P. L. 81. 316. If an affidavit be made and filed before any magistrate, before whom com- 10 June 1885 § 1. plaint has been made of the commission of either of the crimes provided against in the preceding sections, setting forth that the affiant has reason to believe, and does Warrant to issue. believe, that the person charged in such complaint has, upon his person or at any other place named in said affidavit, any opium device, apparatus or instrument, the discovery of which might lead to establish the truth of such charge, the said magistrate shall, by his warrant, command the officer who is authorized to arrest the person so charged, to make diligent search for such opium device, apparatus Power and duty of or instrument, and if found, to bring the same before such magistrate, and the officer. officer so seizing shall deliver the same to the magistrate before whom he takes the prisoner, who shall retain possession and be responsible therefor, until the discharge, commitment or letting to bail of the person so charged, after which such Power and duty of officer shall retain such opium device, apparatus or instrument, subject to the magistrate. order of the court before which such offender may be required to appear, until his discharge or conviction, and in case of the conviction of such person, the opium device, apparatus or instrument shall, by the direction of the court, be destroyed. 317. It shall and may be lawful for any sheriff, constable or other officer of justice, to seize upon, secure and remove any opium device, apparatus or instru- Officers may seize ment of any kind, character or description whatsoever used and employed for the apparatus. purposes of the unlawful smoking of opium, or of the unlawful use of opium as aforesaid, and to arrest, with or without warrant, any person using or employing And arrest, with or the same, and the said court, upon hearing the parties if they should appear, if without warrant. satisfied that such opium device, apparatus or instrument was employed and used for the purpose of the unlawful smoking of opium, or of the unlawful use of opium Ibid. as aforesaid, shall adjudge the same forfeited, and order it to be publicly destroyed, Destruction of apand at the same time order reasonable costs and charges to the seizing officer, to be paratus. paid by the owner or possessor of such opium device, apparatus or instrument, or in case of his default, or in case he cannot be found, to be paid as costs are now by law paid on indictment, and such adjudication shall be exclusive evidence to establish the legality of such seizure in any court of this commonwealth. Ibid. Replevin not to 318. In any case in which the question of its legality shall arise, no writ of replevin shall issue for any opium device, apparatus or instrument seized as aforesaid, nor shall any action be instituted for, or on account of, such seizure, until issue. the court shall have first adjudicated upon the premises, but such writ or action shall forthwith, on motion, be quashed and abated by the court in which it shall be sued or brought: Provided, That this act shall not apply to druggists or phy- Exception. sicians, or others engaged in the legitimate use or sale of opium. LXIII. Oysters and clams. 4 May 1871 § 2. P. L. 250. 319. It shall be unlawful for any person or persons, not residents of this commonwealth, to bring into this state, for purposes of sale, or to vend or sell, or expose for sale, within this commonwealth, any clams or oysters, without first having Non-residents not obtained a license therefor, except such person or persons as have a store, ware- to sell without house or other principal place of business within the state, for which they have paid a tax or license to this commonwealth under existing laws. license. Ibid. § 3. Licenses, how 320. The license provided for in the second section of this act shall be granted by the treasurer of the city or county in which such clams or oysters are to be sold or exposed for sale, and shall be and continue for one year from the date granted. on which it may be issued; and for such license the applicant shall pay to the said city or county treasurer the sum of five hundred dollars, for the use of the commonwealth. Ibid. § 4. 321. If any person or persons, not residents in this commonwealth, nor having a store or warehouse or other place of business within the same, and not having a Penalty for selling license as provided in the second and third sections of this act, shall bring into this without license. state, for the purpose of sale, or shall vend or sell or expose for sale, within this commonwealth, any clams or oysters, such person or persons so offending shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine of not less than fifty, nor exceeding three hundred dollars, or undergo an imprisonment, not exceeding six months, or both, at the discretion of the court. Ibid. § 5. 