to make appeal a supersedeas, 649. for mandamus to seal bill of exceptions, 654. for leave to appeal in summary proceedings, 665. allowance, 666. for pardon, 666. for requisition, 667. PETIT JURY. See also JuBY. number in quarter sessions, 384. in oyer and terminer, 385. PHILADELPHIA PROTECTORY FOR BOYS, commitment to, 461. PHYSICIAN. employed by coroner, compensation, 514. by district attorney, compensation, 516. PICKING POCKETS. indictment for attempt, 277. PLACE. See also Locautt of Cbime. description of, in nuisance, 304. 760 INDEX. PLACE — continued, variance in, 320. where appeal returnable, 480. PLACE OF TRIAL, before justices, 117. PLAINTIFFS. in action on recognizance, 194. on whose application habeas corpus granted, 214. in actions on statutes, 545. in actions on ordinances, 545. PLANK ROADS. See TuENPHiE Roads. PLEA. See the Special Pleas, in trial before justice and jury, 178. objections to indictments to be made before entered, 313. right to enter where judgment of respondeat ouster, 315. how entered in murder, 329. how entered in other cases, 330. where change of venue granted after plea entered, 330. when plea entered, 330. amendment of date of entry, 330. form of demurrer to, 623. joinder in demurrer to, C23, by corporation, 626. PLEADING AND PROOF. See Vakiaxce. PLEADING OVER. See Respondeat Ouster. PLEADINGS. See the Special Pleas, new trial for irregularity in, 445. reversal for insufficiency, 484. PLEA IN ABATEMENT. for misnomer, 256, 339. because witnesses not indorsed on bill were examined, 317, 339. where another indictment pending, 318, 339. disposition of plea, 339. judgment, 339. form of, for misnomer, 621. PLEA IN BAR. form of, 623. replication to, 623. PLEA OF FORMER ACQUITTAL. See also Fobmeb Acquittal. involving matter of record and fact, 332. INDEX. 761 PLEA OF FORMER ACQUITTAIr— continued, ■what stated in, 332. demurrer by commonwealth, 332. traversing plea, 332. replication, 332. nul tiel record, 332. how issue determined, 332. effect of verdict for defendant, 332. of verdict for commonwealth, 332. where plea of not guilty also entered, 333. verdict in such case, 333. what constitutes acquittal, 333. where nolle prosequi entered, 333, 351. where bill ignored, 333. where partial acquittal, 333. identity of offense, 334. acquittal of greater offense, 335. acquittal of lesser offense, 335. sufficiency of first indictment, 335. review of court's action, 336. where nolle prosequi entered as a result of settlement, 350, 351. where discharge under two-term rule, 3G3. form of, 622. PLEA OF FORMER CONVICTION. involving matter of record and fact, 332. what stated in, 332. demurrer by commonwealth, 332. traversing plea, 332. replication, 332. nul tiel record, 332. how issue determined, 332. effect of verdict for defendant, 332. of verdict for commonwealth, 332. where plea of not guilty also entered, 333. verdict in such case, 333. identity of offense, 336. conviction of greater or lesser offense, 336. sufficiency of first indictment, 336. review of court's action, 336. form of, 622. PLEA OF FORMER JEOPARDY, constitutional provision, 337. when in jeopardy, 337. where jury discharged, 337. where new trial granted, 338. identity of offense, 338. form of, 622. PLEA OF GENERAL ISSUE. See PiiBA OF HOT Guilty. 762 INDEX. PLEA OF GUILTY, effect of entry, 330. withdrawal of, 330. PLEA OF MISNOMER. See Misnomer. PLEA OF NOLO CONTENDERE, OR NON VOLO CONTENDERE, effect of, 332. advantage of, 332. withdrawal of, 332. use of, to show guilt of principal, 332. PLEA OF NOT GUILTY. in trial before justice and jury, 178. joinder of issue, 330. effect of entry, 330, 331. entry by court where defendant stands mute, 331. verdict where tried with plea of former acquittal or conviction, 333. form of, 620. joinder in, 620. PLEA OF PARDON, entry of, 339, 525. by whom, 339, 525. PLEA OF THE STATUTE OF LIMITATIONS. See Statute of Limitations. PLEA TO THE JURISDICTION, form of, 620. replication to, 621. POINTS AND ANSWERS, how answered, 429. where wrongly refused, 430. where defendant has presented it, 430. of commonwealth, 430. filing by court, 433. form of, 629. POLICEMEN. compensation of railroad officers, 516. POLLING JURY, right to, 409. presumption of allowance, 409. POLLS. See Jdbt. POOR. See Dbmxndant; Desertion; Support op RxLATioNa. POOR PRISONER. See Defendant. POSSE COMITATUS. what is, 153. INDEX. 763 POSSE COMITATUS— continued, who summoned, 154. how power exercised, 154. POSSESSION. necessary averment in forcible entry and detainer, 288. POST-MORTEM EXAMINATION. See CoKONER. POSTPONEMENT. See Continuance. PIl^CIPE. for certiorari on appeal, farm of, 646. for certiorari to justice, 663. PRECEPT. for venire for jurors before justices, 179. fixing number of jurors, 372. to draw jury, 379. one precept for quarter sessions and oyer and terminer, 380 for special venire, 380. form of, for bringing prisoner before justice for further hearing, 587. for venire for oyer and terminer, 599. for qxiarter sessions, 600. PREJUDICE. See also Jury. change of venue for, 363. PRELIMINARY EXAMINATION. See Hearing; Tkial by Jury before Justices. PRELIMINARY HEARING. See also Hearing; Trial by Jury before Justices. PRESENCE. of spectators at trial, 411. of accused at trial, 411. as matter of record, 412. where absence voluntary, 412. at what proceedings, 412. at sentence, 412. of judge, 413. of witnesses, 414. of counsel for commonwealth, 415. of counsel for defendant, 416. of defendant when fiu-ther instructions given, 432. of defendant in actions for penalties or in summary proceedings, 550. record of, in proceedings under statute or ordinance, 564. PRESENTMENT. by grand jury of matters given in charge, 235. by grand jury of matters within its own knowledge, 236. evidence to show not based on knowledge, 315. form of, 607. 