31 March 1860 § 87. P. L. 404. LXXXV. TELEGRAMS. 394. Revealing telegraphic dispatches. LXXXVI. THREATENING LETTERS. 396. Charging crime punished with imprisonment at labor. 397. Crime need not be so punishable. LXXXVII. TRAMPS. 398. Definition of tramp. Punishment. Discharge. 401. Arrest of offenders. 402. Act not to apply to certain persons. LXXXVIII. TREASON. 403. Treason defined and punished. 406. Furnishing vessels to the enemy. 407. Persons indicted to have copy of indictment. 408. Petit treason abolished. LXXXIX. WITNESSES. 409. Absconding witnesses. 410. Refusal to appear and testify before legislative committee. 411. Dissuading witness from testifying. 412. Witnesses not to be committed pending trial. When bail may be exacted. XC. CONSTRUCTION OF PENAL CODE. 413. Penal acts to be strictly pursued. 414. Meaning of general term. I. Abortion. 1. If any person shall unlawfully administer to any woman, pregnant or quick with child, or supposed and believed to be pregnant or quick with child, any drug, poison or other substance whatsoever, or shall unlawfully use any instrument or attempt to procure other means whatsoever, with the intent to procure the miscarriage of such woman, Death following abortion. Ibid. § 88. Procuring or attempting to procure abortion. Ibid. § 89. Concealing the child. and such woman, or any child with which she may be quick, shall die in consequence of either of said unlawful acts, the person so offending shall be guilty of felony, and shall be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment by separate or solitary confinement at labor, not exceeding seven years. (w) 2. If any person, with intent to procure the miscarriage of any woman, shall unlawfully administer to her any poison, drug or substance whatsoever, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, such person shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years.(x) 3. If any woman shall endeavor, privately, either by herself or the procurement of others, to conceal the death (y) of any issue of her body, male or female, which, death of a bastard if it were born alive, would by law be a bastard, so that it may not come to light, whether it was born dead or alive, or whether it was murdered or not, every such mother, being convicted thereof, shall suffer an imprisonment, by separate or solitary confinement at labor, not exceeding three years. (3) And if the grand jury shall, in the same indictment, charge any woman with the murder of her bastard child, as well as with the offence aforesaid, the jury by whom such woman shall be tried, may either acquit or convict her of both offences, or find her guilty of one and acquit her of the other, as the case may be.(a) (w) This section is new, and is intended to meet the case of the death of a pregnant woman following any criminal attempt to procure her miscarriage, or the death of the child with which she may be quick. It also meets the case of the death of a woman from drugs administered, or instruments applied, with the intent to produce abortion, where such woman is not actually pregnant. Report on the Penal Code 25. The offence described in this section does not amount to murder either in the first or second degree. Commonwealth v. Railing, 17 W. N. C. 492. (x) This section is also new; it punishes the administration of drugs or the use of instruments with intent to procure abortion, although no abortion is actually produced, and although the female survives the operation. This section, it is hoped, may tend to put a stop to a crime of too frequent occurrence. Report on the Penal Code 25. See Commonwealth v. W., 3 Pitts. 462. (y) Concealment of the birth of a bastard child is no offence under this act. Commonwealth v. Brown, Vaux's Dec. 24. (z) An indictment is bad, which does not distinctly aver the death of the child. Douglass v. Commonwealth, 8 W. 535. But it is not necessary to set forth in what manner, or by what arts, the mother endeavored to conceal the death of the infant. Boyles v. Commonwealth, 2 S. & R. 40. (a) This section is intended to supply the 8th section of the act of 31 May 1718, 1 Sm. 113; the 6th sec II. Academic degrees. P. L. 271. 4. It shall not be lawful for any university, college or other institution incor- 19 May 1871 § 1. porated under the laws of this state, with power to grant academic degrees, honorary or otherwise, to confer the same upon any person or persons upon the Sales of academic payment, or promise of payment, by any person, in consideration thereof; and degrees. any person knowingly signing a diploma, or other instrument of writing purporting to confer an academic degree, when such consideration has been paid, or promised to be paid, shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding six months, or both, or either, at the discretion of the court.