322. It shall be unlawful for any person or persons to sell unopened clams or oysters, within the city of Philadelphia, in any other way than by count or tale; To be sold by and the same shall be counted at the time and place of sale and before delivery; count. and any person or persons offending against this section shall be guilty of a misde- Penalty for violameanor, and upon conviction thereof, shall be sentenced to pay a fine of not less tion. than twenty-five dollars, and not exceeding one hundred dollars, or undergo an imprisonment, not exceeding six months, or both, at the discretion of the court. (v) P. L. 46. 323. All the fines made payable by the first, fourth and fifth sections of the act, 2 May 1879 § 1. entitled "An act to regulate the sale of clams and oysters," approved May 4th, 1871, and the supplement thereto, approved April 10th, 1873, shall be payable to (v) The act 10 April 1873, P. L. 69, forbidding the sale of oysters in the summer months, was repealed by the act 2 June 1891, P. L. 169. 2 May 1879 § 1. P. L. 46. Appropriation and collection of fines. 8 June 1885. P. L. 60. property or use of name by a copartner. the guardians of the poor of the city or county in which the offence is committed; and the said fine shall be collected as penalties of like amount are now collected, upon complaint before any magistrate or justice of the peace. LXIV. Partnership. 324. If any member of a co-partnership, corporation or association, without the consent of his associate or associates in such co-partnership, corporation or associaFraudulent appro- tion, wilfully and fraudulently converts to his own use, or takes, makes way with, priation of firin or secretes, with intent to convert to his own use, or to the use of another, or withholds, or appropriates or otherwise fraudulently applies or makes use of any money, goods, rights in action, or other valuable securities or effects belonging to such co-partnership, corporation or association, and which may have come into his possession or under his care, (w) or who shall wilfully or fraudulently use or pledge the name of the partnership, corporation or association for any other purpose than the bonâ fide use of said firm, co-partnership, corporation or association, he shall be guilty of a misdemeanor, and shall, upon conviction thereof, be sentenced to an imprisonment, not exceeding two years, or to a fine, not exceeding one thousand dollars, or both, or either, at the discretion of the court. Punishment. 4 June 1885. P. L. 74. money. Omission to make true entry in firm books. 325. If any person, being a member of any co-partnership, firm or association, shall, as such, receive or possess himself of any money or other property of such Conversion of firm co-partnership, firm or association, otherwise than in payment to him of a just debt or demand, and shall, with intent to defraud, omit to make or to cause or direct to be made a full and true entry thereof in the books and accounts of such co-partnership, firm or association, or shall, with intent to defraud, destroy, alter, mutilate or falsify any of the books, papers or writings, or securities, belonging to any such co-partnership, firm or association of which he is a member, or shall or concur in making any false entry or material omission in any book of accounts or other documents, he shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding one thousand dollars, or undergo an imprisonment, not exceeding two years, or either, or both, at the discretion of the Destruction, alteration, mutilation, or falsifying of firm books. Penalty. 31 March 1860 § 14. P. L. 388. Perjury and subornation. court. LXV. Perjury. 326. If any person shall wilfully and corruptly commit wilful and corrupt perjury,(x) or shall by any means procure or suborn any person to commit wilful and corrupt perjury, on his or her oath or affirmation legally administered, either before any committee of the legislature of this commonwealth, or in any judicial proceeding, matter or cause which may be depending in any of the courts thereof, or before any judge, justice, mayor, recorder, alderman or other magistrate, or before any arbitrator, prothonotary, clerk, notary-public, commissioner or auditor appointed by any court of this commonwealth, or in any deposition taken pursuant to the laws of this commonwealth, or the rules, orders and directions of any court, arbitrator or judge thereof, or preparatory and for the purpose of obtaining any rule or order of court, or of a judge or arbitrator; or if any person in taking any other oath or affirmation required, or that may hereafter be required by any act of assembly of this commonwealth, shall be guilty of wilfully and corruptly making a false oath or affirmation; or if any person shall procure or suborn any other person to make any such false oath or affirmation; 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, not exceeding seven years, and shall be for ever disqualified from being a witness in any matter in controversy.