P. L. 355.

Treason defined and punished.

31 March 1860 § 1. them aid and comfort(v) within the state or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses. (w) to the same overt act of the treason whereof he shall stand indicted, such person shall, on conviction, be adjudged guilty of treason against the commonwealth of Pennsylvania, and be sentenced to pay a fine not exceeding two thousand dollars, and undergo an imprisonment, by separate and solitary confinement at labor, not exceeding twelve years.

Ibid. § 2. Misprision of

treason.

18 April 1861 § 1. P. L. 408.

Aiding the public

enemy.

Ibid. § 2.

Furnishing vessels to the enemy.

31 March 1860 § 35. P. L. 439.

Persons indicted

404. If any person, having knowledge of any of the treasons aforesaid, (x) shall conceal, and not, as soon as may be, disclose and make known the same to the governor or attorney-general of the state, or some one of the judges or justices thereof, such person shall, on conviction, be adjudged guilty of misprision of treason, and shall be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding six years: Provided, always, That nothing herein contained shall authorize the conviction of any husband or wife for concealing any treasons committed by them respectively.

405. If any person or persons belonging to or residing within this state, and, under the protection of its laws, shall take a commission or commissions from any person, state or states, or other the enemies of this state, or of the United States of America, or who shall levy war against this state or government thereof, or knowingly and willingly shall aid or assist any enemies in open war against this state or the United States, by joining their armies, or by enlisting, or procuring or persuading others to enlist for that purpose, or by furnishing such enemies with arms or ammunition, or any other articles for their aid and comfort, (y) or by carrying on a traitorous correspondence with them, or shall form, or be in anywise concerned in forming, any combination, or plot or conspiracy for betraying this state, or the United States of America, into the hands or power of any foreign enemy, or any organized or pretended government engaged in resisting the laws of the United States, or shall give or send any intelligence to the enemies of this state, or of the United States of America, or shall, with intent to oppose, prevent or subvert the government of this state, or of the United States, endeavor to persuade any person or persons from entering the service of this state or of the United States, or from joining any volunteer company or association of this state about being mustered into service, or shall use any threats or persuasions, or offer any bribe, or hold out any hope of reward, with like intent, to induce any person or persons to abandon said service, or withdraw from any volunteer company or association already organized under the laws of this commonwealth, for that purpose; every person so offending and being legally convicted thereof, shall be guilty of a high misdemeanor, and shall be sentenced to undergo solitary imprisonment in the penitentiary, at hard labor, for a term not exceeding ten years, and be fined in a sum not exceeding five thousand dollars, or both, at the discretion of the court: Provided, That this act shall not prohibit any citizen from taking or receiving civil commissions for the acknowledgment of deeds and other instruments of writing.

406. If any person or persons within this commonwealth, shall sell, build, furnish, construct, alter or fit out, or shall aid or assist in selling, building, constructing, altering or fitting out any vessel or vessels, for the purpose of making war or privateering, or other purpose, to be used in the service of any person or parties whatever, to make war on the United States of America, or to resist by force or otherwise the execution of the laws of the United States, such person or persons shall be guilty of a misdemeanor, and on conviction thereof, shall be sentenced to undergo solitary imprisonment, in the penitentiary, at hard labor, not exceeding ten years, and be fined in a sum not exceeding ten thousand dollars, or both, at the discretion of the court.

407. Every person indicted for treason shall have a copy of the indictment and a list of the jury and the witnesses to be produced on the trial for proving for treason to have such indictment, mentioning the names and places of abode of such jurors and copy of indictment. witnesses, delivered to him, three whole days before the trial.

31 March 1860 § 77. P. L. 402.

Petit treason abolished.

408. 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.

of war. Ex parte Bollman, 4 Cranch 75. United States v. Hanway, 2 Wall. Jr. C. C. 136, 140, 4 Am. L. J. 83. So, no man can be convicted of treason who was not present when the war was levied. 2 Burr's Trial 401, 439. See Whart. C. L. § 2719-36. And for forms of indictment, see Whart. Prec. § 1117-18.

