P. L. 427. 31 March 1860 § 16. part thereof respectively, or to be used for the making, altering or repairing of any bridge or road, to aver that any such things are the property of such county, city, township or district. Ibid. § 17. Forms of indict ment in cases of forging, stealing, embezzling, &c. Ibid. § 18. Forms in other cases. Ibid. § 19. Intent to defraud 25. In any indictment for forgery, uttering, stealing, embezzling, destroying or concealing, or obtaining by false pretences, any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same, or the value thereof.(1) 26. In all other cases whatsoever in which it shall be necessary to make any averment in any indictment, as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, and in such manner as to sufficiently identify such instrument, without setting out any copy or fac-simile of the whole or any part thereof. 27. It shall be sufficient, in any indictment for forging, uttering, offering, disposing of, or putting off any instrument whatsoever, or for obtaining or attempting to particular persons, obtain any property by false pretences, to allege that the defendant did the act with need not be alleged intent to defraud, without alleging the intent of the defendant to be to defraud any particular person and on the trial of any of the offences in this section mentioned it shall not be necessary to prove any intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged, with an intent to defraud. or proven in certain cases. Ibid. § 20. Indictments for murder and manslaughter. 22 April 1871 § 1. P. L. 244. 28. 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 the defendant did feloniously, wilfully and of his malice aforethought, kill and 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. (m) 29. 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 involuntary man- manslaughter, to charge that the defendant did unlawfully kill and slay the deceased. Indictment for slaughter. 31 March 1860 § 21. P. L. 284. Requisites of in 30. In every indictment for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged, and in what court, and before whom the oath or affirmation was taken, averring such court or person or body to have comdictment for per- petent authority to administer the same, together with the proper averment, to jury. Ibid. § 22. Requisites of indictment for subornation of perjury. Ibid. § 23. Indictment for duelling. Ibid. § 24. and receiving, may be joined. 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. 31. 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 information, indictment, declaration or part of any record or proceedings, and without 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. 32. In cases arising under the laws of this commonwealth for the restraint of the horrid practice of duelling, it shall be sufficient to frame an indictment generally, against either of the principals, for challenging another to fight at deadly weapons, and notwithstanding it may appear on the trial that the defendant only accepted the challenge, it shall be sufficient to convict and render him liable to the penalties of the law; and in like manner an indictment against the seconds may be framed generally, for carrying and delivering a challenge, and proof of the mere act of fighting, and, the defendant being present thereat, shall be sufficient to convict the defendant, upon an indictment so framed and if the duel shall take place within this commonwealth, the mere fact of fighting shall be full and complete evidence of the charges, respectively, of giving or receiving, or of carrying or delivering a challenge, without other proof thereof.(n) 33. In every indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the said property, knowing it to have been Counts for stealing stolen; and in any indictment for feloniously receiving property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing said property; and it shall be lawful for the jury trying the same, to find a verdict of guilty either of stealing the property, or of receiving the same, knowing it to have been stolen ; and if such indictment shall have been preferred and found against two or more (1) See Commonwealth v. Beamish, 81 P. S. 389. (m) An indictment drawn in conformity with the provisions of this section is not in conflict with the constitutional proviso, that "in all criminal prosecutions, the accused shall have a right to be informed of the nature and cause of the accusation against him." Cathcart v. Commonwealth, 37 P. S. 109. (n) This section is taken from the 3d section of the act of 31 March 1806, 4 Sm. 354. Report on the Penal Code 43. P. L. 427. persons, it shall be lawful for the jury who shall try the same, to find all or any of 31 March 1860 § 24. the said persons guilty of either stealing the property or of receiving it, knowing it to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving it, knowing it to have been stolen. (o) Ibid. § 28. indictment. 