(y) (w) The indictment must set forth the names of the defendant's co-partners. Commonwealth v. Teeter, 1 Lack. Jur. 28*. (r) To sustain a prosecution for perjury, it must appear that the oath was false, the intention wilful, the party lawfully sworn, the assertion absolute, and the falsehood material to the matter in question. Commonwealth v. Kuntz, 2 Clark 375. Shaffer v. Kintzer, 1 Binn. 542. Perjury cannot be predicated on an extra-judicial oath. Linn v. Commonwealth, 96 P. S. 285. Commonwealth v. Huntzinger, 2 Leg. Rec. R. 181. It is perjury, where one swears wilfully, absolutely and falsely, to a matter which he believes, if he has no probable cause for believing. Commonwealth v. Cornish, 6 Binn. 249. Steinman v. Me Williams, 6 P. S. 170. A prosecution for perjury alleged to have been committed in an affidavit of defence in a civil action, cannot be instituted until after final judgment therein. Commonwealth v. Dickinson, 3 Clark 265. But though the party may not be arrested or held to bail, pending the civil suit, the district attorney may have leave to submit a bill of indictment to the grand jury, to save the bar of the statute of limitations. Commonwealth v. Heintzer, 13 W. N. C. 129. But see Ex parte Felts, 1 Kulp 468. Upon an indictment for making a false affidavit to support an application for a land warrant, that the lands were unimproved, the affiant could not be convicted where it appeared that the affidavit was made upon the advice of counsel, that under the act 23 April 1889, P. L. 46, the land was unimproved. Commonwealth v. Clark, 157 P. S. 257. (y) This section is an extension of the first section of the act of 3 April 1804, 4 Sm. 200; its object is to put at rest the nice distinctions that have been raised, whether perjury can only be committed in a court of justice or in the course of justice, or whether a given oath has been taken in a judicial proceeding properly so called, or otherwise. These captious objections are removed by defining precisely the kind of oath, which, if false, shall constitute perjury. The extension of the crime to any person taking an oath required by an act of assembly, who shall be guilty of making a false oath, will supersede much past, and will obviate the necessity of any future, legislation on the subject. The extension of the crime to the 327. In every indictment for wilful and corrupt perjury, it shall be sufficient to 31 March 1860 § 21. set forth the substance of the offence charged, and in what court, or before whom P. L. 439. the oath or affirmation was taken, averring such court or person or body to have sufficiency of incompetent authority to administer the same, together with the proper averment, dictment. to falsify the matter wherein the perjury is assigned, without setting forth the information, indictment, declaration or part of any record or proceeding, other than as aforesaid, and without setting forth the commission or authority of the court, or person or body before whom the perjury was committed. Ibid. § 22. Indictment for 328. In every indictment for subornation of perjury, or for corrupt bargaining or contracting with others to commit wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence, without setting forth the informa- subornation of tion, indictment, declaration or part of any record or proceedings, and without perjury. setting forth the commission or authority of the court, or person or body before whom the perjury was committed, or was agreed or promised to be committed. LXVI. Personation. 329. If any person shall fraudulently and corruptly acknowledge, or procure to 31 March 1860 § 16. be acknowledged, any deed, or any writing authorized to be acknowledged, or any P. L. 387. recognizance or judgment, in the name of any other person not privy thereto, or False personation. consenting to the same, the person so offending shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years.(z) LXVII. Poisons. (a) 330. No apothecary, druggist or other person, shall sell or dispose of, by retail, 31 March 1860 § 70. any morphia, strychnia, arsenic, prussic acid or corrosive sublimate, except upon P. L. 401. the prescription of a physician, or on the personal application of some respectable Selling poisons. inhabitant of full age, of the town or place in which such sale shall be made; and in all cases of such sale, the word "poison" shall be carefully and legibly marked or placed upon the label, package, bottle or other vessel or thing in which such poison is contained; (b) and when sold or disposed of, otherwise than under the prescription of a physician, the apothecary, druggist or other person selling or disposing of the same, shall note in a register, kept for that purpose, the name and residence of the person to whom such sale was made, the quantity sold, and the date of such sale; any person offending herein, shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine, not exceeding fifty