(v) Delivering up prisoners and deserters to the enemy is treason within this clause. United States v. Hodges, 2 Wheeler's Cr. Cas. 477. And so is the carrying of provisions towards the enemy, with intent to supply him, though that intention should be defeated. United States v. Pryor, 3 W. C. C. 234. Whart. Cr. L. § 2737. See The Fanny, Hopk. Dec.

92-3. For forms of indictment, see Whart. Prec. § 1119-20.

(w) This refers to the proofs on the trial, and not to the preliminary hearing before the committing magistrate, or the proceeding before the grand jury. United States v. Hanway, 2 Wall. Jr. C. C. 138. 1 Burr's Trial 196. United States v. Greiner, 4 Phila. 396. But see Fries's Trial 14. Whart. St. Tr. 480. (2) That is, by any person owing allegiance to the commonwealth of Pennsylvania. United States v. Wiltberger, 5 Wheat. 97.

(y) See United States v. Greathouse, 2 Abb. U. S. 364.

LXXXIX. Witnesses.

P. L. 34.

409. If any person who shall have been required by virtue of any writ of sub- 24 Feb. 1870 § 1. poena or other legal process, to attend and testify in any prosecution for forgery, perjury or felony, before any criminal court, judge, justice or other judicial tribunal Absconding witin this commonwealth, or who may have been recognized or held to bail to attend nesses. as a witness on behalf of the commonwealth or defendant, before any court having jurisdiction, to testify in any prosecution as aforesaid, shall unlawfully and wilfully (depart) from this commonwealth, or from the jurisdiction of such court, and with intent to defeat the ends of public justice(z) shall abscond, elope or conceal himself, and refuse to appear as required by said subpoena or other legal process or recognizance of bail, (such person) shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding two thousand dollars, or undergo an imprisonment not exceeding two years, or both, or either, at the discretion of the court.

P. L. 25.

legislative com

410. Any person or persons who shall wilfully neglect or refuse to appear and 14 March 1872 § 1. testify before any committee of either branch of the legislature of this state, or before any joint committee thereof, after he, she or they shall have been duly Refusal to appear served with a subpoena to so appear, and any person or persons who is, or shall be and testify before in contempt, by reason of any such neglect or refusal so to appear and testify, or mittees. either, shall be held and deemed to be guilty of a misdemeanor, and on conviction thereof, shall be punished by imprisonment not exceeding six months, and by fine not exceeding one thousand dollars, or either, at the discretion of the courts trying the same.

P. L. 387.

411. If any person shall unlawfully dissuade, hinder, prevent or attempt to dis- 31 March 1860 § 11. suade, hinder or prevent any witness from attending and testifying, who may have been required to attend and testify, either before any committee of the legislature Dissuading a witof this state, or before any civil or criminal court, judge, justice or other judicial ness from testifying. tribunal thereof, by virtue of any writ of subpoena or other legal process, or who may have been recognized to attend as a witness on behalf of the commonwealth, or of any defendant, before any court having jurisdiction, to testify in any case depending, or about to be tried in such court, any person so offending shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding one year.(a)

cases.

P. L. 439.

412. No witness in any case who enters his or her recognizance, in such sum as 31 March 1860 § 56. the magistrate may demand, to appear and testify in such prosecutions as require his testimony, shall be committed to prison by the judge, alderman or magistrate Witnesses not to before whom any criminal charge may be preferred: Provided, however, That in be imprisoned, exall cases triable in the oyer and terminer, where a positive oath is made, reduced cept in certain to writing and signed by the deponent, setting forth sufficient reasons or facts to induce the firm belief on the part of the judge, magistrate or alderman, that any witness will abscond, elope or refuse to appear upon the trial, that then and in such case, the judge, magistrate or alderman may exact bail of said witness to testify.

