11 March 1864 § 1. P. L. 6. Enlisting men for the military service of other states. 31 March 1860 § 8. P. L. 385. cases. XXXI. Enlistment. 185. No person shall, within this state, recruit or enlist, or attempt or offer to recruit or enlist, any man or men, to serve as a volunteer of any other state, or shall, in any way, procure or attempt to procure any man or men to leave this state, for the purpose of enlisting in the volunteers of any other state; and any person offending in the premises, or any of them, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to a fine, not exceeding five hundred dollars, and be imprisoned, at hard labor, for a term not exceeding twelve months; and all fines imposed under this act shall be paid to the person who shall have prosecuted the party offending to conviction. XXXII. Escape. 186. If any person arrested and imprisoned, charged with an indictable offence, shall break prison or escape, (w) or shall break prison, although no escape be actuEscape, in criminal ally made, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding two years, if the criminal charge on which such person stood committed was a crime or misdemeanor punishable, on conviction, by imprisonment by separate or solitary confinement at labor; or to imprisonment not exceeding one year, if such charge was a crime or misdemeanor punishable, on conviction, by siniple imprisonment without labor. Breach of prison. Ibid. § 4. Aiding a prisoner in escaping. Ibid. § 5. Voluntarily per 187. If any prisoner imprisoned in any penitentiary or jail, upon a conviction for a criminal offence, other than murder in the first degree, or where the sentence is for imprisonment for life, shall break such penitentiary or jail, although no escape be actually made by him, such person shall be guilty of a misdemeanor, and upon conviction of said offence, shall be sentenced to undergo an imprisonment, to commence from the expiration of his original sentence, of the like nature, and for a period of time not exceeding the original sentence, by virtue of which he was imprisoned, when he so broke prison and escaped, or broke prison although no actual escape was made by him.(x) 188. If any person shall aid or assist a prisoner, lawfully committed or detained in any jail for any offence, to make or to attempt to make his escape therefrom, although no escape be actually made, or if any person shall convey, or cause to be delivered to such prisoner, any disguise, instrument or arms proper to facilitate the escape of such prisoner, although no escape or attempt to escape be actually made, he shall, on conviction, be deemed guilty of a misdemeanor, and be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding two years; and if any person shall aid or assist any prisoner to escape, or attempt to escape from the custody of any sheriff, constable, officer or other person who shall have the lawful charge of such prisoner, every person so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or simple imprisonment, as the court may direct, not exceeding two years. 189. If any sheriff, coroner, keeper of any jail, constable or other officer, having any offender, convicted or accused of any crime, in his lawful custody for such mitting prisoners crime, shall voluntarily permit or suffer such offender to escape and go at large, (y) every such sheriff, coroner, keeper of jail, constable or other officer so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding five years, and shall moreover, by the said sentence, be dismissed from office. to escape, by officers. Ibid. § 6. Negligently permitting prisoners to escape. 190. If any keeper, jailer, sheriff or other officer, having a prisoner in his custody or charge, under a criminal conviction, sentence or charge, shall suffer such prisoner, through gross negligence, to escape, shall be guilty of a misdemeanor, and on (w) The provisions of the 3d, 4th, 5th, 6th, 7th and 8th sections are new to our statute law, although punishable at common law. They will be found to provide against a series of offences which either defeat or seriously impede the administration of criminal justice. A wide range of discretion in the punishments of these crimes is necessarily given to the courts, because they are so varied in their nature, and so different in their intrinsic magnitude, that it would be impossible to make even an approximate approach to the extent of penalty which should be applied to each particular case as it arises. The common-law punishments now attached to them, of fine and imprisonment, have no limits other than the discretion of the court. Those prescribed by those sections restrain this general power so far as it has seemed to us to be judicious or practicable. The only existing statutory penalties against these crimes are found in the 31st and 32d sections of the act of 5 April 1790, 2 Sm. 541; and the 6th section of the act of 4 April 1807, 4 Sm. 394. These laws punish negligent escapes suffered by jailers, with fines, and make escapes by prisoners sentenced to hard labor punishable with such additional hard labor and corporal punishment, not extending to life or limb, as the courts before whom such escaped prisoner shall have been convicted, shall adjudge and direct; a discretion in the application of punishment, certainly sufficiently liberal. Report on the Penal Code 12-13. (x) See Commonwealth v. Miller, 2 Ash. 61. (y) In an indictment for such an escape, it is unnecessary to allege that the defendant knew the person or persons escaping to be guilty. Wearer v. Commonwealth, 29 P. S. 445. conviction, be sentenced to an imprisonment not exceeding one year, and to pay a 81 March 1860 § 6. fine, not exceeding five hundred dollars. P. L. 385. 