764 INDEX PRESIDENT. pardon by, 522. PRESUMPTION. that complaint was sworn to, 137. from separation of jury in capital cases, 404. from separation of juiy in noncapital case, 405, that defendant was permitted to poll jury, 409. where new trial asked, 445. of regularity of record, 485. of jurisdiction in proceeding on statute or ordinance, 561. PREVIOUS CONVICTION. See FoRMJEB Conviction. PRIMA FACIE CASE. See also Habeas Cobpus; Heabino; Tbial by Jtiby befobe Justicis. before justice, 172. PRINCIPAL AND ACCESSORY. See AccESSOBiES. PRISON. See Impeisonment. t PRIVATE ACT. omission to set forth a formal defect, 313. PRIVATE PERSONS. See Aerest; Wabbant. PROCESS. waiver of irregularities, 103. by judges of oyer and terminer and quarter sessions, 112. what is meant by, 136. in whose name, 142. where offense charged before justice and jury, 177. to draw jury, 379. waiver of defects in jury process by verdict, 441. in summary proceedings, 547. in proceedings on ordinances, 548. effect of appearance, 548. PROFANITY. indictment for, 278. summary proceedings for, 555. form of capias for swearing, 560. PROMISSORY NOTE. description in larceny, 298. PROOF. of service on appeal, form of, 647. PROPERTY. See also Description of Pbopeety ; Search Wakrant. found on prisoner, 173. to be seized under act of 1836 for desertion, 529. INDEX. 766 PROSECUTING OFFICER. See District Attoenet. PROSECUTOR. name on indictment, 246. effect of intermeddling with jury, 408. liability for costs, 488. on ignored bills, 489. in felonies, 490. where imposed by petit jury, 490. where a peace officer, 491. where district attorney advised, 491. where indictment defective, 491. where joint defendants, 491. for what costs, 492. finding of jury, 492. when liability commences, 490, 492. division with defendant, 494. sentence, 495. enforcement of payment, 503. discharge under insolvent laws, 506. in proceedings for desertion under act of 1836, 529. in desertion under act of 18G7, 531. form of sentence of, to pay costs, 638. form of petition for discharge, 643. order on petition, 644. PROVISO. negativing in indictment, 261. under pure food law, 309. PUBLICATION. of libel, alleging in indictment, 301. PUBLIC MEETINGS. See DiSTUBBiNO Meetings. PUBLIC OFFICER. See also Officees. indictment for assault on, 277. PUBLIC TRIAL. right of defendant to, 411. regulations by court, 411. PUNISHMENT. See Impeisonmbnt; Sentence. PURE FOOD. requisites of indictment for violation, 309. averring sale and offering for sale, 309. sentence for second offense, 474. summary proceedings for violation, 552. 766 INDEX. Q QUALIFIED VOTER. alleging election by, 306. QUARTER SESSIONS. jurisdiction where justice may sentence, 103. jurisdiction, 110, 111. power of judges, 112, 113. jurisdiction of incorrigible minors, 113. tax collectors ujider act of 1841, 113. county conimissionera under act of 1834, 113. wilful trespass under act of 1881, 113. violators of fish laws under act of 1878, 113. under act of 1889 for driving on sidewalks, 114. vagrancy under act of 1876, 114. certification of indictment to oyer and terminer, 114, IIS. precept for summoning jury in, 380. issuance of venire, 381. number of jurors, 384. proceedings in, for desertion under act of 1836, 530. appeals to, in proceedings on statute or ordinance, 57 !• QUASHING. See Motion to Quash. QUESTION FOR JURY. See Vebdict. QUESTIONS INVOLVED. form of statement of, in paper books, 651. QUICKNESS. necessity for averment in abortion, 275. QUI TAJVI ACTION, on statutes, 545. on ordinances, 546. R RAILROAD POLICEMEN, compensation of, 516. RAILROADS. indictment of employees for negligence, 303. RAPE. jurisdiction of, 110. joinder with bastardy, 292, 310. with fornication, 292. requisites of indictment for, 309. alleging attempt, 309. INDEX. 7«7 RAPE — continued. charging statutory rape, 310. assault with intent to ravisb, 310. REAL PROPERTY. See Desckiption of Property. REAKGUMENT. in appellate court, 487. REARKEST. See AuAs Warrant. REBUTTAL. testimony in, 420. RECEIVING STOLEN GOODS. efTect of acquittal as bar to civil action, 99. jurisdiction of second offense, 110. of first offense. 111, 112. as determined by locality, 130. requisites of indictment, 310. joinder with larceny, 310. charging receipt of several articles, 310. RECEIVING VERDICT. See also Verdict. entry of, 440. RECEIVING TIMBER TREES. known to have been unlawfully cut, 302. RECEPTION OF EVIDENCE. at preliminary hearing, 170, 171. at trial before justice and jury, 180. before grand jury, 245. discretion of court as to order of, 418. after testimony closed, 419. where court has agreed to calling out of order, 419. cross-examination, 419. rebuttal, 420. sur-rebuttal, 420. duty to call witnesses, 420. exceptions to, 481. assignments of error, 482. RECOGNIZANCE. See also Bail. power of quarter sessions to take. 111. where justice has failed to return, 174. requisites of, 188. return of, 189. forfeiture of, 192. jurisdiction of courts in action on, 193, 194. form of action, 194. who may sue, 194. 769 INDEX, RECOGNIZAXCE— continued, averments in action on, 195. affidavits of defense, 195. evidence, 197. judgment, 197. execution, 197. remission of forfeiture, 198. when granted, 198. when refused, 199. who may remit, 199. time of application, 200. distribution of proceeds, 201. review of proceedings, 202, 484. in fornication and bastardy, 47.5. liability of comity for costs in proceedings on, 509. in desertion proceedings under act of 1836, 530. to comply with sentence in desertion, 533. release of surety, 533. for surety of peace, 536. for surety for good behavior, 537. form to appear at hearing of justice, 586. to appear at court, 588. for witnesses, 589. for the peace and good behavior, 589. forfeiture, G28. petition to remit, 628. to support bastard child, 638. in desertion, 638. on appeal, 647. on appeal in summary proceeding, 666. RECOMMITMENT. of bill of indictment, 248. for desertion, 534. RECORD. of judge acting as committing magistrate, 112. of certification of indictment to oyer and terminer, 113. ot summoning jury before justice, 179. of proceedings before justice and jury, 181. of forfeiture of recognizance, 192, 193. of finding by grand jury, 247. quashing for matters not of record, 315. entry of arraignment, 330. identity of, in former acquittal or conviction, 332. of swearing of jury, 392. of presence of defendant at trial, 411. of presence of defendant at sentence, 412. of verdict, 440. matters considered on motion to arrest judgment, 442. of sentence, 407. how fact that offense is second brought on record, 473, 474. INDEX. J60 RECORD— continued. what is part of, on certiorari, 485. presumption of regularity, 485. of institution of proceedings on statutes