XC. Construction of penal code.

413. In all cases where a remedy is provided, or duty enjoined, or anything 31 March 1860 § 183. directed to be done by any act or acts of assembly of this commonwealth, the direc- P. L. 426. tions of the said acts shall be strictly pursued; and no penalty shall be inflicted, or Penal acts to be anything done agreeably to the provisions of the common law in such cases, further strictly pursued. than shall be necessary for carrying such act or acts into effect.(b)

414. Wherever anything is forbidden or directed by the provisions of this code, by using the general terms, any one, any person, the person, every person and such person, or the relative pronoun he, referring to such general term, the same prohibition or direction, if the contrary be not expressed, is extended to more persons than one, and to females as well as males, doing or omitting the same act.(c)

(z) The essence of the crime consists in the intent to defeat the ends of public justice. Commonwealth v. Phillips, 29 L. I. 268.

(a) The dissuading, hindering or preventing a witness from testifying in a criminal court, is now an indictable offence, punishable at common law with fine and imprisonment. The importance of affording full and free scope to legislative investigation, and of protecting it from any practices which may tend to limit its extent and effect, have induced the commissioners to place witnesses in such investigations on the same footing as witnesses for the commonwealth in criminal courts. The entire section is new. Report on the Penal Code 13.

Ibid. § 184.

Meaning of general

terms.

(b) This section is taken from the 13th section of the act of 21 March 1806, 4 Sm. 332. Report on the Penal Code 38. See Rees v. Emerick, 6 S. & R. 289. Kelly v. Commonwealth, 11 Ibid. 345. Commonwealth v. Evans, 13 Ibid. 426. Mevay v. Edmiston, 1 R. 457. Hellings v. Commonwealth, 5 Ibid. 64. Commonwealth v. Edwards, 1 Ash. 46. Commonwealth v. Van Sickle, Bright. 69. Commonwealth v. Jeandell, 7 Am. L. Reg. 620.

(c) This section explains the meanings of general terms which have been used for the sake of brevity. Report on the Penal Code 39.

CRIMINAL PROCEDURE.

See CRIMES; ERRORS AND APPEALS; EVIDENCE; JUSTICES OF THE PEACE; LIMITATION OF ACTIONS; LUNATICS AND HABITUAL DRUNKARDS; QUARTER SESSIONS AND OYER AND TERMINER.

P. L. 427.

1. The judges of the supreme court, of the court of oyer and terminer and jail 31 March 1860 § 1. delivery, of the courts of quarter sessions, or any of them, shall and may direct their writs and precepts to the sheriffs and coroners of the several counties within Warrants of arrest, this commonwealth, when need shall be, to take persons indicted for felonies, or &c. other offences, before them, who may dwell, remove or be received into another county; and it shall and may be lawful to and for the said judges, or any of them, Subpoenas. to issue subpoenas into any county of the commonwealth, for summoning and bringing any person to give evidence in any matter or cause before them, or any of them, and to compel obedience to such writs, precepts or subpoenas, by attachment or otherwise, and under such pains and penalties as other writs or subpoenas are or ought by law to be granted and awarded; (d) and that it shall be lawful for said judges, or any of them, if they see fit to direct such writ, precept, summons, subpoena or attachments, to be executed by the sheriff of the county in which the same is awarded, which said writ, precept, summons or subpoena, shall be the sufficient warrant of such sheriff for executing the same throughout this commonwealth, as fully and effectually as if directed to and executed by the sheriff of the proper county where issued: Provided, That the reasonable expenses of executing such Expenses. process, when issued on behalf of the commonwealth, shall be paid out of the funds of the county where issued; and the expenses of removing any person charged with having committed an offence in one county into another county, or of transporting any person charged with having committed any offence in this state from another state into this state for trial, or for conveying any person after conviction, to the penitentiary, shall be paid out of the treasury of the county where the offence is charged to have been committed.(e)

Ibid. § 2.

