P. L. 402.

31 March 1860 § 75. takes place, and he is hereby required, within ten days after such sentence, to transmit a full and complete record of the trial and conviction to the governor of this commonwealth.

Punishment for murder of the

first degree.

14 April 1893.

P. L. 17.

Of the second degree.

31 March 1860 § 77.

P. L. 402.

Petit treason abolished.

Ibid. § 78. Voluntary manslaughter.

Ibid. § 79.

Involuntary manslaughter.

31 March 1860 § 20. P. L. 439.

Indictments for

233. Every person duly convicted of the crime of murder of the second degree shall, for the first offence, be sentenced to undergo an imprisonment, by separate or solitary confinement, not exceeding twenty years, and for the second offence, for the period of his natural life.(a)

234. Every person liable at any former period to be prosecuted for petit treason, shall in future be indicted, proceeded against and punished as is directed in other kinds of murder.

235. Every person convicted of any voluntary manslaughter,(b) shall be sentenced to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, or simple imprisonment, not exceeding twelve years, and in the discretion of the court, to give security for good behavior during life, or for any less time, according to the nature and enormity of the offence.

236. If any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, (c) it shall and may(d) be lawful for the district attorney, with the leave of the court, to waive the felony and to proceed against and charge such person with a misdemeanor, and to give in evidence any act or acts of manslaughter; and such person, on conviction, shall be sentenced to pay a fine, not exceeding one thousand dollars, and to suffer an imprisonment, not exceeding two years; or the district attorney may charge both wilful and involuntary manslaughter in the same indictment, in which case the jury may acquit the party of one, and find him or her guilty of the other charge.(e)

237. In any indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient, in every indictment for murder, to charge that murder and man- the defendant did feloniously, wilfully and of his malice aforethought, kill and slaughter. murder the deceased; and it shall be sufficient in every indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased. 238. In any indictment for involuntary manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for involuntary maninvoluntary man- slaughter, to charge that the defendant did unlawfully kill and slay the deceased.

27 April 1871 § 1. P. L. 244.

Indictment for

slaughter.

31 March 1860 § 39. P. L. 392. Incestuous fornication.

XLV. Incest.

239. If any person shall commit incestuous fornication (g) or adultery, or intermarry within the degrees of consanguinity or affinity, according to the following table (established by law), he or she shall, 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, not exceeding three years; and all such marriages are hereby declared void. (h)

The table of degrees of consanguinity and affinity is as follows:

(a) This is an amendment of the act 31 March 1860, $76. P. L. 402.

(b) To reduce a felonious killing to the grade of manslaughter, the circumstances must negative all evidence of cool depravity of heart, or of wanton cruelty. Commonwealth v. Drum, 58 P. S. 10. Thus, if two persons agree to fight, and one is killed, without premeditation or malice, it is manslaughter. Commonwealth v. Lenox, 3 Brewst. 250. So, to kill a man whom one finds in the act of adultery with his wife, in the first transport of passion, is but manslaughter. Commonwealth v. Whitler, 2 Brewst. 388. And where A in a quarrel with B at an election poll, shot a pistol at B and in the scuffle which ensued, another barrel was discharged, which killed a boy, this was held to be voluntary manslaughter. Commonwealth v. Flanigan, 8 Phila. 430.

(c) Involuntary manslaughter is, where it plainly appears that neither death nor any great bodily harm was intended, but death is accidentally caused by some unlawful act, not amounting to felony; or an act not strictly unlawful in itself, but done in an unlawful manner, and without due caution. Commonwealth v. Gable, 7 S. & R. 428. Commonwealth v. Bilderback, 2 Pars. 447. Discharging a pistol, in sport, though charged with powder only, if death ensue, is involuntary manslaughter. Commonwealth v. Simler, Lewis's Cr. L. 422. What is carelessness, and what is due care, are matters of fact to be determined by a jury, in each particular case as it arises.

Commonwealth v. Kuhn, 1 Pitts. 13. And see Logue v. Commonwealth, 38 P. S. 265, and Commonwealth v. Ellenger, 1 Brewst. 352, as to what is excusable homicide.