191. If any sheriff, coroner or keeper of a jail, constable or other officer, shall, wilfully and without reasonable cause, refuse to execute any lawful process (2) Refusal or wilful directed to him, requiring the apprehension or confinement of any person charged neglect by an offiwith or convicted of a criminal offence; or shall, wilfully and without reasonable cer to execute criminal process. cause, omit to execute such process, by which such prisoner shall escape; he shall be guilty of a misdemeanor, and on conviction, be sentenced to an imprisonment, not exceeding two years, and a fine, not exceeding five hundred dollars. 192. It shall be lawful for the judges of the courts of oyer and terminer, quarter 10 June 1885 § 1. sessions and general jail delivery of this commonwealth, to sentence any prisoner P. L. 79. who may be convicted of jail breaking or attempting to break jail, to the proper Prisoners conpenitentiary for said offence, and to add to said sentence for jail breaking or victed of jail breakattempting to break jail, a further sentence to the said penitentiary for the ing may be senremainder of the term which the said prisoner was serving at the time of his or penitentiary. her escape. tenced to the Ibid. § 2. 193. Whenever a sentence to the penitentiary for the remainder of a term of imprisonment as aforesaid shall be imposed by the judges of the aforesaid courts, Prisoner released said sentence shall release the prisoner on whom it may be imposed from serving from balance of the remainder of the term which he or she was serving in such prison at the time county prison of his or her escape. XXXIII. Explosives. (a) term. P. L. 102. lic conveyances. 194. If any person shall enter into or upon any railroad train, locomotive, 28 May 1878 § 1. tender or car thereof, or into or upon any stage-coach or other conveyance used for the carrying of freight or passengers, having in his custody, or about his per- Carrying explosive son, any nitro-glycerine or torpedo, (or) shall carry or cause to be carried, other substances in pubthan as freight regularly shipped as such, such substance, material or device, upon such train, locomotive, tender, car, coach or other conveyance, such person shall be deemed guilty of a misdemeanor; and upon conviction thereof, shall be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding three months, or either, in the discretion of the court. Ibid. § 2. 195. The conductor or persons having charge and control of any railroad train, coach or other conveyance for the carriage of freight or passengers, shall have Powers of conpower to arrest any party or parties, or person or persons, found violating the pro- ductors, &c., to visions of the first section hereof, and to detain such party or person until reaching arrest. some place, where such person or persons may be delivered to a constable or other police authority, to be taken before any magistrate having jurisdiction of criminal matters, there to be proceeded against by information, as in other criminal cases; and it shall be lawful to prosecute such offenders in any county through Venue. which said public conveyance passes, without reference to the place where such offenders were arrested. 196. Any person, who shall knowingly and wilfully sell or cause to be sold, to 10 June 1881 § 1. any person under sixteen years of age, any cannon, revolver, pistol or other such P. L. 111. deadly weapon, or who shall knowingly and wilfully sell, or cause to be sold, to any Sale of deadly such minor, any imitation or toy cannon, revolver or pistol so made, constructed weapons and exor arranged as to be capable of being loaded with gunpowder or other explosive plosives to minors. substance, cartridges, shot, slugs or balls, and being exploded, fired off and discharged, and thereby become a dangerous or deadly weapon, or who shall knowingly and wilfully sell, or cause to be sold, to any such minor, any cartridge, gunpowder or other dangerous and explosive substance, shall, in every such case, be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding three hundred dollars. 11 June 1885. P. L. 111. 197. Any person or persons, who shall knowingly and wilfully make, manufacture and sell, or cause to be made, manufactured or sold, any toy cannon, gun, pistol, revolver or other such deadly weapon, or who shall knowingly or wilfully expose Manufacture and to sale any such weapon made elsewhere and brought within the state, shall be sale of toy deadly guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine, not exceeding five hundred dollars, or suffer imprisonment for a term not exceeding one year, or both, or either, at the discretion of the court: Provided, This act shall not interfere with the manufacture and sale of legitimate fire arms. XXXIV. Extortion. weapons. 