dollars. (c) P. L. 189. The word Ibid. 331. A poison in the meaning of this act shall be any drug, chemical or prepa- 24 May 1887 § 10. ration, which, according to standard works on medicine or materia medica, is liable to be destructive to adult human life, in quantities of six grains or less. 332. No person shall sell at retail any poisons, except as herein provided, "poison" defined. without affixing to the bottle, box, vessel or package containing the same, a label, printed or plainly written, containing the name of the article, the word "poison," Bottle, box, &c., and the name and place of business of the seller, nor shall he deliver poison to containing poison, any person without satisfying himself that such poison is to be used for legitimate purposes. to be labelled. Ibid. 333. It shall be the further duty of any one selling or dispensing poisons, which are known to be destructive to adult human life, in quantities of five grains or Sales of certain less, before delivering them, to enter in a book kept for this purpose the name of poisons to be registhe seller, the name and residence of the buyer, the name of the article, quantity tered in a book. sold or disposed of, and the purpose for which it is said to be intended, which Book to be kept for book of registry shall be preserved for at least two years, and shall at all times be open to the inspection of the coroner or courts of the county in which the same may be kept. two years and be open to inspection. Ibid. 334. The provisions of this section shall not apply to the dispensing of physicians' prescriptions, specifying poisonous articles, nor to the sale to agriculturalists Certain poisons of such articles as are commonly used by them as insecticides. Any person fail- may be sold withing to comply with the provisions of this section shall be deemed guilty of a mis- out a record. demeanor, and upon conviction thereof shall be punished by a fine of not less Insecticides. than five nor more than fifty dollars for each and every offence. making a false and corrupt oath before a legislative committee, is taken from the 2d section of the act of 23 June 1842, P. L. 301. The punishment of this crime is also provided for in the 4th section of the act of 23 April 1829, 10 Sm. 443. Report on the Penal Code 14. Penalty. nia is sold on the prescription of a physician. Commonwealth v. Sheriff, 41 L. I. 366. (c) This section is entirely new; its object is to prevent mistakes in the sale of noxious drugs, to throw impediments in the way of malicious and wicked persons obtaining them for murderous purposes, and to facilitate the detection of such persons, when their malignant purpose has been accomplished. The instances of murder by poison have recently increased to a frightful extent, both in Europe and this country, and such legislation is demanded for the sup(b) This does not apply to a case in which strych- pression of this crime. Report on the Penal Code 22. See tit. "Poisons." (z) This provision is new, although such false personation is an offence at common law. The necessity for such a statutory provision seems manifest. Report on the Penal Code 15. (a) See supra sub-tit. "Assault." 23 May 1878 § 1. P. L. 117. Exposure of poisons prohibited. Ibid. § 2. Penalty therefor. 16 March 1866 § 1. P. L. 210. 335. No person shall put or expose in any public place or highway, nor on his own lands, outside of his buildings, nor on the lands of any other person, any poison, or admixture thereof, with the intent that the same shall be taken or swallowed by any bird, fowl or wild animal.(d) 336. Any person violating this act shall, on conviction before any alderman or justice of the peace, be subjected to a fine of twenty dollars to the use of the commonwealth. LXVIII. Prize-fighting. 337. Prize-fights and boxing-matches are hereby declared to be unlawful, within the counties of Pike, Schuylkill, Luzerne, Erie and Montgomery, and any person Punishment in cer- engaging or participating therein, either as principal, second or bystander, shall be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to undergo an imprisonment, not exceeding one year, and pay a fine not exceeding five hundred dollars, or either, at the discretion of the court. tain counties. Ibid. § 2. Sheriff's to summon the posse commitatus. Ibid. § 3. 338. It shall be the duty of the sheriff of said county, when informed that a prize-fight or boxing-match is about to take place, within the said county, to call out such force as may be necessary to prevent the same; and for that purpose he shall have power to summon, verbally, every able-bodied man, between the age of eighteen years and forty-five, to attend him forthwith, and assist in maintaining the peace. 