(d) See Commonwealth v. Gable, 7 S. & R. 426, 435.

(e) One indicted for murder cannot be convicted of involuntary manslaughter. It must be prosecuted and punished as a misdemeanor. Commonwealth v. Gable, 7 S. & R. 423. Commonwealth v. Bilderback, 2 Pars. 447. Walters v. Commonwealth, 44 P. S. 135. Commonwealth v. Mellert, 2 Wood. 288.

(g) Illicit intercourse with one recognized as a daughter, and with whose mother the defendant had lived in reputed wedlock, is sufficient to convict. Commonwealth v. Bruce, 4 Clark 14.

(h) This section is a revision of the act of 1705, 1 Sm. 26. The degrees of consanguinity and affinity within which marriages are forbidden by this act, have not been changed; but the punishment has been made more accordant with the gravity of the crime. The act of 1705 assigns to it the same punishment as fornication and adultery, with the addition of a fine to the value of one-third of the estates of the offenders. Report on the Penal Code 19. See Parker's Appeal, 44 P. S. 309. Brewer v. Blougher, 14 Pet. 178. This does not repeal the 5th section of the act of 13 March 1815, concerning divorces. Walter's Appeal, 70 P. S 392.

Do.

do.
do.

son's wife.

son's daughter.

do.

wife's daughter.

do. the daughter of his wife's son or daughter.

A woman may not marry her mother's husband.

Do.

Do.
Do.

do.

daughter's husband.

husband's son.

the son of her husband's son or daughter.

XLVI. Insolvency.

240. If it shall appear to the court, upon the hearing of any petition in insol- 81 March 1860 § 131. vency, either by the examination of the petitioner, or other evidence, that there is just ground to believe either —

P. L. 414. Fraudulent insol

I. That the insolvency of the petitioner arose from losses by gambling, or by the vency. purchase of lottery-tickets; or

II. That such petitioner had embezzled (i) or applied to his own use any money, or other property, with which he had been entrusted, either as bailee, agent(k) or depositary, and to the prejudice of the opposing creditors; or

III. That he has concealed any part of his estate or effects, or colluded or contrived with any person for such concealment, or conveyed the same to any person, for the use of himself, or any of his family or friends, or with the expectation of receiving any future benefit to himself or them, and with intent to defraud his creditors; in every such case, it shall be the duty of the court to commit such person for trial.

241. If such debtor shall, upon trial, be convicted() of any of the acts mentioned in the preceding section, he shall be adjudged guilty of a misdemeanor, and shall be sentenced as follows:

Ibid. § 182.

Punishment of fraudulent insol

I. If found guilty of embezzlement or concealment of property, as aforesaid, he vency. shall be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years.

II. If it shall appear, by the verdict of the jury on such trial, that the insolvency of the petitioner was caused by gambling or the purchase of lottery-tickets, as aforesaid, he shall be sentenced to an imprisonment not exceeding three years.

242. If no bill shall be presented to the grand jury at the next sessions, or if the Ibid. § 138. bill shall not be found, or if the indictment shall not be tried at the second session Indictment to be after the commitment of such petitioner, unless the postponement of the trial take tried at second place at the instance of such petitioner, or if, upon trial, such debtor be acquitted, term. it shall be the duty of the court of common pleas to discharge him from imprisonment upon his proceeding as is provided by the insolvent laws.

cealment of his effects.

243. If any person, with intent to defraud the creditors of an insolvent debtor, Ibid. § 134. or any of them, shall collude or contrive with such insolvent debtor for the con- colluding with an cealment of any part of his estate or effects, or for giving a false color thereto, or insolvent for conshall contrive or concert any grant, sale, lease, bond or other instrument or proceeding, either in writing or by parol, or shall become a grantee, purchaser, lessee, obligee or other like party, in any such instrument or proceeding, with the like intent, or shall act as broker, scrivener, agent or witness, in regard to such instrument or proceeding, with the like intent, such person shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine, not exceeding ten thousand dollars, and to undergo an imprisonment, not exceeding two years, and

(i) See Hassinger's Case, 2 Ash. 287.

