Nicholson v. Commonwealth.
| Decision Date | 10 November 1879 |
| Citation | 91 Pa. 390 |
| Parties | Nicholson <I>versus</I> The Commonwealth. |
| Court | Pennsylvania Supreme Court |
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.—The information charges an offence under the 56th section of the penal code, to wit: seduction under promise of marriage. This is a distinct statutory offence, and under an indictment therefor the minor offence of fornication is, of course, included, and the jury might convict therefor. But the offence of fornication and bastardy is not included; this is a distinct substantive offence, made so by a separate and independent statute, to wit, the 52d section of the penal code: 1 Purd. Dig. 325. The latter offence partakes, essentially, of the character of civil process: 2 Whart. Am. Cr. L., 7th ed., sect. 2667; Duncan v. Commonwealth, 4 S. & R. 448; 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. Neither of the above requirements were complied with as to the second and third counts of the indictment herein. The defendant was in fact tried as well for fornication and bastardy as for 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 were their binding instructions 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. This case is deemed conclusive on this point.
W. C. Rheem and C. Heydrick, for defendant in error.—It is usual to add counts for fornication and bastardy in indictments for seduction. This was done in Commonwealth v. McCarty, the first reported case under the seduction law of 1843. In that case the defendant was acquitted of the charge of seduction and found guilty upon the count charging fornication and bastardy. Lewis's United States Criminal Law, pages 51 to 53. See also Wharton's Criminal Law, sect. 423; Duncan v. Commonwealth, 4 S. & R. 451; 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, and Stevick v. Commonwealth, 28 Id. 463, as to joinder of different offences.
The portion of the charge assigned for error indicates to the jury that they may pursue one of three methods in their endeavor to ascertain what the law is. They are...
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Slansky v. State
...the jury had the right to decide the law, their only safe course was to accept the court's interpretation of the law. Nicholson v. Commonwealth, 91 Pa. 390. In 1885 Court in Hilands v. Commonwealth, 111 Pa. 1, 2 A. 70, 72, 56 Am.Rep. 235, stated that the jurors in a capital case 'are not on......
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State v. Price
...... so that the evidence which proves the one would also prove. the other. Holt v. State, 38 Ga. 187. In. Commonwealth v. Arner, 149 Pa. 35 (24 A. 83), it is. expressly held that one who has been convicted of fornication. and bastardy cannot thereafter be tried for ... 571, 6 Lea 571 (40 Am. Rep. 53); State v. Klugherz,. 91 Minn. 406 (98 N.W. 99); Gully v. State, 116 Ga. 527 (42 S.E. 790): Nicholson v. Commonwealth, 91 Pa. 390; Commonwealth v. Arner, 149 Pa. 35 (24 A. 83). That parol evidence is admissible to show what transaction. was sought ......
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Slansky v. State., 61.
...right to decide the law, their only safe course 63 A.2d 603was to accept the court's interpretation of the law. Nicholson v. Commonwealth, 91 Pa. 390. In 1885 the Court in Hilands v. Commonwealth, 111 Pa. 1, 2 A. 70, 72, 56 Am.Rep. 235, stated that the jurors in a capital case ‘are not only......
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Commonwealth v. Johnston
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