and ordinances, 561. of issuance of process, 561. of jurisdiction, 561, 562. of statute or ordinance violated, 562, of presence of defendant, 564. of evidence, 564. of finding of fact, 565. of judgment, 566. of imprisonment, 566. under act of 1881, 566. form of certificate when sent up on appeal, 648. form of record in summary proceeding, 661. record in action for penalty, 662. RECORDER. jurisdiction in cities of the second class, 123. power to issue warrants, 139. to admit to bail, 185. RECORDS. indictment for foi-gery of, 291. RECREATION. See JuBT. REDRESS FOR CRIMINAL ACTS. See Common Lawj Concuebenoe of Civil and Criminal Pboceedings; Stat- ute. REDUNDANCY. See Surplusage. REFERENCE. to qualification of jurors in other counts, 252. to time in other counts, 253. from one count to another, 267. eflfeet of quashing eoxmt referred to, 268. by use of the words "the said," 310. effect of sustaining demurrer to count referred to, 315. REFRESHMENTS. by jury, 406. REGULAR JUDGES. See Judges. REGULAR SESSIONS. See CouBTS. REGULATIONS. as to publicity of trial, 411. RELATIONSHIP. See also Juey. as ground for challenge, 401. Pa. Crim. Proc. — 49. 770 INDEX. RELEASE. See also Discrasoe of Fbisoneb. of surety, 191. in fornication and bastardy, 475. in desertion, 533. RELEASE OF PRISONER. See DiscHABQE of Fbisoneb; Habeas Cobfub; REXS^Sb RELIGIOUS BELIEF. as ground of challenge to juror, 403. RELIGIOUS WORSHIP. See DisTUEBiNo Meetings. REMARKS. See also Addbesses of Counsel. of counsel during trial, 423. exceptions to, 481. assignments of error, 482. REMEDY. See Redbess fob Cbiminai. Acts. REMISSION OF FORFEITURE, when granted, 198. power of court, 198. when refused, 199. who may remit, 199. time of application, 200. by pardon, 525. form of petition to remit, 628. REMITTITUR. from appellate court, 487. from appellate court, form of, 657> from lower court to justice, 664. * REMOVAL OF CAUSES. See also Appeal; Cebtiobabi. from state to Federal court, 107. REMOVAL OF PRISONERS, of insane prisoner, 463. to penitentiary, costs, 517. to insane asylum, costs, 517. form of petition for, 641. order on, 641. report of commissioners, 641. commitment to asylum, 642. commitment to local hospital for insane, 642. REMOVING NAMES. from jury wheel, 373. RENDITION OF FUGITIVES. See BXTBADITION. INDEX. 771 REPEAL. indictment for forgery under repealed act, 291. effect of repeal of statute, 319. REPLICATION. to plea of former acquittal or conviction, 332. to plea to jurisdiction, form of, 621. in abatement, form of, 621. to plea in bar, foi-m of, 623. 'KEPORT. of grand jury, form, 606. presentment of grand jury, form, 607. of commissioners to determine sanity, form of, 641. REPUGNANCY. in indictment, 263. REQUESTS. See Points and Answers. REQUISITION. See EXTBADITION. RESENTENCE. suspension of sentence, 467. mitigation of sentence, 467. amendment of sentence, 468. RESIDENCE. See also Nonresidence. description in indictment, 236. RESPONDEAT OUSTER. when judgment on demurrer for commonwealth, 314. when judgment on plea of former acquittal or conviction for commonwealtb, 332. when judgment on plea in abatement for commonwealth, 339. RESTITUTION. for damage from proceeds of forfeited recognizances, 201. in forcible entry and detainer, 2S9, 472. of property taken, 472. of property in proceedings on statute or ordinances, 660. RESTORiVTION OF PROPERTY. See Disposition or Propebty; Restitution. RESTRAINT. See also Defendant. of accused where grand jury sees, 413. of accused at trial, 413. of accused on bail, 413. RETURN. of coroner, 117. of justice acting as coroner, 117. of justice of the peace, 174. 77;2 INDEX. EETURN— continued. of juvenile court, 174. in Philadelphia, 174. effect of failure to, 174. contents of, 175. where judge acts as committing magistrate, 175. in desertion, 175. of offense triable before justice and jury, 178. of record after conviction before, 181. or recognizance, 189. to writ of habeas corpus, 217. Indictment based on return of magistrate, 229. based on return of coroner, 229. based on return of constable, 229. conformity of indictment with, 231. when sustained, 232. when quaslied, 233. effect of variance, 234. effect of permission of court, 235. motion to quash for defects in, 316. of settled cases by justice, 347. to venire, 382. swearing to, 384. where appeal returnable, 480. of desertion proceedings under act of 1836, 530. of desertion proceedings under act of 1867, 531, 532. non est inventus, 532. of justices to certiorari, 569. form of return to warrant, 584. return to search warrant, 585. return of justice to court, 592. return of constable, 593. return to writ of habeas corpus, 598. traverse to return, 599. return of sheriff to venire facias to summon corporation, 626. return of sheriff to mandate to execute death sentence, 633. return in summary proceeding, 661. return in penal action, 661. return to certiorari by justice, 664. of officer that fugitive was surrendered, form of, 672. REVERSAL. See also Appeal; Certioraki; Review of Puoceedinqs. effect, where proceeding before justice and jury, 180. by appellate court, 486. REVIEW OF PROCEEDINGS. See also Appeal; Ceriiorari. in habeas corpus proceedings, 223, 484. where court permits district attorney to present bill, 240. where court quashes indictment or refuses, 315, 319. where plea of former acquittal or conviction overruled, 336. INDEX. 