(k) A tax-collector is such agent. Fisher's Case, 2 Bright. Dig. 1365, pl. 11.

(If acquitted, he must be discharged by the

court. Mercer's Case, 2 Wh. Dig. 27, pl. 125. But if convicted, and pardoned, he may still be held in custody under the execution. Bramson's Case, 1 Ash.

84.

81 March 1860 § 184. shall forfeit all claim which he may have to any part of the estate of such debtor.(m)

P. L. 414.

4 Feb. 1870 § 1. P. L. 14.

Fire policies by others than corporations, prohibited.

Ibid. § 2.

Punishment there

for.

18 June 1881 § 1. P. L. 109.

XLVII. Insurance.

244. It shall be unlawful for any person, partnership or association, to issue, sign, seal, or in any manner execute, any policy of insurance, contract or guarantee, against loss by fire or lightning, without authority expressly conferred by a charter of incorporation, given according to law; and every such policy, contract or guarantee, hereafter made, executed or issued, shall be void.(mm)

245. Any person offending against the provisions of this act, or any person who shall make, execute or issue any policy of insurance, contract or guarantee, against loss by fire or lightning, without being so authorized by law, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall pay a fine, not exceeding two hundred dollars, to the commonwealth, and the costs of prosecution: onehalf of said fine shall be for the use of the informer: Provided, That nothing herein contained shall apply to any insurance company authorized by the laws of any other state to issue policies and effect insurance against loss by fire or lightning, which shall have complied with the laws of this commonwealth with respect to foreign insurance companies.

246. Any agent of a mutual, stock or co-operative life-insurance company.or association, physician or other person whatsoever, who shall knowingly make, or be concerned or interested in making, any misrepresentation or false statement, for tion to obtain life- the purpose of securing from any mutual, stock or co-operative life-insurance com

False representa

insurance.

22 April 1887. P. L. 61.

Transacting business for company

not authorized.

10 May 1893 § 1. P. L. 38.

Advertising as

pany or association, a policy of insurance or certificate of membership upon his own life, or the life of any other person, shall be guilty of a misdemeanor, and upon conviction thereof, be fined not exceeding one thousand dollars, or undergo imprisonment not exceeding one year, or both, in the discretion of the court.

247. Any person or persons, or any agent, officer, or member of any corporation paying or receiving or forwarding any premiums, applications for insurance, or in any manner securing, helping or aiding in the placing of any insurance, or effecting any contracts of insurance upon property within this commonwealth, directly or indirectly, with any insurance company or association not of this state, and which has not been authorized to do business in this state under the terms of this act, shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to a fine of not less than one hundred dollars, nor more than one thousand dollars, and upon conviction of a second offence, shall be sentenced to pay a like fine and undergo an imprisonment not exceeding one year, or either, in the discretion of the court.(n)

248. Any person or persons representing or advertising himself or themselves as the agent or agents of any insurance company of any other state or government, which has not complied with the laws of this state, by poster, circular letter or in agent of unauthor- any other way or manner, shall be deemed to be guilty of a misdemeanor, and upon conviction, shall be sentenced to pay a fine of not more than one thousand dollars, at the discretion of the court.

ized insurance

company.

Penalty.

Ibid. § 2.

Of fictitious or spurious company. Penalty.

Ibid. § 3. Repeal.

7 May 1889 § 1. P. L. 116.

Discrimination between certain policy holders forbidden.

See amendment

2 July 1895, P. L. 430, Supp. 2589.

Ibid. § 2.

249. Any person or persons representing or advertising himself or themselves as the agent or agents of any fictitious or spurious insurance company by poster, circular letter or in any other way or manner, shall be deemed to be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine of not more than five hundred dollars, and undergo imprisonment not more than three years, at the discretion of the court.