(b) III. Adulteration. &c. P. L. 401. 5. If any person shall sell or expose for sale, the flesh of any diseased animal, 31 March 1860 § 69. or any other unwholesome flesh, knowing the same to be diseased or unwholesome, or sell or expose for sale unwholesome bread, drink or liquor, knowing the same Selling unwholeto be unwholesome; or shall adulterate for the purpose of sale, or sell any flour, some provisions, meal or other article of food, any wine, beer, spirits of any kind, or other liquor intended for drinking, knowing the same to be adulterated; or shall adulterate for sale, or shall sell, knowing them to be so adulterated, any drugs or medicines; such person so offending shall be guilty of a misdemeanor, and upon conviction be sentenced to pay a fine, not exceeding one hundred dollars, or undergo an imprisonment, not exceeding six months, or both, or either, at the discretion of the court.(c) $1. P. L. 157. 6. If any person shall manufacture for sale, or sell or offer to sell any candy 22 May 1887 § or confectionery adulterated by the mixture of terra alba, barytes, talc, or other mineral substance, or by poisonous colors, or flavors, or other ingredients, delete Adulteration of rious or detrimental to health, knowing the same to be so adulterated, such person confectionery. so offending shall be guilty of a misdemeanor, and, upon conviction, be sentenced Penalty. to pay a fine not exceeding one hundred dollars nor less than fifty dollars, and the candy or confectionery so adulterated shall be forfeited and destroyed by the order To be destroyed. of the court. Ibid. § 2. 7. If any candy or confectionery adulterated in violation of the first section of this act, shall be found in the possession of any manufacturer, merchant or Possession prima dealer, it shall be deemed prima facie evidence that the same is offered for sale facie evidence. and that the person having it in possession knew that the same was so adul terated. Ibid. § 3. 8. No action shall be maintained or recovery had in any case for the value of any candy or confectionery which may have been adulterated, as specified in No action for the first section of this act, and it shall be competent for the defendant in every value. such case to prove that the candy or confectionery was so adulterated, and proof thereof being so made, shall amount to a good and legal defence to the whole of Good defence. the plaintiff's claim therefor. 9. It shall be unlawful for any person or persons to make use of any active 14 April 1863 § 1. poison, or other deleterious drugs, in any quantity or quantities, in the manufac- P. L. 359. ture or preparation, by process of rectifying or otherwise, of any intoxicating malt Using deleterious or alcoholic liquors, or for any person or persons to knowingly sell such poisoned ufacture of liquors. tion of the act of 5 April 1790, 2 Sm. 533; the 17th and 18th sections of the act of 22 April 1794, 3 Sm. 190. The 8th section of the act of 1718 subjected the concealment, by the mother, of the death of a bastard child, to the penalty of death, except such mother could make proof, by one witness at least, that the child, whose death was by her so concealed, was born dead this provision was copied from the English statute of 21 Jac. I., c. 27; the rigorous nature of this statute suggested the passage of the 6th section of the act of 5 April 1790, which declares that "the constrained presumption that the child whose death is concealed, was therefore murdered by the mother, shall not be sufficient evidence to convict the party indicted, without probable presumptive proof is given, that the child was born alive; and that of the 18th section of the act of 1794, which declares "that the concealment of the death of any such child shall not be conclusive evidence to convict the party indicted of the murder of her child, unless the circumstances attesting it be such as shall satisfy the mind of the jury, that she did wilfully and maliciously destroy and take away the life of such child." In this state of the law, it seemed better to the commissioners to repeal all the existing statutes on the subject, and to substitute a plain provision, making the concealment of the death of an illegitimate child a substantive offence. The destruction of the life of such child by drugs in the man its mother is thus left subject to the same punishment and susceptible of the same proof as ordinary cases of murder. They have, however, preserved that feature of the act of 1794 which authorizes counts for the murder of a bastard child, and for concealment of its death, to be united in the same indictment. Report on the Penal Code 25. (b) In an indictment for selling a forged diploma, it is not necessary to show an intent to defraud any particular persons; the general intent to defraud is enough to constitute the offence. McClure v. Commonwealth. 