198. If any justice, clerk, prothonotary, sheriff, coroner, constable (b) or other 31 March 1860 § 12. officer of this commonwealth, shall wilfully and fraudulently (c) receive or take any P. L. 387. (z) An indictment under this section would show, by proper averments, that the process was lawful. United States v. Stowell, 2 Curt. C. C. 153. And see United States v. Tinklepaugh, 3 Bl. C. C. 425. For form of indictment, see Whart. Prec. § 885. (a) See tit. "Gunpowder," and supra sub-tit. 44 Assault." (b) A deputy constable appointed under the act of 9 May 1889, is not an officer of the commonwealth within this act. Commonwealth v. Saulsbury, 152 P. S. 554. (e) In an indictment for extortion, it must be shown that the illegal charge was made "wilfully and fraudulently," but in an action for the penalty given P. L. 857. Extortion, in 31 March 1860 § 12. reward or fee to execute and do his duty and office, but such as is or shall be allowed by some act of assembly of this commonwealth; or shall receive or take, by color of his office, any fee or reward whatever, not, or more than is allowed as aforesaid; taking illegal fees. he shall be deemed guilty of a misdemeanor in office, and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, or to undergo an imprisonment, not exceeding one year. (d) 31 March 1860 § 111. P. L. 410. pretences. XXXV. False pretences. 199. If any person shall, by any false pretence, (e) obtain the signature of any person to any written instrument, or shall obtain from any other person, any chatCheating by false tel, money or valuable security, (g) with intent to cheat and defraud(h) any person of the same, every such offender shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment, not exceeding three years: Provided always, That if upon the trial of any person indicted for such a misdemeanor, it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.(i) Ibid. § 112. Cheating lodginghouse keepers. 20 April 1876 § 1. P. L. 145. 200. If any person, with intent to cheat or defraud, shall, by any false or fraudulent representations, or by any false show of baggage, goods or chattels, which are calculated to deceive any hotel, inn or boarding-house keeper, obtain lodging and credit in any hotel, inn or boarding-house, and shall subsequently refuse to pay for his board and lodging, the person so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding one hundred dollars, or undergo an imprisonment, not exceeding three months, or both, or either, at the discretion of the court. (k) 201. Every person who shall, at any hotel or inn, or boarding-house, receive, or cause to be furnished, any food or accommodations, with intent to defraud the owner or proprietor of such hotel, inn or boarding-house, out of the value or price by the act of 1814, the officer is liable, although the charge was made by mistake, and without any intention to extort. In an indictment, the officer might not be liable for the misconduct of his deputies, if unauthorized and unsanctioned, but in a civil suit, he is responsible for them. Miller v. Lockwood, 17 P. S. 253. (d) This section is substantially the same with the first section of the act of the 25th of March 1831, P. L. 211, except that it generalizes its provisions, and confines the punishment to the actual taking any fee or reward more than is allowed by law for the service rendered; whereas the act of 1831 makes the simple receipt of fees before the service is rendered a criminal misdemeanor. Although such irregularity may be, and is properly punished by a penalty imposed by the fee-bill, it seems to us too severe to visit it with the consequences of a criminal misdemeanor. In this section also the fine and imprisonment is limited; whereas, under the act of 1831, it rests in the discretion of the court. Report on the Penal Code 31. See tit. "Fees." (e) The false pretences in the contemplation of the act, are such as assert the existence of some fact calculated to impose upon a man of common and ordinary caution, which false pretence creates the credit given to the accused. Commonwealth v. Hutchinson, 2 Pars. 309. Commonwealth v. Alsop, 1 Brewst. 328. Commonwealth v. Fisher, 9 Phila. 594. Such as the false assertion of the possession of money or property, on the credit of which goods are obtained. Commonwealth v. Burdick, 2 P. S. 163. Commonwealth v. Poulson, 2 Pars. 326. But this must relate to the present condition of the party. Wolfe's Case, 6 Phila. 78. It has been held, however, not to extend to a false representation of the quality of goods on which an advance of money is obtained, if they are the same in specie as represented. Regina v. Brian, 7 Cox C. C. 313. And see Commonwealth v. Alsop, 1 Brewst. 