Escapes into

2. Where any person charged with having committed any felony(g) in any city or county of this commonwealth, shall go or escape into any other county thereof, it shall and may be lawful for the president, or any judge of the court of common another county. pleas in the county where the said person may be found, to issue his warrant, authorizing and requiring the sheriff of the said county, to take the said person and conduct him to the proper county, where the said felony is alleged to have been committed; (h) the expenses of which shall be paid to the said sheriff by the county to which the said person is conducted.(i)

3. In case any person, against whom a warrant may be issued by any judge or alderman of any city, or justice of the peace of any county in this commonwealth, for any offence there committed, shall escape, go into, reside or be in any other city or county out of the jurisdiction of the judge, alderman, justice or justices of the city or county granting such warrant as aforesaid, it shall and may be lawful for, and it is hereby declared to be the duty of any alderman, justice or justices of the city or county where such person shall escape, go into, reside or be, upon proof being made, upon oath or affirmation, of the handwriting of the judge, alderman, justice or justices granting such warrant, to indorse his or their name or names on such warrant, which shall be sufficient authority to the person or persons bringing such warrant, and to all other persons to whom such warrant was originally directed, to execute the same in such other city or county, out of the jurisdiction of the alderman, justice or justices, granting such warrant as aforesaid, and to apprehend and carry such offender before the alderman, justice or justices

(d) Justices of the peace were empowered, by the 8th section of the act of 22 May 1722, to issue subpenas and other warrants, into any county or place, within the province, for summoning or bringing any person or persons to give evidence in and upon any matter or cause whatsoever, examinable or triable by or before them, under such pains or penalties as subpenas or warrants of that kind usually are or ought by law to be granted or awarded. 1 Sm. 138. This section is one of those repealed, as to criminal proceedings, by the act of 1860, § 79. This would appear to take away the power of justices to issue subpoenas and attachments into other counties.

(e) This section is composed of the 8th section of the act of 22 May 1722, 1 Sm. 138; of the 14th section of the act of 23 September 1791, 3 Sm. 43; and of the 2d section of the act of 25 April 1846, P. L. 466. It is not proposed to repeal all the 8th section of the act

Ibid. § 3.

Backing warrants.

of 1722, because part of it equally applies to civil as well as criminal proceedings. Report on the Penal Code 39. The county is not liable for the expenses incurred in an unsuccessful attempt to arrest à fugitive from justice who has taken refuge in another state. Andrus v. Warren County, 32 P. S. 540.

(g) This does not extend to misdemeanors; a fugitive charged with having committed a misdemeanor in another county, can only be arrested under the provisions of the succeeding section. Boyd's Case, 1 Gr.

218.

(h) On habeas corpus, the only questions that can be raised are, as to the identity of the prisoner, and the regularity of the process. Commonwealth v. Taylor, 11 Phila. 386.

(i) This section is taken from the 3d section of the act of 4 April 1807, 4 Sm. 393. Report on the Penal Code 39.

31 March 1860 § 3. who indorse such warrant, or some other alderman, justice or justices of such

Bail.

P. L. 427.

Removal.

Ibid. § 4.

Magistrates backing such warrants

other city and county where such warrant was indorsed. And in case the offence for which such offender shall be so apprehended, shall be bailable in law by an alderman or justice of the peace, and such offender shall be willing and ready to give bail for his appearance at the next court of general jail delivery or quarter sessions, to be held in and for the city and county where the offence was committed, such alderman, justice or justices shall and may take such bail for his appearance, in the same manner as the alderman or justice of the peace of the proper city or county might have done; and the said alderman, justice or justices of the peace of such other city or county so taking bail, shall deliver or transmit such recognizance and other proceeding to the clerk of the court of general jail delivery or quarter sessions, where such offender is required to appear by virtue of such recognizance; and such recognizance and other proceedings shall be as good and effectual in law, as if the same had been entered into, taken or acknowledged in the proper county where the offence was committed, and the same proceedings shall be had therein. And in case the offence for which such offender shall be apprehended in any other city or county, shall not be bailable in law by an alderman or justice of the peace, or such offender shall not give bail for his appearance at the proper court having cognizance of his crime, to the satisfaction of the alderman or justice before whom he shall be brought, then the constable or other person so apprehending such offender, shall carry and convey him before one of the aldermen or justices of the peace of the proper city or county where such offence was committed, there to be dealt with according to law.(k)

4. No action of trespass or false imprisonment, or information or indictment, shall be brought, sued, commenced, exhibited or prosecuted by any person, against the alderman, justice or justices who shall indorse such warrant, for or by reason of to be indemnified. his or their indorsing the same; but such person shall be at liberty to bring or prosecute his or their action or suit against the alderman or justice who originally granted the warrant.(1)

31 March 1860 § 7. P. L. 427.

Right to bail.

