Hunter v. Commonwealth

• Citation: 79 Pa. 503
• Parties: Hunter <I>versus</I> Commonwealth.
• Decision Date: 15 November 1875
• Court: United States State Supreme Court of Pennsylvania

79 Pa. 503

Hunter versus Commonwealth.

Supreme Court of Pennsylvania.

November __, 1875.

November 15, 1875.

November __ 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1875, No. 73 J. S. Ferguson, M. Swartzwelder, and R. M. Gibson, for plaintiff in error, cited Henwood v. Commonwealth, 2 P. F. Smith 424; Stevick v. Commonwealth, 28 Id. 460; Commonwealth v. Gable, 7 S. & R. 433; Dinkey v. Commonwealth, 5 Harris 129. The offence charged being a felony under the criminal code of March 31, 1860, sect. 82, Pamph. L. 403, 1 Br. Purd. 340, pl. 128, the defendant would be prevented from testifying under Act of April 3d 1872, sect. 1, Pamph. L. 34, 1 Br. Purd. 625, pl. 21.

T. M. Marshall, for Commonwealth, defendant in error.

Mr. Justice PAXSON delivered the opinion of the court, November 15th 1875.

The plaintiff in error was indicted for a felonious assault. The jury convicted him of assault. A motion in arrest of judgment was made, which was overruled by the court below, and judgment entered on the verdict. This is assigned here for error.

The record presents the single question, whether upon an indictment charging a felony, the jury may acquit of the felony, and convict of the constituent misdemeanor. We are in no doubt as to the rule at common law. It was long held in England, that upon an indictment for a felony there could be no conviction for the minor offence of misdemeanor: Rex v. Cross, 1 Ld. Raym. 711; S. C. 3 Salk. 193; 2 Hawk., chap. 47, § 6; 1 Chit. C. L. 251 and 639. The reason of the rule was, that persons indicted for misdemeanors were entitled to certain advantages at the trial, such as the right to make a full defence by counsel; to have a copy of the indictment, and a special jury, privileges not accorded to those indicted for a felony. It is apprehended these reasons no longer exist in England — at least not to the extent they did formerly, for by the stat. 1 Vict., ch. 85, § 11 (Lord Denman's Act), the rule itself has been abolished, and now upon a bill charging a felony, a conviction may there be had for a constituent misdemeanor. It is clear that the reason of the rule has no application in this state. On the contrary, the advantages, if any, upon the trial, are all in favor of those charged with a felony. By the merciful provisions of our criminal law, the higher and more atrocious the crime, the more numerous are the safeguards thrown around the accused, and the more jealously does the law guard every legal right to which he is entitled.

The rule in other states of this country is by no means uniform. It is said by Mr. Wharton, in his work on Criminal Law, § 400, that the old common-law rule is still followed in Massachusetts, in Indiana and Maryland; while in New York, Vermont, New Jersey, Ohio, North Carolina, South Carolina and Arkansas, it has been held that the reason of the English rule having ceased, the rule itself ceases, in obedience to the maxim cessante ratione legis cessat ipsa lex. A number of authorities are introduced by Mr. Wharton, which it is unnecessary to refer to here. The learned author places Pennsylvania as among the states in which the old common-law rule still prevails, and cites The Commonwealth v. Gable, 7 S. & R. 433, in support of his text. The case referred to is authority only for what it decides. No such question was before the court. The contention there was whether upon an indictment for murder, a conviction for manslaughter, without stating it was for voluntary manslaughter, could be sustained. The court held that the verdict was sufficiently certain; that it was to be presumed the jury meant voluntary manslaughter. It is true, C. J. Tilghman, who delivered the opinion of the court, recognised the common-law rule referred to, but it was assumed, not argued. Indeed, it could not well have been otherwise, as the point was not made. Black, C. J., also appears to have recognised the rule in Dinkey v. The Commonwealth, 5 Harris 127, when he said that, "on an indictment for a felony, there cannot be a conviction for a minor offence included within it, if such minor offence be a misdemeanor." But this point was not before the court in Dinkey v. Commonwealth. All that case ruled was, that an indictment for seduction under the statute includes the charge of fornication, and that a party indicted for seduction and acquitted, may plead such an acquittal in bar of the subsequent indictment for fornication and bastardy on the same act; and the record will be a complete defence. It will thus be seen that Dinkey v. The Commonwealth, as well as Commonwealth v. Gable, are not authority to the extent claimed for them, and can hardly be said to support the rule. On the other hand, we are not without authority to support a conviction of a misdemeanor upon an indictment charging a felony. In Harman v. The Commonwealth, 12 S. & R. 69, in which it was held that a count charging assault with intent to ravish might be joined with a count for rape, C. J. Tilghman shows that as far back as 1772, upon an indictment charging rape, the defendant had been convicted of an assault with intent to ravish. In Shouse v. The Commonwealth, the principle is laid down by Burnside, J.: "When a count in an indictment contains a divisible averment, it is the province of the jury to discriminate and find the divisible offence; and this distinction runs through the whole criminal law. It is enough to prove so much of the indictment as shows that the defendants, or any one of them has committed a substantial crime therein specified." Justice Burnside then proceeds to cite Rex v. Dawson, 3 Starkie 62, where an indictment charged the defendant with an assault with intent to abuse and carnally know a female child, and it was held that he might be convicted of an assault to abuse her simply: 5 Ohio R. 242, where it was held that on an indictment for an assault with an intent to murder, there may be a conviction of an assault simply; and adds: "this is the law and practice of Pennsylvania." The general rule is well settled that upon an indictment charging a particular crime, the defendant may be convicted of a lesser offence included within it. Thus upon an indictment for murder the prisoner may be convicted of manslaughter; a person charged with burglary may be convicted of larceny, if the proof fail of breaking and entering; a person charged with seduction may be convicted of fornication: Dinkey v. Commonwealth, 5 Harris 127; when persons are indicted for riotous assault and battery, they may be convicted of assault and battery only: Shouse v. Commonwealth, 5 Barr 83; when the charge is assault and battery, a conviction may be had for assault. Instances of this kind might be multiplied indefinitely if necessary.

The common-law rule that a felony and misdemeanor cannot be joined in the same indictment had its foundation in substantially the same reasons as the rule under discussion. Yet we have seen that it was departed from in Harman v. The Commonwealth. Since then it has been constantly undermined. In Henwood v. The Commonwealth,...