250. All acts or parts of acts inconsistent herewith are hereby repealed.

251. No life-insurance company doing business in Pennsylvania shall make or permit any distinction or discrimination in favor of individuals, between insurants of the same class and equal expectation of life, in the amount or payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes, nor shall any such company or agent thereof make any contract of insurance, or agreement as to such contract, other than as plainly expressed in the policy issued thereon, nor shall any such company or agent pay or allow or offer to pay or allow, as inducements to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefit to accrue thereon, or any valuable consideration or inducement whatever, not specified in the policy contract of insurance.

252. Any life-insurance company, its agent or agents, violating section one of this act, shall be guilty of a misdemeanor, (o) and upon conviction thereof, the

(m) The 131st, 132d, 133d and 134th sections are taken from the existing insolvent law, but, being enactments against crimes, have been introduced here. They are the 42d, 43d, 44th and 45th sections of the act of 16 June 1836. P. L. 739. The 46th section of the insolvent law, making a false oath taken by a debtor, perjury, has been left out, because embraced in the general provision of the 14th section of this act, which provides against this crime. Report on the Penal Code 31.

(mm) This act is unconstitutional, in conferring a power on a corporation, which is forbidden to an individual. Commonwealth v. Vrooman, 51 L. I. 152.

(n) This act does not apply to a citizen who contracts for the insurance of his own property. Commonwealth v. Biddle, 27 W. N. C. 287.

(0) Where the agent of a life-insurance company is indicted for offering a rebate of premium, the indictment should not be quashed for defects in matter of

7 May 1889 § 2. See amendme t

P. L. 116. 2 July 1895,

offender or offenders shall be sentenced to pay a fine of five hundred dollars on each and every violation where the amount of insurance is twenty-five thousand dollars or less, and for every additional twenty-five thousand dollars insurance or Violation of act a P. L. 430, less there shall be an additional penalty of five hundred dollars.

XLVIII Larceny.

misdemeanor.

Penalty.

253. If any person shall be guilty of larceny,(p) he shall, on conviction, be 31 March 1860 § 103. deemed guilty of felony, and be sentenced to pay a fine, not exceeding five hundred P. L. 408. dollars, and to undergo an imprisonment, by separate or solitary confinement at Larceny. labor, not exceeding three years. (q)

254. If any person shall steal any bank-bill, note, draft or check, (r) of or on Ibid. § 104. any bank, or any bill of exchange, order, warrant, draft, bill or promissory note Stealing securities for the payment of money, or any certificate or security whatsoever, entitling or or money, &c. evidencing the title of any person or body corporate, to any share, portion or interest in any public debt or security, or fund, either of this commonwealth or of the United States, or of any of the states thereof, or of any foreign state, or to any interest in any stock, fund or debt of any body corporate, company or society, or to any deposit in any savings-bank or company, being the property of another person, or any corporation, association or society, notwithstanding the said enumerated particulars are, or may be deemed in law, choses in action, such person shall be deemed guilty of larceny, and punished as is provided in the preceding section. 255. Any person who shall steal any letters-patent, charter, testament, will or deed, whether indented or poll, covenant, assurance, lease, indenture, contract, letter of attorney, or other power or instrument of writing, respecting any property, real Stealing valuable or personal, or any release, acquittance, voucher, receipt, receipt-book, letter-book, waste-book, day-book, journal, ledger, or other book of accounts belonging to another, every person so offending shall, on conviction, be adjudged guilty of larceny, and be sentenced to pay a fine, not exceeding five hundred dollars, or to undergo an imprisonment, by separate or solitary confinement, not exceeding two years, or either, or both, at the discretion of the court.

256. If any person shall be guilty of horse-stealing, or as accessory thereto before the fact, or of having received or bought any horse, knowing the same to have been stolen, the person so offending shall be guilty of felony, and shall, 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, not exceeding ten years.(8)

Ibid.

documents.

Ibid. § 105.

Horse-stealing.

Ibid. § 106.