34. It shall be lawful, in cases of embezzlement by clerks, servants or other persons in the employ of another, to charge in the indictment, and proceed against Distinct acts of an offender for any distinct acts of embezzlement, not exceeding three, which may embezzlement may have been committed by him against the same master or employer, within the be charged in one space of six calendar months, from the first to the last of such acts, and in every such indictment, except where the offence shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed, shall not be proved, or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly.(p) VIII. Arraignment and plea. Ibid. § 25. Issue and trial in 35. In all cases of felony, the prisoner shall be arraigned, and where any person, on being so arraigned, shall plead not guilty, every such person shall be deemed and taken to put himself upon the inquest or country for trial, without any ques- criminal cases. tion being asked of him, how he will be tried, and the inquest shall be charged only to inquire whether he be guilty or not guilty of the crime charged against him, and no more. And wherever a person shall be indicted for treason or felony, the jury impanelled to try such person shall not be charged to inquire concerning his lands, tenements or goods, nor whether he fled for such treason or felony.(9) 7 Jan. 1867 § 4. P. L. 1871. 36. So much of the 24th section of the act to which this is a supplement as requires arraignment in every case of felony, be and the same is hereby repealed; and arraignment shall only be required in cases which are solely triable in the Arraignment of courts of oyer and terminer. prisoners. 37. If any prisoner shall, upon his arraignment for any offence with which he 31 March 1860 § 26. is indicted, stand mute, or not answer directly, or shall peremptorily challenge P. L. 427. above the number of persons summoned as jurors for his trial, to which he is by Prisoners standing law entitled, the plea of not guilty shall be entered for him on the record,(r) the mute. supernumerary challenges shall be disregarded, and the trial shall proceed in the same manner as if he had pleaded not guilty, and for his trial had put himself upon the country.(s) 38. In any plea of autrefois acquit or autrefois convict, it shall be sufficient for any defendant to state, that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment.(t) (0) This section is new, and is intended to remedy difficulties arising from the common-law doctrines in relation to the joinder of offences and joint offenders. At common law, a felony and a misdemeanor, such as burglary and receiving stolen goods, could not be regularly joined; in larceny, counts for receiving were sometimes added, but the practice was regarded as of doubtful legality, until in the cases of Rer v. Galloway, 1 Mood. Cr. Cas. 234, and of Rex v. Madden, 1 Mood. Cr. Cas. 277, it was decided to be erroneous. In Pennsylvania, the uniform practice has been to unite counts for larceny and receiving, but in no other kinds of felonious taking has such joinder been permitted. So, at common law, if two persons are charged with jointly receiving stolen goods, a joint act of receiving must be proved; proof that one received in the absence of the other, and afterwards delivered to him, will not suffice. Rex v. Messingham, 1 Mood. Cr. Cas. 257. The proposed section will obviate these technical difficulties, as it permits a count for receiving to be joined in all indictments for felonious taking, and authorizes the conviction of one or more of several persons, jointly indicted, for felonious taking or receiving, either as principals or receivers, according to their actual guilt. Report on the Penal Code 43. The rule against the joinder of felony and misdemeanor exists now, only where the offences are repugnant in their nature and legal incidents, and the trial and judgment are so incongruous as to deprive the defendant of some legal advantage. Henwood v. Commonwealth, 52 P. S. 424. And see Commonwealth v. Cart, 2 Pitts. 495. Commonwealth Ibid. § 30. v. Gillespie, 7 S. & R. 469. Commonwealth v. Sylvester, Bright. 331. Commonwealth v. Birdsall, 69 P. S. 482. Nicholson v. Commonwealth, 91 Ibid. 390. Commonwealth v. Leisenring, 11 Phila. 389. Commonwealth v. Barger, 2 Law Times (N. S.) 161. (p) The provisions of this section are necessary for preventing the difficulties that may be hereafter experienced in the prosecution of the various fraudulent embezzlements prescribed against by the "act to consolidate, revise and amend the penal laws of this commonwealth," and particularly by the 187th seetions thereof, against such embezzlement by clerks, servants and other persons in the employment of others. Report on the Penal Code 44. See Commonwealth v. Hill, 2 Pears. 