339. Any person so summoned and not attending forthwith, as above required, shall be guilty of a misdemeanor, and upon conviction thereof, shall forfeit and lecting to attend. pay a fine of one hundred dollars, or in default of payment thereof, undergo an imprisonment in the county jail, not exceeding six months. Penalty for neg 340. Whosoever shall engage or participate in any prize-fight, within this commonwealth, or any fight or pugilistic contest, on the result of which any money or valuable thing is bet or wagered, shall be guilty of a misdemeanor, and on conviction thereof, shall be fined in a sum not exceeding one thousand dollars, and imprisoned in the penitentiary or the jail of the proper county, for a period not exceeding two years; and every person being present at such fight, or laying any bet or wager on the result thereof, whether present or not, shall be considered a participant therein, and as giving encouragement thereto, and may, at the discretion of the court, be punished in like manner. (e) LXIX. Profaneness. 341. If any person of the age of sixteen years or upwards, shall profanely curse or swear by the name of God, Christ Jesus or the Holy Ghost, every person so offending, being thereof convicted, shall forfeit and pay the sum of sixty-seven cents for every (g) such profane curse or oath; and in case he or she shall refuse or neglect to pay the said forfeiture, or goods and chattels cannot be found, whereof to levy the same by distress, he or she shall be committed to the house of correction of the proper county, not exceeding twenty-four hours, for every such offence(h) of which such person shall be convicted. And whosoever of the age of sixteen years or upwards, shall curse or swear by any other name or thing than as aforesaid, and shall be convicted thereof, shall forfeit and pay the sum of forty cents for every such curse or oath; and in case such offender shall neglect or refuse to satisfy such forfeiture, or no goods or chattels can be found, whereof to levy the same by distress, he or she shall be committed to the house of correction of the proper county, not exceeding twelve hours, for every such offence. 342. The justices of the supreme court severally throughout this state, every president of the courts of common pleas within his district, every associate judge of the courts of common pleas, and every justice of the peace within his county, the mayor and aldermen of the city of Philadelphia, and each of them, within the limits of said city, and each burgess of a town corporate, within his borough, are hereby empowered, authorized and required to proceed against and punish all persons offending against this act, and every person who shall profane the Lord's day, or who shall profanely curse or swear, or who shall intoxicate him or herself, as mentioned in the next preceding section of this act; and for that purpose, each of the said justices or magistrates severally may and shall convict such offenders, upon his own view and hearing,(i) or shall issue, if need be, a warrant, summons or capias (according to the circumstances of the case) to bring the body of the person (d) This does not appear to embrace dogs and cats, which are neither "birds, fowls nor wild animals.' Being a highly penal law, it must be taken strictly. (e) See Rex v. Perkins, 4 C. & P. 537. Regina v. Brown, Car. & M. 314. (g) A summary conviction must agree with, and cannot exceed the charge in the information; therefore, where the information charged the defendant with swearing twenty-five oaths, and the conviction and penalty was for twenty-nine oaths, the proceedings were reversed. Commonwealth v. Cummings, 2 Clark 49. Profane swearing on the streets, to be indictable, should not only be heard by citizens, but the manner and occasion of its utterance should be of such an offensive and annoying character as to make it a public and common nuisance. Commonwealth v. Linn, 33 W. N. C. 331. (h) The judgment must ascertain not only the amount of fine inflicted, but also the alternative duration of imprisonment. Commonwealth v. Irwin, 1 Clark 408. (i) See Reid v. Wood, 102 P. S. 312. 3 Sm. 178. accused as aforesaid before him; and the same justices and magistrates respectively 22 April 1794 § 4. shall, in a summary way, inquire into the truth of the accusation, and upon the testimony of one or more credible witnesses, or the confession of the party, shall convict the person who shall be guilty as aforesaid, and thereupon shall proceed to pronounce the forfeiture incurred by the person so convicted, as hereinbefore directed; and if the person so convicted refuse or neglect to satisfy such forfeiture immediately, with costs, or produce goods and chattels whereon to levy the said forfeiture, together with costs, then the said justices or magistrates shall commit the offender, without bail or mainprise, to the house of correction of the county wherein the offence shall be committed, during such time as is hereinbefore directed, there to be fed on bread and water only, and to be kept at hard labor; and if such commitment shall be in any county, wherein no distinct house of correction hath been erected, then the offender shall be committed