773 REVIEW OF PROCEEDINGS— continued, under two-term rule, 362, 484. where challenge for cause overruled, 404. en-or in opening addresses, 421. in closing addresses, 422. where reference to fact that defendant has not testified, 423. improper remarks during trial, 423. where judgment entered on special verdict, 439. where judgment entered on demurrer to commonwealth's evidence, 439. where judgment arrested, 443. where new trial granted, 451. where new trial refused, 451. where improper sentence, 476. in desertion proceedings, 485. in capital cases, 4SG. decision of court, 486. appeal to United States Supreme Court, 487. of proceeding on statute or ordinance on certiorari, 569. of proceeding on statute or ordinance on appeal, 570, 571. REWARDS. for arrest, 156. for apprehending horse thieves, 156. proceedings to recover, 157. ROADS. description in nuisance, 304. summary proceedings for violations of laws relating to, 557. R0B15ERY. jurisdiction of, 110. requisites of indictment, 310. use of "with force and arms," 310. assault with intent, 311. restitution as part of sentence, 472. RULES. of executive department as to extradition, 160. of railroad, description in indictment of employees for negligence, 303. of board of pardons, 522. RULES 0¥ COURT. effect when time fixed for filing demurrer or motion to quash, 314. s SABBATH BREAKING. See Sunday. SAID. use as word of reference, iJlO. 774 INDEX, SALE OF LIQUORS. See also Liquob Laws. without license, juriBdiction, 111. SATISFACTION. See Settlement. SCHOOL DISTRICT. indictment for forgery by treasurer of, 291. costs chargeable to, on acquittal under compulsory education act, S20. SCIENTER, See Knowledge. SCILICET. meaning when used in indictment, 262. SCIRE FACIAS. on forfeited recognizance, 194. SCRUPLES. See Challenge fob Cause, SEAL. on warrant, 142. on jury wheel, 375. SEALED VERDICT, when received, 441. where juror dissents from, 441. separation of jury after, 406. SEARCH WARRANT, when issued, 138. issuance of, 152. disposition of property obtained, 153. form of complaint for, 582. search warrant, 584. SECOND INDICTMENT. See DiSTBiCT Attoknet's Bills. SECOND JEOPARDY. See FoKMEE Jeopakdt. SECOND OFFENSE. charging, in manslaughter, 296. sentence in such case, 473. how fact brought on record, 473, 474. SEDUCTION. requisites of indictment for, 311. SELECTION OF JURORS. See also Impaneling Jury. for trial before justices, 179. SELECTION OF NAMES. of jurors, 370. where judges interested in a case to be heard. 370. INDEX, 775 SELECTION OF NAMES— continued, how selected, 370. ■ who chosen, 371. exemption from service, 371. number chosen, 371. in Philadelphia, 372. where array quashed, 372. of talesmen, 389. SELF CRIMINATION. at preliminary hearing, 171. for court to determine if answer may be, 419. cross-examination of defendant, 320. reference to failure of defendant to testify, 423. in desertion, 529. SENTENCE. of delinquent children, 116. of incorrigible minors, 113, 110, 118. of vagrants, 118. after trial and conviction before justice, ISO. where plea of guilty entered, 330. where plea of nolo contendere entered, 332. presence of accused, 412. where absence voluntary, 413. by regular judge when suspended by special, 414. as disposition of motion in arrest of judgment. 442. passing of, 453. w^hen passed, 453. insanity at time of, 433. separate judgments, 454. what sentence imposed, 454. for statutory offenses, 455. to penitentiaries and jails, 45S. separate and solitary confinement, 455. imprisonment in Philadelphia, 456. in Allegheny county, 456. workliouses, 456. Huntingdon Reformatory, 456, houses of refuge, 457. for western Pennsylvania, 458. houses of correction, 460. commitment of infants, 460. house of detention, 401. Philadelphia Protectory for Boys, 461. labor by convicts, 461. where acquitted because of insanity, 4U2. release of such prisoners, 463. removal of insane prisoners, 403. discharge of insane prisoners, 465. where prisoner about to be discharged is insane, 468. fines, 466. ns INDEX. SENTENCE — continued, extent of sentence, 407. \Yhat is sufficient to sustain sentence, 467. cumulative sentence, 467. mitigation of sentence, 467. suspension of sentence, 467. amendment of sentence, 468. amendment of sentence for costs, 501. recording sentence, 468. interpretation of, 468. ■when commences to run, 463 serving term, 469. commutation of, 469. unconstitutional punishments, 470. outlawry and attaint, 470. of death, 471. restitution, 472. abatement of nuisance, 472. attempts, 473. liquor offenses, 473. vagrancy, 473. misbehavior in officer, 473. second offense, 473. escape, 473. accessories, 474. fornication and bastardly, 475. review of sentence, 476. exceptions to sentence, 481. affirmance, modification, reversal by appellate court, 480i of prosecutor to pay costs, 490, 492. of prosecutor or defendant, 495. effect of service of, 524, 527. in desertion under act of 1836, 530. under act of 1867, 532. modification of, in desertion, 583. execution of, in desertion, 534. where support of relations asked, 536. inforcement of order, 536. in proceedings on statutes, 558. execution of, 558, 559. in proceedings on ordinance, 559. revision of, 500. form of sentence of death, 632. mandate of governor to execute, 632. return of sheriff to mandate, 633. oath of sheriff, 634. oath of jurors, 634. certificate of jurors, 635. sentence for larceny, 635. sentence for nuisance, 635. INDEX. J77 SENTENCE— continued. form of sentence for fornication and bastardy, 635. commitment for nonpayment in, 636. sentence for forcible entry and detainer, 636, sentence for surety of peace, 636. sentence for desertion, 636. order to destroy gambling device, 638. sentence of prosecutor to pay costs, 638. commitment to county jail, 638. commitment to Eastern Penitentiary, 639. commitment to Huntingdon Reformatory, 640. commitment to asylum, 642. commitment to local hospital for the insane, 642. SEPARATE AND SOLITARY CONFINEMENT, senlence to, 455. SEPARATE APPEALS. necessity where separate judgments, 480. SEPARATE JUDGMENTS. where several tried together, 359, 454. SEPARATE TRIAL. See Joint and Sb:pabate Tbials. SEPARATION. of jurors in capital cases, 404. consent of defendant, 404. when allowed, 405. presumption from, 405. in noncapital cases, 405. of judges while determining degree of murder, 413. SERVES^G TERM. where portion of time in asylum, 469. as equivalent to pardon, 469. SERVING TWO SUCCESSIVE YEARS. as ground of challenge to juror, 402. SETTLEMENT. release of surety, 191. of cases, 346. of what classes, 347. assault and battery, 347. by magistrate, 347. return of, 347. false pretenses, 347. libel, 348. embezzlement, 348. conspiracy to defraud, 348. fornication and bastardy, 348. fraudulent removal of goods, 349. felonies and infamous crime.". .^50 effect of settlement, 350. 