86 P. S. 353; s. c. 12 Phila. 579. (c) This section is the amendment and extension of the act of 18 March 1775, 1 Sm. 425; of the 5th section of the act of 8 May 1854, P. L. 664; aud of the 11th section of the act of 20 April 1858, P. L. 367. These sections provide against the sale of unwholesome bread and liquors. The proposed section embraces the sale, knowingly, of unwholesome flesh. Report on the Penal Code 22. See the act 7 May 1855, $ 1, P. L. 463, as to selling unwholesome meat in market houses, and see titles "Apothecaries"; "Lard"; "Milk"; "Oleomargarine.' And see the act 18 March 1775, § 7, 1 Sm. 425 against the adulteration of flour. It is a misdemeanor to sell to a butcher a live steer visibly suffering from lump-jaw. Commonwealth v. Horn, 13 C. C. 164. 14 April 1863 § 1. or drugged liquors in any quantity or quantities; and any person or persons so offending shall be deemed guilty of a misdemeanor.(d) P. L. 359. Ibid. § 2. Manufacturers to on barrels, &c. 10. It shall be the duty of any person or persons engaged in the manufacture and sale of intoxicating malt or alcoholic liquors, or in rectifying or preparing the brand their names same in any way, to brand on each barrel, cask or other vessel containing the same, the name or names of the person or persons manufacturing, rectifying or preparing the same, and also these words, "containing no deleterious drugs or added poison"; and shall also certify the same fact or facts to the purchaser, over his, her or their own proper signature. Ibid. § 3. Possession of 11. If any barrel, cask or other vessel, containing any such drugged or poisoned liquor, shall be found in the possession of any person or persons designated in secdrugged liquor to tions one and two, it shall be deemed primâ facie evidence of a violation of the provisions of this act. be evidence of violation. 12. Any suspected article or specimen of intoxicating malt or alcoholic liquor, shall be subjected to analysis by some competent person to perform the same, under the direction of the court before which the case is tried; and such analysis, duly certified under oath, shall be deemed legal evidence in any court in this state: Provided, That upon any preliminary examination, before any justice of the peace, mayor or other magistrate or competent authority, for the purpose of binding over, such officer may order the inspection aforesaid to be made, and make such order as may be necessary to preserve the evidence of the offence, until the trial of the offender. 13. Any person offending against any of the provisions of this act shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding twelve months, or both, or either, in the discretion of the court. (d) use, 14. Any and all persons engaged in the business of brewing or manufacture of ale, beer or other malt liquors, or in the fermentation, distillation or manufacture of any vinous or spirituous liquors, be and they are hereby prohibited making in or about such business, or in any such process of brewing, fermentation, distillation or manufacture, of any poisonous or deleterious drugs or chemicals, or any impure or injurious materials, or such as are prejudicial to the public health, or to the health of any person drinking or making use of any such malt, vinous or spirituous liquors. 15. The use of any such poisonous or deleterious drugs or chemicals, or impure or injurious materials, or of those prejudicial to health, as are prohibited by the first section of this act, is hereby declared to be a misdemeanor, and any person convicted of so using the same, shall be punished by a fine of one thousand dollars, and by an imprisonment of not more than one year. IV. Adultery. 16. If any married man shall have carnal connection with any woman not his lawful wife, or any married woman have carnal connection with any man not her lawful husband, (e) he or she so offending shall be deemed guilty of adultery.(g) and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment, not exceeding one year, or both, or either, at the discretion of the court.(h) V. Arson. 