to the common jail of the county, to be therein fed and kept at hard labor, as aforesaid. And every such conviction may(k) be in the following terms, viz.: "Be it remembered, that on the day Form of convicof- in the year of county, laborer, (or otherwise, as his tion. or her rank, occupation or calling may be,) is convicted before me, being one of the justices of the [or one of the aldermen or burgesses of the city or borough of -] of swearing profane oaths by the name of· A. B., of in the county of (or otherwise, as the offence and case may be,) and I do adjudge him (or her) to forfeit for the same the sum of · cents. Given under my hand and seal the day and year aforesaid." Provided always, That every such prosecution shall be commenced Limitation. within seventy-two hours after the offence shall be committed. (1) Appropriation of 343. One moiety of the forfeitures in money, accruing and becoming due for any Ibid. § 12. offence against this act, shall be paid to the overseers of the poor of the city, borough or township, wherein the offence shall be committed, for the use of the poor penalties. thereof, and the other moiety to the person or persons who shall prosecute and sue for the same; and the inhabitants of such city or other place shall, notwithstanding, be admitted witnesses to testify against any person who shall be prosecuted for any offence by virtue of this act.(m) LXX. Professional thieves. 344. If any person shall be charged on oath or affirmation, before the mayor or 18 March 1862 § 1. police magistrate of the central station of the city of Philadelphia, (n) with being P. L. 115. sional thieves in a professional thief, burglar or pickpocket, and who shall have been arrested by Summary convicthe police authorities at any steamboat-landing, railroad-depot, church, banking tions of profes institution, broker's office, place of public amusement, auction-room, store or Philadelphia. crowded thoroughfare in the city of Philadelphia, and if it shall be proven to the satisfaction of the said mayor, or police magistrate appointed by the mayor for the central station, by sufficient testimony, that he or she was frequenting or attending such place or places for an unlawful purpose, he or she shall be committed by the Imprisonment. said mayor or said police magistrate to the jail of the county of Philadelphia, for a term not exceeding ninety days, there to be kept at hard labor, or in the discretion of the said mayor or police magistrate of said central station, he or she shall be required to enter security for his or her good behavior for a period not exceed- Surety for good ing one year.(0) behavior. 345. Any person who shall or may feel aggrieved at any such act, judgment or Conviction may be determination of the said mayor or police magistrate of said central station, in and reviewed on habeas concerning the execution of this act, may apply to any judge of the court of quarter corpus. sessions for a writ of habeas corpus, and upon return thereof, there shall be a rehearing of the evidence, (p) and the judge may either discharge, modify or confirm the commitment. P. L. 16. 346. The provisions of the first section of an act to authorize the arrest of pro- 16 March 1864 § 1. fessional thieves, burglars, et cetera, in the city of Philadelphia, approved March 13th, 1862, be and the same are hereby extended to authorize the arrest of pro- Extended to other fessional thieves, burglars or pickpockets, at any hotel, restaurant, auction, sale cities. in private residence, passenger-car, or at any other gathering of people, whether few or many, in the cities of Philadelphia, Allegheny, Lancaster, Harrisburg and Pittsburgh. 347. It shall be the duty of the constables, and of the several police constables, (k) See act 17 April 1876, P. L. 29, as to appeals in cases of summary conviction: tit. " 'Summary Convictions." (1) This form of conviction is merely directory. Commonwealth v. Hardy, 1 Ash. 410. (m) The limitation contained in the subsequent part of this section is not applicable to prosecutions under § 2-4. (n) Extended to the borough of Norristown, by act 12 March 1867, P. L. 405. And to the cities of Lancaster, Harrisburg, Pittsburgh and Allegheny, by act 20 March 1863, P. L. 173. And by act 12 April 1867, the jurisdiction is extended to all the magistrates 12 March 1866 § 2. P. L. 182. of the city of Philadelphia. P. L. 1210. And see 21 March 1866, as to the counties of Erie, Crawford, Venango and Warren. P. L. 259. (0) This act is constitutional: the right to trial by jury, secured by the bill of rights, does not interfere with the summary conviction of rogues and vagabonds. Byers v. Commonwealth, 42 P. S. 89. People v. McCarthy, 45 How. Pr. 97. (p) The case is to be reheard upon the evidence addressed before the magistrate. Kennedy's Case, 26 Pitts. L. J. 81. But the act 17 April 1876, P. L. 29, allows an appeal in all cases of summary conviction. See tit. "Summary Convictions." |