Graham v. Commonwealth

• Decision Date: 15 January 1866
• Court: Pennsylvania Supreme Court
• Parties: Graham <I>versus</I> The Commonwealth.

51 Pa. 255

Graham versus The Commonwealth.

Supreme Court of Pennsylvania.

January 15, 1866.

ERROR to the Court of Quarter Sessions of Indiana county.

Thomas White, A. W. Taylor and Stewart & Clark, for plaintiff in error.—The defendant was at home five months after the commission of the offence. He did not leave the state to inhabit or reside in another; he left temporarily; his "usual residence" was Indiana county with his family; he left animo revertendi. He was under the control of others. Graham had no residence but in Indiana county. The Act of April 2d 1822, exempting soldiers from service of civil process, provides that the service shall not be made until thirty days after his return to his "usual place of residence," implying the home he left is his usual place of residence. The act does not require the defendant should be arrested within two years, but that the indictment should "be brought and exhibited within two years;" and he may be arrested and tried on his return. In analogy to the rule in regard to the Statute of Limitations in civil cases, when once it begins to run it continues; he was at home for five months, and subject to process: Martin Shaffer's Estate, 9 S. & R. 266.

In criminal cases the statute can be taken advantage of without pleading: Commonwealth v. Ruffner, 4 Casey 259.

William Banks, for defendant in error.—"Usual resident," within the meaning of this act, is one who could be arrested. If a party committing an offence, and next day going into military service, remained away two years, and could then escape punishment, the proviso that he might be tried in two years after his return would be futile.

The Act of 1822, section 70, provides exemption from service in civil process on soldiers going to drill, and also that no execution or other process shall issue against a soldier in actual service until thirty days after return to his usual residence; "other process" means criminal as well as civil.

The opinion of the court was delivered, January 15th 1866, by THOMPSON, J.

The crime of adultery, of which the defendant below was convicted, was laid as having been committed on April 26th 1862. That is found by the special verdict, and a repetition of it in June, but before the 22d. The prosecution was commenced on the 22d of June 1864, and being instituted more than two years after the commission of the offence the plaintiff in error claims that it was barred by the limitation in the 77th section of the Act of 31st March 1860, Purd. 265, and that he was not liable to conviction and sentence. After fixing a limitation of two years, within which certain misdemeanors mentioned in the act may be prosecuted, of which adultery is one, there is a proviso in the section, that where any offender "shall not have been an inhabitant of the state, or usual resident therein during the respective times for which he shall be subject and liable to prosecution," he shall be subject within a similar period of time during which he shall be an inhabitant of, or usually a resident, within this state.

The only question we have to deal with is, whether the facts found do or do not establish that the defendant Graham was an "inhabitant and usually a resident of the state," during two years after the commission of the offence. His residence at the time was in Indiana county, where he remained for several months after committing the offence charged, until he entered the service of the United States as a soldier. He served in Maryland and Virginia, and returned home to his family several times, and remained for considerable periods, once as a paroled...