17. If any person shall maliciously and voluntarily burn or cause to be burned, or set fire to, or cause or attempt to set fire to, with intent to burn, any factory, mill or dwelling-house of another, or any kitchen, shop, barn,(i) stable or other out-house that is parcel of such dwelling, or belonging or adjoining thereto, or any other building, by means whereof a dwelling-house shall be burnt, then and in every such case, the person so offending shall be adjudged guilty of felonious (d) See infra 13. (e) An indictment for adultery, which does not state to whom the defendant is married, is defective. Commonwealth v. Corson, 2 Pars. 475. See Helfrich v. Commonwealth, 33 P. S. 68. The oath of a married woman is not sufficient to sustain a warrant for the arrest of her husband for adultery. Commonwealth v. The Jailer, 1 Gr. 218. (g) A wife's insanity is not a bar to a divorce for adultery, committed by her when she was insane, although it would not be punishable by indictment. Matchin v. Matchin, 6 P. S. 332. (h) This section is an amendment and revision of the 1st section of the act of 1705, 1 Sm. 27; and of the 7th section of the act of 23 September 1791, 3 Sm. 41. The changes in phraseology have been introduced by reason of some recent differences of opinion in the criminal courts, as to whether an unmarried person can be convicted of adultery. (See Commonwealth v. Kilwell, 1 Pitts. 255. 4 Am. L. Reg. 209. Helfrich v. Commonwealth, 33 P. S. 68.) As early as 1791, the supreme court, in Respublica v. Roberts, 2 Dall. 124, ruled that no conviction of adultery could take place where the defendant was not a married person, declaring such to have been the uniform practice for eighty-five years. To produce uniformity in the administration of the criminal law in this respect, has been the object of this change of phraseology. The punishment which, by the act of 1791, is a fine not exceeding fifty pounds, and imprisonment not less than three nor more than twelve months, is changed to a fine, not exceeding five hundred dollars, and imprisonment, not exceeding one year. Report on the Penal Code 18. (i) See Chapman v. Commonwealth. 5 Wh. 427. Sampson v. Commonwealth, 5 W. & S. 387. P. L. 415. arson; (k) and on conviction thereof, shall be sentenced to pay a fine, not exceed- 31 March 1860 §187. ing two thousand dollars, and to undergo an imprisonment by separate or solitary confinement, at labor, not exceeding twelve years; and in case of the malicious burning or setting fire to any dwelling-house, or building that is parcel of such dwelling or belonging thereto, there is any person in the same, the offender being convicted thereof, shall be sentenced to pay a fine, not exceeding four thousand dollars, and to undergo an imprisonment at separate or solitary confinement, not exceeding twenty years.(1) Ibid. § 138. burn. 18. If any person shall wilfully and maliciously burn, or cause to be burned, set fire to, or attempt to set fire to, with intent to burn, or aid, counsel, procure or Burning outconsent to the burning or setting fire to, of any barn, stable or other building of houses, and setting another, not parcel of the dwelling-house, or any shop, storehouse or warehouse, fire with intent to malt-house, mill or other building of another, or any barrick, (m) rick or stack of grain, hay, fodder or bark, piles of wood, boards or other lumber, or any ship, boat or other vessel of another, lying within any county in this state, or any wooden bridge within the same, or state capitol or adjoining offices, or any church, meeting-house, court-house, jail or other public building belonging to this commonwealth, or to any city or county thereof, or to any body corporate or religious society whatever, the person offending shall, on conviction, be adjudged guilty of a misdemeanor, (n) and be sentenced to pay a fine, not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, at labor, not exceeding ten years. Ibid. § 139. Setting fire with 19. Every person, being the owner of any ship, boat or other vessel, or the owner, tenant or occupant of any house, out-house, office, store, shop, warehouse, mill, distillery, brewery or manufactory, barn or stable, or any other building, intent to defraud who shall wilfully burn or set fire thereto, with intention to burn the same, with insurers. an intention thereby to defraud or prejudice any person, or body politic, or corporate, that hath underwritten or shall underwrite any policy of insurance thereon, or on any moneys, goods, wares or merchandise therein, or that shall be otherwise interested therein, shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years. 20. If any person shall wilfully set on fire, or cause to be set on fire, any woods, lands or marshes within this commonwealth, so as thereby to occasion loss, damage Firing woods. or injury to any other person, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, and to undergo an imprisonment not exceeding twelve months.