432. (q) This section is new, and has been introduced to dispense with the useless forms which prevail in some of our criminal courts, following the ancient practice of the common law. Report on the Penal Code 43. (r) Where a plea of "not guilty" is entered under this section, for a prisoner who stands mute, and there is a trial and judgment, he cannot subsequently assign for error any matters appertaining to the precept, venire, drawing, summoning and returning of jurors, &c.; such case is within the 53d section of this Dyott v. Commonwealth, 5 Wh. 67, 78. act. (8) This section is taken from the 5th section of the act of 23 September 1791, 8 Sm. 40. Report on the Penal Code 44. (t) This section proposes, in favor of the accused, to simplify the pleas of heretofore acquitted, and 31 March 1860 § 42. P. L. 439. 31 March 1860 § 36. P. L. 439. IX. Jury de medietate linguæ. 39. No alien shall, in any criminal case whatsoever, be entitled to a jury de medietate linguæ, or partly of strangers. (u) X. Challenges. 40. On the trial of any indictment for treason or misprision of treason, murder, manslaughter, concealing the death of a bastard child, rape, robbery, burglary, Peremptory chal- sodomy, malicious maiming and arson, the accused shall be at liberty to challenge, lenges. peremptorily, twenty of the jurors; and on the trial of all other indictments the accused shall be at liberty to challenge, peremptorily, four of the jurors.(v) Ibid. § 37. Challenges by the commonwealth. Ibid. § 38. How challenges are to be conducted. Ibid. § 39. How to be determined. Ibid. § 40. Trial of persons jointly indicted, and joint challenges. 41. The commonwealth shall have the right, in all cases, to challenge, peremptorily, four persons;(w) and every peremptory challenge beyond the number allowed by law in any of the said cases, shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made. 42. All challenges in criminal proceedings shall be conducted as follows, to wit, the commonwealth shall challenge one person, and then the defendant shall challenge one person, and so alternately, until all the charges shall be made; but if the commonwealth shall refuse to make any challenge, the defendant shall, nevertheless, have the right to challenge the full number allowed him by law. (x) 43. When a challenge for a cause assigned shall be made in any criminal proceeding, the truth of such cause shall be inquired of and determined by the court.(y) 44. In all cases in which two or more persons are jointly indicted for any offence, it shall be in the discretion of the court to try them jointly or severally,(z) except that in cases of felonious homicide the parties charged shall have the right to demand separate trials;(a) and in all cases of joint trials, the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more. (b) heretofore convicted, and thus relieve them from all technical embarrassments: it is new. Report on the Penal Code 44. See Commonwealth v. Connor, 9 Phila. 591. Commonwealth v. Driesbach, 29 L. I. 333. Smith v. Commonwealth, 14 W. N. C. 40. (u) This section is taken from the 149th section of the act of 14 April 1834, P. L. 368; which has also been left unrepealed, for the same reason. Report on the Penal Code 46. (v) The 36th, 37th, 38th and 39th sections are intended to supply the 152d, 153d, 154th, 155th and 156th sections of the act of 14 April 1834. P. L. 368. The changes therein, in reference to challenges, are, that by the 36th section of this act the number of challenges allowed the accused in treason, is twenty, whereas by the 152d section of the act of 1834, thirty-five challenges are allowed; and that by the 154th section of the act of 1834, the commonwealth is interdicted from challenging, without cause, in any case of felony, whereas, by the 37th section of the present act, the commonwealth is only interdicted from challenging peremptorily in the cases enumerated in the 36th section, to wit, treason, misprision of treason, murder, manslaughter, concealing the death of a bastard child, rape, robbery, burglary, sodomy, malicious maiming and arson; and in all other felonies and misdemeanors, is allowed the same number of challenges as the defendant, to wit, four. The object of thus extending to the commonwealth the right of challenging, in the minor felonies, the same number of jurors as the defendant, arises from the fact, that by the present code a large number of offences, which were misdemeanors at common law, are now made felonies; hence, the excluding of the commonwealth from the right of challenge in any felony, is almost totally to deprive her of the right of challenge. In the practical administration of criminal justice, the right of the commonwealth to challenge four jurors peremptorily, is of the deepest importance; it is not an uncommon thing to find in a panel of jurors, one or more persons pledged to the defendant by personal or social sympathies, or influenced in his favor by worse motives; the right to peremptorily challenge four jurors, is the security of the public against such contingencies. The 39th section of the present act assigns to the court the authority of determining upon the truth and sufficiency of challenges for cause. Report on the Penal Code 45. (w) This provision is not in conflict with the clause in the constitution, which provides "that trial by Com jury shall be as heretofore, and the right thereof shall remain inviolate." Warren v. Commonwealth, 37 P. S. 45. Hartzell v. Commonwealth, 40 Ibid. 462. The commonwealth need not show cause of challenge, until the panel is exhausted. Warren v. Commonwealth, 37 P. S. 45. Hartzell v. Commonwealth, 40 Ibid. 462. Commonwealth v. Joliffe, 7 W. 585. monwealth v. Marrow, 3 Brewst. 