778 INDEX, SEVERANCE. See Joint and Separate Tbials. SEX. averment of, in fornication and bastardy, 292. charging in conspiracy to kidnap, 297. SHERIFF. See also Posse Comitatus. right to make complaint, 137. taking oath when he aids in selecting jury, 370. as custodian of keys of jury wheel, 368, 369. execution of venire, 3%i. summoning jurors, 381. in Philadelphia, 382. where sheriff disqualified, 382. return of, 383. an earing to, 384. form of return to venire for grand jury in oyer and terminer, 600. return to venire for traverse jury in oyer and terminer, 601. return to venire for grand jury in quarter sessions, 602. return to venire for traverse jury in quarter sessions, 603. return with jury commissioners, 604. return to mandate to execute death sentence, 633. oath at execution of death sentence, 634. petition by, to transfer insane prisoner, 641. SIGNATURE. See Indobsements. SILENCE. See Standing Mute. SODOMY. jurisdiction of, 110. indictment for attempt, 277. limitation of prosecution for, 340. SPECIAL COUNSEL. See also Counsel; District Attoenei. for commonwealth, 415, 416. SPECIiiL COURTS. See Courts. SPECIAL FINDINGS, in verdict, 439. form of, in verdict, 630. SPECIAL JUDGES. See Ji!DGES. SPECIAL PLEAS. See also Flea. right to enter, in summary proceedings, 550. INDEX. 779 SPECIAL VERDICT, ■when allowed, 439. effect of, 439. form of, 630. SPEEDY TRIAL. See Tbial. SPIRITUOUS LIQUORS. See Liquor Laws. STANDING ASIDE JURORS, effect of act of 1901, 404. STANDING MUTE. entry of plea by court, 331. waiver of formal defects where defendant takes part after, 331. STATE COURTS See CoxjBTS. STATE PRISON. See Penitentiabt. STATE'S ATTORNEY. See DiSTBiOT Attoenet. STATUTE. See also Indictment; Penai> Actions under Statutes. exclusiveuess of statutory remedy, 101. when effective, 103. construction of, in summary proceedings, 539. effect of, 540. necessary averments, 259, 260. where indictable under two statutes, 260. negativing exceptions, 261. where statute provides for distinct acts, 264. conclusion of indictment, 260, 267. in forgery where statute repealed, 291. in offenses against labor la.ws, 297. for negligence of railroad employees, 303. for obscenity, 305. effect of repeal, 319. bill of particulars where not sufBcient information, 323. sentence for such offense, 454, 455. STATUTE OF LIMITATIONS. allegations in bill to prevent running, 253. motion to quash where offense barred, 318, 338. demurrer for, 338. special plea, 338. costs where verdict for defendant. 339. limitation of prosecutions generally, 340. in fornication and bastardy, 341. in bigamy, 341. officers of banks and other corporations, 341, 342. 780 INDEX. STATUTE OV LIMITATIONS— continued, perjury, 341. conspiracy, 341. cock fighting, 341. election offenses, 341. nuisance, 341. embezzlement by tax collectors, 342. forgery, 342. embezzlement by trustees, 343. penal actions, 343. desertion, 343. exceptions to operation of, 343. ■where crime undiscovered, 344. where absent from state, 344. where concealed within state, 344. pleading the exception, 345. computing the period, 345. change of statutory period, 346. how statute taken advantage of, 346, in desertion, 528. STATUTORY RAPE. conviction of attempt on indictment for, 310. STAY OF EXECUTION. where execution on forfeited recognizance, 197. STENOGRAPHER. appointment of, 417. correction of notes, 418. costs of, 518. form of oath of, 627. STENOGRAPHER'S MINUTES. correction of, 418. STOLEN GOODS. See Restitution; Search Wahbants. STREET COMMISSIONERS. averments as to duties, 307. STRIKING OFF. appeals in proceedings on statute or ordinance, 574^ STRIKING OUT. of offers, 219. SUBORNATION OF PERJURY. competency of witness convicted of, 171, requisites of indictment, 309. SUBPCENA. for hearing before justice, 170. for hearing on writ of habeas corpus, 220. form of, for justice's hearing, 680. subpoena duces tecum, 586. for trial, 626. TNDEX, 781 SUBSTANTIAL DEFECTS. when objection to be taken for, 313. amendment of, 325. SUBSTITUTION, of jurors, 410. SUFFICIENCY. of first indictment in plea of former acquittal, 335. indictment in plea of former conviction, 336. arrest of judgment where indictment insufficient, 443. SUICIDE. indictment for attempt to commit, 277. SUinVIAEY CONVICTIONS, before justices, 118. for gambling, 294. for offenses against game laws, 294. for hawking and peddling, 294. costs on appeal, 508. what are, 538. constitutionality of such acts, 539. construction of such acts, 539. effect on other remedies, 540. jurisdiction of justices, 541. of same offeiise before different magistrates, S44L party plaintiff under, 545. institution of proceeding, 546. process in, 547. effect of appearance, 548. joinder of offenses, 550. presence of defendant, 550. right to be heard, 550. disturbing religious meetings, 551. iish and game laws, 552. pure food laws, 552. Sunday law, 553. liquor on Sundays, 554. disorderly conduct, 555. profanity, 555. license la\7S, 555. vagrancy, 556. nuisances, 556. road laws, 557. other acts, 557. judgment, 557. execution, 558. revision of judgment, 560. effect of payment, 5G0. disposition of fines collected, 560. record of institution of proceeding, 581. issuance of process, 561. 782 rNDEX. SUMMARY CONVICTIONS-r-continued. record showing jurisdiction, 561. showing statute violated, 562. showing presence of defendant, 564. .showing evidence, 564. showing finding of fact, 565. showing judgment, 566. showing imprisonment, 566. under act of 1881, 566. habeas corpus by defendant, 567. certiorari, S67. allowance of, 568. effect of appealing, 568. where no judgment passed, 569. issuing of certiorari, 569. consideration of case on, 569. appeals, 569. under act of 1876, 570. where taken, 571. time of appealing, 571. allowance of appeal, 572. nunc pro twnc, 572. application for allowance, 573. striking off appeals, 574 mandamus to justice, 574. proceedings on appeal, 574. appeals under act of 1881, 575. to supreme and superior court, 57SL form of complaint, 658. summons, 658. warrant, 659. commitment on conviction, 660. warrant to levy penalty, 661. prsecipe for certiorari, 663. writ of certiorari, 664. return to certiorari, 664. remittitur, 664. petition for special allocatur, 66Sk allowance of appeal, 666. recognizance on appeal, 666. SUMMING UP. See Addresses or CotrNSEl.. SUMMONING. grand jury, 241. jurors, 381. in Philadelphia, 382. where sheriff disqualified, 333. return of, 383. swearing to, 384. number to be, 384. UiTDEX. 