328. A mere naked lie, in the transaction of business, does not constitute the statutory offence. Judge KING'S Charge to the Grand Jury, Q. S. Phila., 4 February 1850, MS. Thus, the purchase of goods, for which the buyer is unable to pay, although the promise was specious and fair, and also false when made, does not constitute a false pretence within the act. Common wealth v. Hickey, 2 Pars. 317. A promise for future conduct is not within the statute. Commonwealth v. Evans, 28 L. I. 310. Commonwealth v. Moore, 11 W. N. C. 456. It is not necessary to allege a scienter, when the defendant must, necessarily, have been conscious of the falsity of his own statement; but the defendant may show on the trial, that he did not know that his assertions were untrue in fact. Commonwealth v. Blumenthall, Whart. Prec. § 528, note f. It is no less a false pretence, because the party imposed upon might, by common prudence, have avoided the imposition. Commonwealth v. Henry, 1 Pitts. Leg. J., 28 January 1854. And it is not necessary that the pretence should be in words; the conduct and acts of the party will be sufficient, without any verbal assertion. Commonwealth v. Daniels, 2 Pars. 332. (g) If the subject-matter of the charge be land, and the title to it, and the depriving of the owner of it by cheating, the offence is not indictable at common law or under the statute. Commonwealth v. Woodrun, 4 Clark 207; unless, under this act, the signature of the person defrauded be obtained, by such false pretence, to some instrument of writing. Or, unless money be obtained on the sale of land, to which the defendant, knowingly and falsely, represents that there is a good and marketable title. Commonwealth v. Alsop, 1 Brewst. 328. A receipt for a debt is not a valuable security within the meaning of the act. Moore v. Commonwealth, 8 P. S. 260. And see Regina v. Smith, Dearsly & Bell 566. Commonwealth v. Shissler, 9 Phila. 587. (h) No indictment will lie, where the false pretence, if successful, will neither cheat nor defraud; therefore, false representations inducing one to pay a just debt, are not indictable. Commonwealth v. Thompson, 2 Clark 33. People v. Thomas, 3 Hill 169. The intention to defraud must exist when the credit is given. Commonwealth v. McCrossin, 2 Clark 6. See Commonwealth v. Keeper of the Prison, 15 W. N. C. 282; the spiritual medium case. (i) This section, except the proviso, is the 21st section of the act of 1 July 1842, modified in its phraseology. P. L. 345. The proviso is added to meet the case in which property said to have been obtained under false pretences, has been obtained under circumstances really amounting to larceny. Without such a provision as this, in such case, the defendant would be entitled to an acquittal of the misdemeanor, though subject afterwards to be tried for the felony. Report on the Penal Code 30. (k) This section is the re-enactment of the 3d section of the act of 7 May 1855. P. L. 480. Report on the Penal Code 31. of such food or accommodation, and every person who shall obtain credit at any 20 April 1876 § 1. hotel, inn or boarding-house, by the use of any false pretences or device, or by P. L. 145. depositing at such hotel, inn or boarding-house, any baggage or property of value Penalty for fraudless than the amount of such credit, or of the bill by such person incurred, with ulently obtaining such fraudulent intent, and any person who, after obtaining credit or accommoda- board, &c. tion at any hotel, inn or boarding-house, shall abscond from such hotel, inn or boarding-house, and shall surreptitiously remove his baggage or property therefrom,() shall [upon conviction] be adjudged guilty of a misdemeanor; and upon conviction, shall be punished by imprisonment in the county jail for a term of not more than six months. 19 May 1887. P. L. 130. 202. Every person who, by false pretence, shall obtain from any club, association, society or company for improving the breed of cattle, horses, sheep, swine or other domestic animals, the registration of any animal in the herd register, or Obtaining the regother register of any such club, association, society or company, or a transfer of istration of cattle, any such registration, and every person who shall knowingly give a false pedigree giving of a false of any animal, upon conviction thereof, shall be punished by imprisonment in a pedigree. county jail for a term not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. XXXVI. Fast driving. horses, &c., or the P. L. 391. 203. If any person shall be maimed, or otherwise injured in person, or injured 31 March 1860 § 29. in property, through or by reason of the wanton and furious driving or racing, or by reason of the gross negligence or wilful misconduct of the driver of any public Furious driving stage, mail-coach, coachee, carriage or car, employed in the conveyance of passen- and racing. gers; or through or by reason of the gross negligence or wilful misconduct of any engineer or conductor of any locomotive engine or train of railroad cars or carriages; or any captain or other officer of any steamboat employed in the conveyance of passengers, or of goods, wares, merchandise or produce of any description, such driver, engineer, conductor, captain or officer, shall, on conviction thereon be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment, by separate or solitary confinement, or by simple imprisonment not exceeding five years: Provided, That the provisions of this act shall not interfere with the civil remedies against the proprietors and others, to which the injured party may by law be now entitled.