402. Commonwealth v. Mayland, 29 L. I. 150. And that, as well in cases of misdemeanor or of felony. Haines v. Commonwealth, 100 P. S. 317. Smith v. Commonwealth, Ibid. 321. Upon the trial of a felony or misdemeanor, the commonwealth may stand aside jurors even after the defendant's right of peremptory challenge has been exhausted; and this, without recalling other jurors which have been stood aside. Commonwealth v. O'Brien, 140 P. S. 555. (a) In cases of misdemeanor, if the commonwealth has four times passed her right to challenge, and the defendant has exhausted all his challenges, the commonwealth cannot challenge; it is otherwise in felonies. Commonwealth v. Frazier, 2 Brewst. 490. If the commonwealth withdraw a challenge, the prisoner cannot cross-examine the juror; he must challenge for himself, and assign his reasons; and if the defendant do not withdraw his challenge, the commonwealth may cross-examine. Commonwealth v. Berger, 3 Brewst. 247. (y) The power to challenge for cause may be exercised at any time before the oath is tendered to the jury. McFadden v. Commonwealth, 23 P. S. 12. It is good cause of challenge, that the juror has conscientious scruples on the subject of capital punishment. Commonwealth v. Lesher, 17 S. & R. 155. Or that he has formed and expressed an opinion upon the evidence in the cause. Irvine v. Kean, 14 S. & R. 292. See Irvine v. Lumberman's Bank, 2 W. & S. 202. Young v. Marine Ins. Co., 1 Cr. C. C. 452. Or that the juror has been subpoenaed as a witness by the prisoner. Commonwealth v. Joliffe, 7 W. 585. Ör that he is a tenant of one of the parties. Harrisburg Bank v. Forster, 8 W. 304. Or that he had grossly misbehaved himself on a former occasion, declaring that he had tried to acquit any one the judge desired to have convicted; and that he was "a Tom Paine man, and would as lief swear on a spelling-book as on the Bible." McFadden v. Commonwealth, 23 P. S. 12. (z) See Commonwealth v. Hughes, 11 Phila. 430. (a) See Shay v. Commonwealth, 36 P. S. 305. (b) This section is new, and is introduced to settle XI. Talesmen. 45. All courts of criminal jurisdiction of this commonwealth shall be and are 31 March 1860 § 41. hereby authorized and required, when occasion shall render the same necessary, (c) P. L. 439. to order a tales de circumstantibus, (d) either for the grand or petit jury, (e) and How tales may be all talesmen shall be liable to the same challenges, fines and penalties as the prin- awarded and juries cipal jurors: Provided, That nothing herein contained shall repeal or alter the summoned. provisions of an act passed the 20th day of April 1858, entitled "An act estab lishing a mode of drawing and selecting jurors in and for the city and county of Philadelphia." (g) XII. Nolle prosequi. 46. No district attorney shall, in any criminal case whatsoever, enter a nolle 31 March 1860 § 29. prosequi, either before or after bill found, without the assent of the proper court in writing first had and obtained.(h) P. L. 427. Consent of court. XIII. Place of trial. 47. The trial of all treason against the commonwealth, committed out of the 31 March 1860 § 43. jurisdiction of the state, shall be in the county where the offender is apprehended, or into which he shall first be brought.(i) P. L. 439. Place of trial for treason. 8 May 1889. P. L. 185. Felonious strik 48. If any person hereafter shall be feloniously stricken, poisoned or receive other cause of death in one county and die of the same stroke, poisoning or other cause of death in another county, then an indictment found therefor by jurors of the county where the person was feloniously stricken, poisoned or received other ing or poisoning in cause of death, shall be as good and effectual in law, as well against the principal one county, and death in another. in such murder as against the accessory thereto, as if the death had occurred in the same county where such indictment shall be found; and the proper courts having jurisdiction of the offence shall proceed upon the same as they might or could do in case such felonious stroke, poisoning, or other cause of death, and the death itself thereby ensuing, had been committed and happened all in one and the same county.