783 SUMMONING— continued, mistake in names, 385. waivei of defects, 386. talesmen, 387. by whom summoned, 388. •who summoned, 389. number summoned, 389. in Philadelphia, 389. form of petition for venire facias to summon corporation, 624. order on, 625. venire facias, 625. return to, 626. SUMMONS. institution of proceedings on ordinances by, 547. record of, in proceeding on statute or ordinance, 561. form of, in action on statute or ordinance, 658. SUNDAY. exemption from arrest on, 151. alleging sale of liquors on, 301. entering verdict on, 440. summary proceedings under act of 1794, 553. record, 653. under local laws, 554. summary proceedings for sale of liquor on Sundays, 554. SUPERIOR COURT. See also Appeal; Cektiokaki; Review of PKoceedings. jurisdiction of, 107, 108. power to take bail, 185. jurisdiction in habeas corpus proceedings, 209. SUPERSEDEAS. power to grant, 186. on appeal, 479. form of petition to make appeal such, 649. order, 649. SUPERVISION OF COURT. where costs imposed by grand jury, 489. when costs imposed by jury, 500. SUPER VISUM CORPORIS. See Inquest. SUPPORT OF RELATIONS, proceedings to secure, 535. order for relief, 536. enforcement of order, 536. form of petition for, 617. SUPREME COURT. See also Appeal; Cebtiobabi; ItETiEW of PsoCEEDiiras. jurisdiction of, 107. 784 mOlElL. SUPREME COURT— continued. certiorari to remove indictments, 107. as court of nisi prius, 108. as judges of oyer and terminer, 108, 109. as peace officers, 108. power to admit to bail, 185. jurisdiction in habeas corpus proceedings, 209. duty in capital oases, 486. SURETIES. right to bailpiece, 189. efi'ect of surrender, 189. liability of, 190. release of, 191. liability in desertion, 191. of counter security, 192. release in fornication and bastardy, 479. in desertion, 334. SURETY OF PEACE AND GOOD BEHAVIOR, jurisdiction of supreme court, 108. quarter sessions, 113. justices, 120. when demandable, 120. liability of county for costs in, 509. proceedings to hold for, 536, 537. form of complaint for, 581. complaint for, before United States Commissioner, 582. recognizance for, 589. sentence for, 036. SURPLUSAGE. See also Duplicity. eiTect in indictment, 263. improper use of "feloniously," 276, 277, 290. where matters of aggravation badly charged, 310. amendment to strike out, 325. SURPRISE. continuance for, 360. new trial for, 445. SUR-REBUTTAL. testimony in, 420. SURRENDER. See also Extbaditiow. right to new bail where, 189. SUSPENSION. of the writ of habeas corpus, 225. of sentence, 467. SUSPICION. arrest on, without wajrrant by officer, 146, 149. without warrant oy individual, 149-130. INDSJL »8.> SWEARING JURY, grand jury, 243. omission to set forth as formal defect, 313. objections to indictment to be made before, 313, plea to be entered before, 330. entry of,no2ie prosequi after, 351. continuance of trial after, 300. form of oath, 392. sufficiency of record to show, 392. order of swearing, 392. waiver of defects in, 393. of juror on examination on voir dire, 397. form of oath of coroner's jury, 596. oath of foreman of grand jury, 605. oath of grand jurors, 605. oath of petit jurors, 605. oath of jury to try present insanity, 606. oath of juror in examination on voir dire, 628. TAKING FEMALES FOR INTERCOURSE, jurisdiction of, 133. TAKING NOTES. See Stenographee. TAKING THE CASE FROM THE JVKi. See Binding Instructions. TALES DE CIRCUMSTANTIBUS. See Talesmen. TALESMEN. for trial before justice, 179. ■when ordered, 387, 388. to whom venire issued, 388. who summoned, 389. number summoned, 389. in Philadelphia, 389. certification of list, 389. TAXATION. of costs, 520. form of appeal from, 645. TAX COLLECTOR. jurisdiction of, under act of 1841, 113. limitation of prosecution for embezzlement by, 348. TAXPAYER. as ground of challenge to juror, 403. rPa. Crim. Proc. — 50. 7&ei INDEX. TECHNICAL AVERMENTS. See Meaning of Wobds. TECHNICAL WORDS. See Meaning of WoBoa. T~RM. of criminal courts, 241. what is meant by, 468. THEATRICAL LICENSE. indictment for failure to take out, 311. THEN AND THERE. Use of, in indictment, 262. THINGS STOLEN. See Disposition of Pbopebty. THIRD PERSONS. See also Descbiftion of Persons. names in indictment, 2-55. name of wife in indictment of husband for adultery, 275. THREATENING LETTERS. requisites of indictment for sending, 311. TICKETS. description in indictment for lottery, 302. TIME. when indictment may be certified to oyer and terminer, llS. of trial before justice and jury, 178. of entry of plea, 330. to challenge grand juror, 387. of choosing jurors, 372. of challenging for cause, 403. of objections to misconduct of jury, 409. of addresses of counsel, 417, 421. for objecting to charge, 432. for objecting to addresses of counsel, 422. for objecting to remarks of counsel, 423. of moving in arrest of judgment, 442. of applying for new trial, 450. of sentence, 453. of sentence to penitentiary, 455. of sentence spent in asylum, 466. of amending sentence, 467. when sentence commences to run, 469. of executing death sentence, 471. for appealing, 477, 478, 479. for hearing on appeal, 480. of taking exceptions, 481. for application for discharge under insolvent laws, 606. that pardon takes effect, 625. of issuance of warrant in desertion under act of 1836, 530. INDEX. 787 TIME— continued. of obtaining certiorari in proceedings on statute or ordinance, 568. of appeal in proceeding on statute or ordinance, 571. TIME AND PLACE. See Place; Time of the Offense. TBIE OF APPLICATION, to remit forfeiture, 200. for writ of habeas corpus, 215. for nolle prosequi, 351. for trial of present insanity, 365. TIME OF PROSECUTION. See Statute op Limitations. TIME OF RETURN, 174. TIME OF SERVICE. of copy of indictment, jury and witnesses in treason, 328. TIME OF THE OFFENSE. laying time in indictment, 252. necessity of repetition, 253. as to statute of limitations in indictment, 253. in forgery, 290. variance in, 320. amendments to meet proof, 324. computing period when statute of limitations operates, 345. TIME OF TRIAL. See Hearing; Statute of Limitations; Trial; Two-Term Rule. TIME TO OBJECT. to error in indictment, 312. when rule of court, 314. TITLE. description in indictment, 256. TOWN. See Municipal Corpoeation. TOWNSHIP. costs chargeable to, 519. TRANSCRIPT. See Return. TRANSIENT. meaning when used in indictment, 261. TRAVERSE. of plea of former acquittal or conviction, 332, 622. form of, to return to writ of habeas corpus, 598. TREASON. jurisdiction of, 110. jurisdiction of, committed outside of state, 125. 