(0) Ibid. § 140. Ibid. § 141. Attempting to 21. If any person shall unlawfully and maliciously place or throw in, into, upon, against or near any building or vessel, any gunpowder or other explosive mixture, with intent to do bodily harm to any person, or to destroy or damage any building blow up buildings, or vessel, or any machinery, working tools, fixtures, goods or chattels, every such &c. offender shall, whether or not injury is effected to any person, or any damage to any building, vessel or machinery, working tools, goods or chattels, be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years.(p) P. L. 117. 22. No principle or policy of law shall, because the defendant shall have been 10 June 1881 § 1. in possession as tenant or otherwise, at the time of the commission of the offence, exempt any person from conviction and punishment, who shall wilfully and mali- Possession as tenciously burn, or cause to be burned, or cause or attempt to set fire to, any building, ant, no defence. but such person shall be liable to conviction and punishment, in the same manner and to the same extent as if not in possession. (k) See Hill v. Commonwealth, 98 P. S. 192. The offences punished by this section are within the exclusive jurisdiction of the over and terminer. Commonwealth v. McConnell, 2 Pitts. 210. (2) The 137th, 138th, 139th and 140th sections provide against various kinds of malicious burnings and attempts to burn. The sections are amendments and extensions of the 3d section of act of the 21 March 1806, 4 Sm. 334; of the 4th section of the act 23 April 1829, 10 Sm. 435; the 10th section of the act of 16 April 1849, P. L. 665: of the 34th section of the act of 25 April 1850, P. L. 575; and the 74th section of the act of 13 June 1836, P. L. 565. The 137th section refers to the burning or attempting to burn a dwellinghouse, or any out-house, parcel thereof, or any other building, by means whereof a dwelling-house shall be burnt. Regarding the burning of a dwelling-house as the most heinous of this class of offences, the commissioners propose its exemplary punishment. The fact of any person being in a dwelling-house set fire to or burnt, renders the offender liable to a much heavier punishment; this distinction the commissioners think necessary, in order to the protection of human life, which is frequently endangered by the malicious burn ing of a dwelling-house. Section 138 provides against the malicious burning, or attempting to burn the buildings therein enumerated, not being dwellinghouses, or any barrick, stack of hay, grain or bark, &c. The punishments provided against these offences, though sufficiently severe, are less than the preceding sections. The 139th section is new, and of manifest necessity. The 140th section is a consolidation and amendment of those of the 1st and 4th sections of the act of the 18 April 1794, 3 Sm. 139; and the act of the 27 March 1824, 8 Sm. 284. Report on the Penal Code 32. (m) In an indictment for burning a barrick, it is unnecessary it should appear that it contained hay, grain or bark. Chapman v. Commonwealth, 5 Wh. 427. And see Staegar v. Commonwealth, 103 P. S. 469, as to an indictment for burning a barn. (n) Indictments under this section are triable in the quarter sessions. Commonwealth v. McConnell, 2 Pitts. 210. (0) See infra 28. (p) This section is new; it provides against a most dangerous species of fraudulent burning, and sufficiently explains itself. Report on the Penal Code 33. 17 April 1869 § 1. P. L. 74. Justices, &c., may investigate and of incendiary fires. 23. Whenever it shall be made to appear, by the affidavit of a credible witness, that any building or other property has been set on fire maliciously, or burned from an unknown cause, it shall be lawful for the mayor or any alderman of any city, or justice of the peace of any borough or township wherein such fire may ascertain the origin have occurred, upon request of any citizen of such city, borough or township, as the case may be, or of any president, secretary or agent of any insurance company having a policy written and in force upon the premises burned or attempted to be burned, to proceed, with all reasonable dispatch, to investigate and ascertain as far as practicable, the facts relating to the cause and origin of such fire; and for this purpose the said mayor, alderman or justice of the peace shall have all the powers of a coroner for summoning a jury and witnesses and conducting the investigation. Jury to be summoned. Ibid. § 2. Duties of jurors. Ibid. §3. to be bound over for trial. 