(m) XXXVII. Fire-alarm telegraph. 204. If any person or persons shall wilfully give, or cause to be given, any false 28 Feb. 1865 § 1. alarm of fire, from a fire-alarm telegraph box or boxes, or shall break, or cause to P. L. 238. be broken, any fire-alarm signal-box, or any pole, post or wire connected with the Wilful interference police and fire-alarm telegraph, within the city of Philadelphia, or shall injure or with fire-alarm in any manner interfere with or interrupt the working of the same, he, she or telegraph in Philathey shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine, not exceeding five hundred dollars for each offence, or by imprisonment, for a term not exceeding two years, or by both. XXXVIII. Forcible entry and detainer. delphia. 205. If any person shall, with violence and a strong hand, enter upon or into 31 March 1860 § 21. any lands or buildings, either by breaking open doors, windows or other parts of P. L. 390. a house, or by any kind of violence or other circumstances of terror, (n) or if any Forcible entry person, after entering peaceably, shall turn out by force or by threats, or menacing defined and punconduct, the party in possession,(0) every person so offending shall be guilty of a (1) See Commonwealth v. Morton, 6 Luz. L. Reg. 207. (m) This section, which is the revision of the act of 1 April 1836, P. L. 427, is intended more effectually to guard the community against the disastrous consequences which too frequently attend the neglect and wantonness of those charged with the conducting of public vehicles for the transportation of travellers and property. The original act punishes the offence prescribed against by it, with a fine not exceeding $50, and simple imprisonment not exceeding six months; a punishment utterly inadequate to most cases of the offence. The proposed section, while it gives the court power to extend the punishment in proper cases, still leaves room for any moderation required by attending circumstances. As the like evils may result from the gross and wilful misconduct of steamboat officers, a provision has been introduced to meet such cases. Report on the Penal Code 17. (n) There must be such acts of violence, or such threats, menaces, signs or gestures, as may give reason to apprehend personal injury or danger, in standing ished. in defence of the possession. Pennsylvania v. Robison, Add. 14, 17. Pennsylvania v. Waddle, Ibid. 42. Burd v. Commonwealth, 6 S. & R. 252. The statute requires as an indispensable ingredient in the offence, "violence and a strong hand." Respublica v. Devore, 1 Y. 501. Where no other force is used than is implied in every trespass, the case is not within the statute. Commonwealth v. Dixon, 1 Sm. 3 Sm. 7 Sm. 723. Commonwealth v. Housknecht, 1 Kulp 367. The force must amount to a breach of the peace. Commonwealth v. Conway, 1 Brewst. 509. Commonwealth v. Rees, 2 Ibid. 564. Penn (0) Unless there be possession in another at the time of the entry, it is no offence, whatever may be the degree of force used. Pennsylvania v. Waddle, Add. 43. Pennsylvania v. Lemmon, Ibid. 315. sylvania v. Leach, Ibid. 355. And the possession of the prosecutor must be quiet, peaceable and actual. Commonwealth v. Keeper of the Prison, 1 Ash. 140. Pennsylvania v. Robison, Add. 17. Pennsylvania v. Lemmon, Ibid. 316. Pennsylvania v. Leach, Ibid. 355. Burd v. Commonwealth, 6 S. & R. 252. Prutz P. L. 390. 31 March 1860 § 21. forcible entry, and on conviction, shall be sentenced to pay a fine, not exceeding five hundred dollars, or to undergo an imprisonment, not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements entered as aforesaid.(p) Ibid. § 22. Forcible detainer. 31 March 1860 § 169. P. L. 422. Fraudulent making or altering of any written instrument. Ibid. § 170. Forging public seals. Ibid. § 171. Embezzling or cor- 206. If any person shall, by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the possession of any lands or tenements, whether the possession of the same were obtained peaceably or otherwise, such person shall be deemed guilty of forcible detainer,(q) and upon conviction thereof, shall be sentenced to pay a fine, not exceeding five hundred dollars, or to undergo an imprisonment, not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements unlawfully detained as aforesaid: Provided, That no person shall be adjudged guilty of forcible detainer, if such person, by himself, or by those under whom he claims, has been in peaceable possession for three years next immediately preceding such alleged forcible detention.(r) XXXIX. Forgery. 207. If any person shall fraudulently make, sign, alter, utter or publish, or be concerned in the fraudulently making, signing, altering, uttering or publishing any written instrument, other than notes, bills, checks or drafts already mentioned, to the prejudice of another's right,(s) with intent to defraud any person or body corporate, or shall fraudulently cause or procure the same to be done, he 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 ten years.