788 INDEX. TREASON— continued. service of copy of indictment, jury and witnesses, 327, 415. limitation of prosecution for, 240. continuance where no list of witnesses furnished, 360. TRLa. Sec also Joint and Separate Tbials; Localitv of Cbimi:; Tbial bt Jcbt b|b- FOEE Justices. effect of pendency of civil proceeding, 100. in perjury, 100. effect where indictment in wrong court, 114. in juvenile court, 115, 116. joint and separate trials, 272, 357. verdict in such cases, 273. of plea of former acquittal or conviction, 332. of plea in abatement, 339. before regular judges, 352. before juilges specially presiding, 353. at regular sessions, 355. at special courts, 355. at continued courts, 356. of principals and accessories in felonies, 357. of principals and accessories in misdemeanors, 35S. consolidation of indictments, 359. continuance, 359. two-term rule, 360. when applied, 361. in fraudulent insolvency, 362. effect of discharge under, 363. change of venue, 363. application for, 363. proceedings when granted, 364. disposition of prisoner when granted, 364. insanity at arraignment, 365. discretion of court as to, 365. when asked for, 365. by less jurors than twelve, 410. publicity of, 411. presence of accused, 411. of accused at sentence, 412. restraint of accused, 413. presence of judge, 413. of witnesses, 414. counsel for commonwealth, 415. for defendant, 416. admissions by counsel, 417. conduct of proceedings, 417. stenographers, 417. interpreters, 418. order of testimony, 418. cross-examination, 419. INDEX. 789 TEIAL — continued, rebuttal, 420. sur-rebuttal, 420. duty to call witnesses, 420. control of court over addresses of cotuifiel, 421. opening addresses, 421. closing addresses, 422. improper remarks of counsel during, 423. sending out papers with jury, 424. where insanity suggested at sentence, 454. on appeal in proceeding on statute or ordinance, 574. TRIAL BY JURY. See Trial; Trial by Jury before Justices. TRIAL BY JURY BEFORE JUSTICES. in what counties, 175, 176. for what olTenses, 175, 176. the information, 177. where charge made of which no jurisdiction, 177. pleas, 178. demand for trial, 178. the jury, 179. procedure, 180. verdict, 180. sentence, 180. review of proceedings, 180, 181. eflect of reversal, 181. of acquittal, 182. costs, 182, 183. costs chargeable to county, 507. TRIVIAL ERROR. as ground for reversal, 484. TRUE BILL. finding by grand jury, 247. omission to so indorse as a formal defect, 313. TRUSTEES. limitation of prosecution for embezzlement by, 343. TURNPIKE ROADS. requisites of indictment for nuisance, 304. TWO-TERM RULE, what is, 360. when applied, 361. when delay due to defendant, 362. in fraudulent insolvency, 362. eiJect of discharge, 363. review of proceedings, 363, 484. 790 INDEX U UNANIMOUS. See Vebdict. UNINCORPORATED ASSOCIATION, how described in indictment, 255. UNITED STATES. locality of crime against, 134. UNITED STATES COMMISSIONER, appointment of, 104. form of complaint before, 582. UNITED STATES SUPREME COURT, jurisdiction of, 104. appeal to, 487. UNKNOWN. alleging names unknown, 301. where lottery or tickets unknown, 302. UNLAWFUL COMBINATION. See CoHSPiRACY. UNLAWFULLY. use of, for "wilfully," 274, 313. in charging the carrying of concealed weapons, 27>, in charging malicious mischief, 302. in charging mayhem, 302. UNUSUAL PUNISHMENTS, 470. USE OF WORDS. See Meaning of Wobds. V VACANCY. in oifice of jury commissioner, 368. VAGRANCY. jurisdiction under act of 1876, 114, 118. sentence for, 118, 473, 559. liability of county for costs in, 508. summary proceedings for, 556. VALUE. finding of, in indictment for larceny, 439. VARIANCE. effect of variance between indictment and return, 234. INDEX. 791 VARIANCE — continued. in describing property stolen, 298. in describing owner f>f property, 258. in indictment for libel, 300, 301. in pleading and proof of property in robbery, 311, as to place, 320. as to time, 320. as to name, 321. as to description of property, 321. as to description of writing, 321. as to statement of offense, 322. between information and indictment, 322. amendments to meet the proof, 322, 323. arrest of judgment for, 443. VENDING REGISTERED BOTTLES, summary proceedings, 537. VENIRE. to summon jurors for trial before justice, 179. for grand jury, 241. precept for, 379. special venire, 380. direction and execution of writ, 381. for talesmen, 388. in Philadelphia, 389. who summoned, 389. form of, to summon coroner's jury, 596. precept for, in oyer and terminer, 599. precept for, in quarter sessions, 600. for grand jury in oyer and terminer and return, 600. for traverse jury in oyer and terminer and return, 601. for grand jury in quarter sessions and return, 602. for traverse jury in quarter sessions and return, 603. return of sheriff and jury commissioners, 604. petition for venire facias to summon corporation indicted, 624. of venire facias to corporation indicted, 625. VENIRE FACIAS AD RESPONDENDUM, to secure appearance by corporation, 331. VENUE. See also Locality op Ckime. laying, in indictment, 254. amendment to show, 324. effect of verdict, 441. VERDICT. of coroner's jury, 117. of jury in trial before justice, 180. •where joint trial, 273. where pleas of former acquittal and conviction, 332. where such plea tried with that of not guilty, 333. 782 INDEX, VERDICT— continued. where indictments consolidated, 358. separation of jury before finding, 406. impeaching by juror, 407. general verdict, 434. consistency of, 435. conviction of attempt, 435. of constituent offense, 436. conviction of offense which is not constituent, 437. for felony where misdemeanor charged, 4S». fixing degree of guilt, 438. joint and separate verdicts, 438. special verdicts, 439. findings in verdicts, 439. on separate counts, 440. receiving and entering, 440. sealed, 441. eflect of, 441. granting new trial after acquittal, 444. new trial where against the law, 447. where against the evidence, 447. where uncertain, 448. paper returned by jury as part of record, 485. form of, 629. form of special verdict, 630. VIDELICET. meaning of word in indictment^ 262. VI ET ARMIS. See FoKCB axd Asms. VIEW. by juiy, 409. VIOLATING REGULATIONS. indictment under act 1885, 311. for Philadelphia under ordinance of 1796, 311. for failure to take out theatrical license, 311. for conducting oyster cellar without license, 311. as to weights and measures, summary proceedings, 557. VOIR DIRE. examination on, 397. swearing of juror, 397. to determine character of opinion formed, 397, 401. form of oath in examination on, 628. VOLUNTARILY. use of, in charging mayhem, 302, 303. VOLUNTARY ESCAPE. See Escape. VOLUNTARY MANSLAUGHTER. See MANSLAuauTEB. INDEX. 