257. If any person shall steal or rip, cut or break, with intent to steal, any glass or wood-work belonging to any building whatsoever, or any lead, iron, Stealing fixtures, copper, brass or other metal, or any utensil or fixture, whether made of metal or c other material, respectively, fixed in or to any building whatsoever, or anything made of metal, fixed in any land, being private property, or for a fence to any dwelling-house, garden or area, or in any square, street or other place dedicated to public use or ornament, every such offender shall be deemed guilty of larceny, 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.(t)

form which are amendable, or on the ground that this act is unconstitutional. Commonwealth v. Morning Star, 144 P. S. 103.

(p) A man cannot be indicted in this state, for the larceny of his own property from his bailee. Commonwealth v. Tobin, 2 Brewst. 570.

(9) Larceny is now prescribed against by the 3d and 4th sections of the act of 5 April 1790, 2 Sm. 532; the 24 section of the act of 21 March 1806, 4 Sm. 334; the 5th section of the act of 5 April 1790, 2 Sm. 533; and the 1st section of the act of 10 March 1817, 6 Sm. 412. The essential difference between the provisions of the proposed sections and the existing laws is, that care has been taken in section 104 to embrace among the subjects of larceny, many articles of personal property, or as they are technically called in law, choses in action, which are not now the subjects of larceny. In the actual condition of our civilization and commerce, all the kinds of property enumerated in this section require to be protected. Report on the Penal Code 28. (r) Obtaining a check from the drawer, and afterwards misappropriating the proceeds, was held to be a larceny, under this section. Commonwealth v. Yerkes, 29 L. I. CO. It is a felony to enter a store when the owner is absent and in charge of a boy ten years of age, and by falsehood, threat and intimidation to obtain money and goods from the store. Commonwealth v. Cruikshank, 138 P. S. 194.

(s) The crime of horse-stealing is now prescribed against by the 3d section of the act of 5 April 1790, 2 Sm. 532; and the 4th section of the act of 23 April

Supp. 2589.

1829, P. L. 345. The amendments introduced extend
the penalties of the crime to receivers, and increase
the maximum punishment to ten years' penal impris-
onment. Report on the Penal Code 28.

(t) According to the common law, personal goods
only were the subjects of larceny; nothing, therefore,
which was annexed or adhering to the land could be
made the subject thereof. Thus, if a person cut
down trees, pluck fruit, pull down the stones or
bricks of a building or the fixtures of a house, and
instantly carry them away, he cannot be convicted of
stealing, because the property is part and parcel of
the freehold; but if once severed and allowed to lie
on the ground, for some period of time, before being
carried away, they then become personal goods, and
the subsequent wrongfully carrying them away was
larceny. So strict is the law relating to land, or
realty (as it is called in the law), that it was held that
larceny could not be committed of the title-deeds to
the land, or the box in which they were contained.
So, written documents, such as bonds, bills of ex-
change, promissory notes, &c., were not, as such, the
subjects of larceny, on the supposed ground that, as
they are mere evidences of debt, they were of no in-
trinsic value. In our large cities, thefts of the fix-
tures of dwelling-houses are a great evil; such houses,
when vacant, are entered by depredators, who not
only injure the owner by taking away his gas or
water fixtures, but subject him to loss and injury,
consequent upon the flowing of the gas or water.
The necessity, therefore, of such provisions as are

258. If any clerk, servant or other person in the employ of another, (u) shall, by virtue of such employment, receive and take into his possession any chattel, money or valuable security, which is or may be made the subject of larceny, for or in the name, or on account of his master, or employer, and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant or other person in his employ, and shall be punished as is provided in cases of larceny of like property.(v)

XLIX. Larceny by bailee.

259. If any person, being a bailee (w) of any property, shall fraudulently take or convert the same to his own use, or to the use of any other person, except the Larceny by bailee. owner thereof, although he shall not break bulk or otherwise determine the bailment, he shall be guilty of larceny, and punished as is provided in cases of larceny of like property.(x)

L. Lewdness.

260. If any person shall commit open lewdness, or any notorious act of public indecency, tending to debauch the morals or manners of the people, such person 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 one year, or both, or either, at the discretion of the court. (y)

LI. Libels.

261. If any person shall write, print, publish or exhibit any malicious or defamatory libel, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt or ridicule, such person shall be guilty of a misdemeanor, (2) and on convic