Nicholson v. Commonwealth

• Decision Date: 10 November 1879
• Citation: 96 Pa. 503
• Parties: Nicholson <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

96 Pa. 503

Nicholson versus The Commonwealth.

Supreme Court of Pennsylvania.

October 21, 1879.

November 10, 1879.

October 21st 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Quarter Sessions of Venango county: Of October and November Term 1879, No. 306.

Mackey & McGough, Osmer & Dale and Dodd & Lee, for plaintiff in error.—Fornication and bastardy is a distinct offence from seduction, made so by a different statute, the 52d section of the Penal Code. Seduction partakes essentially of the character of civil process: 2 Whart. Am. C. L., 7th ed. sect. 2667; Duncan v. Commonwealth, 4 S. & R. 448. The two offences cannot be joined in one indictment. See also, Updegraff v. Commonwealth, 6 Id. 9.

It has been the uniform practice in Pennsylvania for years to require prosecutions to be instituted either upon information made before a committing magistrate, by return of constable, upon motion of the district attorney, or upon personal knowledge of the grand jury: McCullough v. Commonwealth, 17 P. F. Smith 30; Rowand v. Commonwealth, 1 Norris 405; Commonwealth v. Maloy; 7 P. F. Smith 298. None of the above requirements were complied with as to the fornication and bastardy.

The letter was wholly incompetent for any purpose, and this is especially true of one relating to a breach of a marriage engagement written months after the alleged seduction. The court could scarcely have been more emphatic in their instructions to the jury — not only to disregard any comments upon the law made by defendant's counsel, as well as any opinion of their own — than their often repeated and binding instructions which we assigned for error. The jury are the judges of the law as well as of the facts. The power of the jury to judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights: SHARSWOOD, C. J., in Kane v. Commonwealth, 8 Norris 522.

W. C. Rheem and C. Heydrick, for defendant in error.—It is usual to join counts for fornication and bastardy in indictments for seduction: Commonwealth v. McCarty, 2 Clark 351: Lewis on Criminal Law, pp. 51 to 53; Duncan v. Commonwealth, supra; Wharton's Criminal Law, sect. 423; Dinkey v. Commonwealth, 5 Harris 126; Commonwealth v. Birdsall, 19 P. F. Smith 484; Harman v. Commonwealth, 12 S. & R. 69; Henwood v. Commonwealth, 2 P. F. Smith 424; Stevick v. Commonwealth, 28 Id. 463. The court gave no binding instructions to the jury. They only recommended the safest course the jury could adopt in ascertaining what the law was. Had the court been requested to charge that the jury were the judges of the law, they would undoubtedly have done so and given the jury the same advice which the court did and which is so emphatically affirmed in Kane v. Commonwealth, supra.

The judgment of ...