(1) 208. If any person shall, falsely and fraudulently, forge or counterfeit, or falsely and fraudulently be concerned in the forging and counterfeiting the great or less seal of the commonwealth, the public and common seal of any court, office, county or corporation, or any other seal authorized by law, or shall falsely and fraudulently utter and publish any instrument or writing whatever impressed with such forged and counterfeit seal, knowing the same to be forged and counterfeit, he 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.(u) 209. If any person shall forge, deface, embezzle, alter, corrupt, withdraw, falsify or unlawfully avoid any record, charter, gift, grant, conveyance or contract; or shall knowingly, fraudulently or unlawfully, spare, take off, discharge or conceal any fine, forfeited recognizance or other forfeiture; or shall forge, deface or falsify man v. Ferree, 10 W. 144. Elliott v. Powell, Ibid. 455. Commonwealth v. Conway, 1 Brewst. 509. Commonwealth v. Housknecht, 1 Kulp 367. A landlord may be indicted for forcibly ejecting a sub-tenant, after the termination of the lease, and the removal of the principal tenant. Commonwealth v. Kensey, 2 Pars. 401. And a prosecution for forcible entry will lie by one tenant in common against his co-tenant, where the possession has been adverse and exclusive. Commonwealth v. Oliver, 2 Pars. 420. (p) To authorize judgment of restitution, the estate of the prosecutor must be averred in the indictment; possession is not enough. Torrence v. Commonwealth, 9 P. S. 184. Commonwealth v. Toram, 2 Pars. 411. See Commonwealth v. Gable, 1 Penny. 26. (q) The entry and detainer are distinct offences, and although both be charged in the same indictment, the defendants may be convicted of one and acquitted of the other. Commonwealth v. Rogers, 1 S. & R. 124. Commonwealth v. Miller, 107 P. S. 276. (r) These two sections relate to the offences of forcible entry and detainer. The first specifies what shall constitute a forcible entry, and declares how the offence shall be punished; the second declares what conduct shall amount to a forcible detainer, and also defines the nature and extent of the punishment to be inflicted upon the offender. The only statutory enactment of our own concerning the offences here referred to, is the act of 1700, 1 Sm. 1; but the English statutes, 15 Rich. II., c. 11, 8 Hen. VI., c. 9, 31 Eliz. c. 11, and 21 Jac. I., c. 15, relative to forcible entry and detainer, are all reported to be in force in this state. The provisions contained in our statute of 1700, as well as those of the aforementioned English statutes, are all supplied by the 21st and 22d sections of this act. Whilst the language is greatly simplified and condensed, the only material alteration in the law itself, will be found in making the proceeding by indictment the exclusive criminal remedy, thereby excluding the inquisition now authorized to be held before two justices of the peace, which is believed to be entirely unnecessary, in view of the fact that restitution is to form part of the sentence, except in cases of conviction for forcible detainer, where three years' peaceable possession has immediately preceded the commission of the offence. This limitation has not been extended to conviction for forcible entry, because, according to the statutory limitation proposed by us for misdemeanors, no convictions can be had unless the offender is prosecuted within two years after the commission of the offence. The punishment of fine and imprisonment is the same as at common law, except the maximum is mentioned, as in other sections of this bill. Report on the Penal Code 16. An indictment for forcible detainer must aver a prior possession by the prosecutor, and an unlawful detention by force and with a strong hand, or by menaces or threats. Commonwealth v. Brown, 138 P. S. 447. (s) The fraudulent alteration of the date of a receipt is not indictable, unless it be shown to have been to the prejudice of another's right; and this cannot be, until the defendant has in some manner made use of the altered instrument. Commonwealth v. Shissler, 9 Phila. 587. The alteration of a lease, to make it conform to the intention of the parties, does not amount to a forgery. Pauli v. Commonwealth, 89 P. S. 432. Where a check is proved on habeas corpus to be false, and it is found in the possession of the relator, sufficient probable cause is shown for holding to bail for forgery. Commonwealth v. Sheriff, 10 C. C. 341. (t) This section is intended to embrace the large class of forgeries of written instruments, not embraced in the preceding sections, which have special reference to bank-paper, and which are now punished_at common law. Report on the Penal Code 36. See Commonwealth v. Cullen, 13 Phila. 442. (u) This section is the re-enactment and extension of the act of 1705. 1 Sm: 49. The crime is now punished by the 4th section of the act 23 April 1829. 10 Sm. 437. Corporation seals have been included. Report on the Penal Code 36. |