24 Feb. 1870 § 1. P. L. 227.

Power to take recognizances.

30 March 1821 § 1. 7 Sm. 426.

II. Bail.

5. In all cases, the party accused, on oath or affirmation, of any crime or misdemeanor against the laws, shall be admitted to bail by one or more sufficient sureties, to be taken before any judge, justice, mayor, recorder or alderman where the offence charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth :(m) Provided also, That persons accused as aforesaid of murder or manslaughter, shall only be admitted to bail by the supreme court or one of the judges thereof, or a president or associate law judge of a court of common pleas: persons accused, as aforesaid, of arson, rape, mayhem, sodomy, buggery, robbery or burglary, shall only be bailable by the supreme court, the court of common pleas, or any of the judges thereof, or a mayor or recorder of a city.(n)

6. When any one is arrested on a warrant or bail-piece in any criminal case in which a justice of the peace would, by existing laws, be allowed to take recognizance of bail for his appearance to answer the offence or crime complained of, the officer or person making the arrest may take the accused before a justice and have him released on the requisite security being given; and his return, when properly made, shall exonerate him from further liability.(0)

7. It shall be the duty of every justice of the peace of the county, or alderman of the city of Philadelphia, before whom any recognizance of bail or surety in any How recognizances criminal or supposed criminal case shall be taken, to set down accurately and at large, in a docket or record to be kept for that purpose, the name, place of abode, particularly describing the same, and the occupation or business of such recognizor

to be taken in Philadelphia.

(k) A warrant issued by a justice of the peace in one county, and indorsed by a justice of another county, charging a misdemeanor to have been committed in the county whence the warrant issued, will not justify the detention of the offender in the jail of the county where the warrant was indorsed. Boyd's Case, 1 Gr. 218.

(1) The 3d and 4th sections are taken from the act of 16 April 1827, 9 Sm. 424. Report on the Penal Code 39.

(m) A justice may take bail, after commitment for trial. Moore v. Commonwealth, 6 W. & S. 314. Case of Aldermen, 2 Pars. 458. And see Steel v. Commonwealth, 7 W. 454. Commonwealth v. Holloway, 5 Binn. 512. Respublica v. Jacob, 1 Sm. 57 n. A recognizance taken by a justice, to answer the charge of arson, is coram non judice, and void. Commonwealth v. Phillips, 2 U. S. Law Mag. 316. A prisoner on trial for a capital offence, cannot be admitted to bail, during the adjournment between the daily sessions of the court. Commonwealth v. Rusk, 7 W. N. C. 486. A defendant will not be admitted to bail where it

appears that the killing was done in a riot, by a body of men who had a common understanding that they should resist all who opposed them even to the extent of taking life if necessary, and the defendant was present upon the ground, giving the rioters encouragement. Commonwealth v. O'Donnell, 12 C. C. 142.

(n) This section is a consolidation of the first clause of the act of 4705, 1 Sm. 56; and the first section of the act of 30 April 1832, P. L. 388. Report on the Penal Code 39.

(0) The title of this act refers only to Crawford county, but the enactment is general. The 3d section of the act 13 April 1867, P. L. 1232, relating to the jurisdiction of justices of the peace in Erie county, provides, that in all cases of arrest, upon warrant, of any person charged with any crime of a grade of which the quarter sessions has jurisdiction, the defendant, upon the preliminary hearing before the magistrate, may subpoena and produce and examine witnesses in his or her behalf. This section is not, in terms, restricted to Erie county: quære? whether it is a general law?