21. The number of jurors shall not be less than three, and shall be selected from the vicinity where the fire occurred, who, after being sworn or affirmed to perform their duties faithfully, and inspecting the place where the fire occurred, and hearing such testimony as may be produced before them in regard to the premises, shall make out and deliver to the officers having cognizance of the case, a report, under their hands and seals, in which they shall find and certify, as far as ascertained, how and in what manner such fire occurred, and who was guilty of firing the same, either as principal or accessory, or if not wilfully set on fire, then to certify how the same originated, as far as can be ascertained. 25. If the jury shall find that any person or persons wilfully set fire to the Persons implicated premises in question, or that reasonable cause exist for believing them to have been accessory thereto, then the mayor or other officer having cognizance of the case as aforesaid, shall bind over the witnesses to appear at the next court of quarter sessions of the proper county, to give testimony in the case; and if the person charged or implicated by the jury as aforesaid be not in custody, the mayor or other officer holding the inquest shall issue his warrant for the arrest of the accused, and being brought before such magistrate shall be committed or admitted to bail, to appear and answer, at the next court of quarter sessions of the proper county, such bill or bills of indictment as may then and there be preferred against him, her or them, in the same manner as persons are held by such magistrates to answer, upon information made before them for like offences. Ibid. § 4. Powers and duties 26. The officer issuing such process shall have the same power to examine the defendant as in other cases; the testimony of all witnesses examined before the of justices, &c., on jury under this act shall be reduced to writing, by the officer holding the inquest, and shall be returned by him, together with the inquisition of the jury and the recognizances and examinations taken by such officer, to the next court of quarter sessions of the proper county. the hearing. Ibid. § 5. Payment of costs. 27. The compensation of the mayor or other magistrate holding such inquest, and of the jurors and witnesses in attendance, shall be the same as is now allowed by law in cases of coroner's inquests super visum corporis, and shall be paid by the person or persons at whose instance the proceedings are instituted, in all cases where the inquest shall not find sufficient cause to bind over any person on a charge of causing or being accessory to such burning; but if such cause shall be certified by the said inquest, then the cost of the proceedings shall abide the issue in court, in the same manner as costs before committing magistrates on similar charges instituted by information now do, and shall be paid accordingly: Provided, That this act shall not apply to the city of Philadelphia or to the county of Allegheny. 28. Any person or persons who shall intentionally set fire to said lands,(7) shall forfeit and pay a sum not exceeding five hundred dollars, nor less than fifty dolFiring wild lands in lars, or shall be confined in the county prison for a term not exceeding one year, nor less than thirty days, or both, at the discretion of the court, on conviction in any of the courts of this commonwealth; one-half of said fine to be paid to the person or persons who make the information, and the other half to be paid into the county treasury. Not to apply to 9 April 1969 § 1. certain counties. 2 June 1870 § 1. P. L. 1316. Duties of county commissioners. 31 March 1860 § 97. P. L. 407. Assault and battery. 29. It shall be the duty of the commissioners of the several counties of this commonwealth to appoint persons, under oath, whose duty it shall be to ferret out and bring to punishment all persons who, either wilfully or otherwise, cause the burning of timber lands, and to take measures to have such fires extinguished where it can be done: the expenses thereof to be paid out of the county treasury, the unseated land tax to be the first applied to such expenses. VI. Assault. 30. Any person who shall be convicted of an assault and battery, or of an assault, shall be sentenced to pay a fine, not exceeding one thousand dollars, and undergo an imprisonment, not exceeding one year, or both, or either, at the discretion of the court.(r) (q) That is, mountain and other wild lands in Union county; by act 2 June 1870, § 2, this provision is extended to the counties of Schuylkill, Lehigh, Berks [Lycoming], Centre, Snyder, Luzerne and Union. P. L. 1317. But Lycoming was exempted from its provisions, by act 19 May 1871. P. L. 950. (2) The 97th and 98th sections are new. Section 98 provides for the punishment of assault and battery, |