793 w WAIVER. of irregularities in process, 103. of objections to complaint, 137, 138. of irregularities in arrest, 152. of hearing, 172. of objections to return, 175. of felony on indictment for involuntary manslaughter, 297. of formal defects by entry of plea, 330, 331. of formal defects by one standing mute who takes part in trial, 331. of defect^ in jury process, 386. of defects in swearing jury, 393. of right to challenge for cause, 403. of error in not striking out offer, 418. by district attorney of duty to object to charge, 433. of defects in jury process by verdict, 441. of right to move for new trial by moving in arrest of judgment, 451. of right to appeal, 480. of objection to return in desertion after order, 532. of objection by appearance in summary proceedings, 548. of objection by appearance in proceedings on ordinance, 548. WANT OF MENTAL CAPACITY. See Insanity. WANTONLY. use of, in charging malicious mischief, 302. WARRANT. of coroner, 117. how issued, 136, 138. alias warrant, 137, 142, 532. when issued, 138. by whom issued, 138. in Philadelphia, 139. where prisoner charged with felony in another county, 139. where prisoner charged with misdemeajior in another county, 140. backing, 140. to w^hom directed, 141. requisites of, 142. in whose name, 142. description of offense, 142. description of person, 142. seal, 142. issuing and executing, 142. arrest with, 144, 145. duty to show, 144. arrest without, by oflScer, 146-149. arrest without, by citizen, 149, 150. search warrant, 152. 794 INDEX. WAEHANT— continued. requisites of governors warrant in extradition, 163. proceedings on, 163. review on habeas corpus of arrest on governor's, 212. in desertion under act of 1836, 530. in desertion under act of 1867, 531. in summary proceedings, 547. in actions on ordinances, 548. record of, in proceeding on statute or ordinance, 561. alternative duration of imprisonment in, 566. form of, 583. fonn directed to private citizen, 583. form of deputation by constable, 584. return by constable, 584. form of search warrant, 584. return to, 585. fonn of warrant of judge to remove criminal from one county to another, 585. form of bench warrant, 613. in proceeding on statute or ordinance, 659. to levy penalty on conviction in penal proceeding, 661. of governor for arrest of fugitive, 671. WEAPON. See also Concealed Deadly Weapons. averment as to, in indictment for homicide, 296. averring intent in indictment for carrying concealed, 279. WEIGHTS AND MEASURES. summary proceedings for violation of regulations as to, 557. WESTEEN PENNSYLVANIA HOSPITAL, removal of insane prisoner to, 463. WICKEDLY. use of, in charging mayhem, 302. WIEE. See Desektion ; Husband and Wife. WILFUL DRIVING ON SIDEWALK. jurisdiction under act of 1889, 114, 118. WILFULLY. use of "unlawfully" for, 274. of "maliciously" for, 276. of, in charging housebreaking, 279. of, in charging malicious mischief, 302. WILFUL TRESPASS. jurisdiction of, under act of 1881, 113, 118. record of justice, 560. appeals in, 575. WITHDRAWAL. of plea of guilty, 330. of Dlea oi -"nln contendere, 332. INDEX. 785 WITH FORCE AND ARMS. See Force and Aems. WITH STRONG HAND. use in forcible entry and detainer, 288. WITNESSES. See aJso Costs; Evidence. before coroner, 116. at preliminary hearing, 170. credibility at hearing, 171. who may testify, 171. imprisonment of, 173. competency in trial before justice and jury, 180. bail of, 185. in habeas corpus proceeding, 220. how heard before grand jury, 244. what witness heard before grand jury, 245, 339. to show interference with grand JAiry, 248. indictment for interference with, 305. service of list of, in treason, 327, 415. continuance of trial for absence, 360. relationship of juror to, as ground for challenge, 401. to prove incompetency of juror, 403. to show misconduct of jury, 407. securing presence at trial, 414. allowance to defendant for, 414. confronting, 414. calling juror as, 415. interpreters, 418. regulation of number of, 418, cross-examination, 419. rebuttal of, 420. sur-rebuttal of, 420. duty to call, 420. review of refusal to order, 484. examination as to reason for absence in presence of jury as ground for new trial, 445. at execution of death sentence, 470. of defendant where costs on prosecutor, 492. liability of county for defendant's, 500. costs of, 518. when officer of court, 519. where in attendance in another ease, 519. where committed as witnesses in felonies, 519. nonresident witnesses, 519. liability of prosecutor for, 519. competency of pardoned convict as, 526. form of commitment for not testifying, 588. attachment for, 588. recognizance of, 589. 79B INDEX. WITNESSES— continued. form of oath of, before coroner's jury, 596, oath of, before grand jury, 606. subpcena for trial, 626. oath at trial, 627. affirmation at trial, 627. WORDS. See also Meaning of Wokds. eflfect where improperly used in indictment, 260L description in libel, 300. description in obscenity, 305. WORKHOUSE. imprisonmpnt in, 456. WORSHIP. See Disturbing Meetings. WRIT OF CERTIORARI. See also Certiobaki. form of praecipe for, 646. prjBcipe for, from justice, 663. wi-it of certiorari, 664. WRIT OF ERROR. See also Appeal; Ceetiobari. jurisdiction of appellate courts, 107. habeas corpus not to be used as, 209-211. in criminal cases, 477. to what court, 478. form of writ, 478. who may take, 478. how taken, 479. when taken and effect, 479. as a supersedeas, 479. separate writs, 480. where returnable, 480. time of hearing, 480. waiver of right to, 480. from what judgments, 480. form of, from appellate court, 648< WRIT OF HABEAS CORPUS. See also Habeas Cobfits. issuance of, 217. return to, 217. WRITTEN INSTRUMENTS. See also Descbifiion of Wbiiingb. description of, 258.