(k) a question in criminal practice, which has produced difficulty. At common law, upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. The embarrassments from defect of jurors, resulting from the exercise of this right by numerous defendants jointly indicted, led the courts, at a very early period, to determine that they had the power, against the will of the prisoners, to sever the panel, and try them severally, if they insisted upon their right of several challenges. This settled the question that prisoners, jointly indicted, could, against their wishes, be tried separately; but whether prisoners, jointly indicted, could demand a separate trial, presented another question; some insisting that they possess such a right; others contending that such severance is a matter of sound discretion, to be exercised by the court, with that due regard and tenderness to prisoners, which characterizes our criminal jurisprudence; and this latter we regard as the better opinion. In the section under consideration, this doctrine has been adopted, except as to cases of joint indictments for felonious homicide, in which it is proposed to give the accused the positive right to demand separate trials; in cases of joint trials, it is also proposed to limit the number of the challenges of all the prisoners, to the number each would be entitled to if separately tried, and no more. As prisoners jointly indicted for felonious homicide have, by this section, the right to sever in their trials, persons so circumstanced will not be affected by this latter provision, in cases of joint trial, as their being so tried is a matter resting entirely in their own choice. Report on the Penal Code 45. (c) The court may direct a special venire to issue to two citizens, instead of the sheriff or coroner, whenever, in their opinion, the nature of the case requires it. Commonwealth v. Carson, 3 Phila. 219. (d) This does not repeal so much of the act of 1834 as authorizes the selection of talesmen, either from the bystanders or from the body of the county. Commonwealth v. Brown, 30 L. I. 382. (e) It is an irregularity, to call talesmen, unless it appear of record, that the regular panel was exhausted, and an order for talesmen made; but such irregularity, if not objected to, is cured by the verdict, under the 53d section. Jewell v. Commonwealth, 22 P. S. 94. (g) This section is a summary of the 144th, 145th, 146th, 147th and 148th sections of the act of 14 April 1834, P. L. 367; which sections have been left unrepealed, as they apply equally to civil as well as criminal proceedings. Report on the Penal Code 46. (h) This section is taken from the proviso to the 1st section of the act of 3 May 1850, P. L. 654. Report on the Penal Code 44. The act 29 March 1819, 4, provided that, after indictment found by the grand jury, it should not be lawful for the attorneygeneral to enter a nolle prosequi thereon, except in the case of assault and battery, fornication and bastardy, on agreement between the parties, and in prosecutions for keeping tippling-houses, with the consent of the court. 7 Sm. 227. And this section still further restricts the powers of the district attorney; but it does not appear to confer on him the right to enter a nolle prosequi, even with the consent of the court, in cases in which it was previously forbidden. See Berks County v. Pile, 18 P. S. 497. Schwamble v. Sheriff, 22 Ibid. 21. (i) This section is new, and necessary in the event of trials of treason against the state hereafter taking place. Report on the Penal Code 46. (k) This is an amendment of the 46th section of the act 31 March 1860, P. L. 284. See Commonwealth v. Cioffi, 5 Montg. 128. This section has been introduced to remove a difficulty which might arise in a case of homicide, where a man had died in one county from an injury, or other cause of death, received in another county. Hawkins, in his Pleas of the Crown, book II., ch. 25, § 36, says, that "at the common law, if a man had died in one county of a stroke received in another, it seems to have been the more general opinion that, regularly, the homicide was indictable in neither of them, because the offence was not complete in either, and no grand jury could inquire of what happened out of their county." This inconvenience was remedied by 2 & 3 Edw. VI. ch. 24, by which it was enacted, that in such cases the trial should take place in the county where the death happened. This statute is among those reported by the judges of 31 March 1860 § 47. P. L. 439. Feloniously striking or poisoning in the state, and death out of the state. Ibid. § 48. Proof of offence committed near county lines. Ibid. § 49. Proof of offences journeys. 49. If any person shall be feloniously stricken, poisoned or receive other cause of death, within the jurisdiction of this state, and shall die of such stroke, poisoning or other cause of death, at any place out of the jurisdiction of this state, an indictment therefor found by the jurors of the county in which such stroke, poisoning or other cause of death shall happen as aforesaid, shall be as good and effectual, as well against the principal in such murder, as against the accessory thereto, as if such felonious stroke, poisoning or other cause of death, and the death thereby ensuing, and the offence of such accessory, had happened in the same county where such indictment shall be found; and the courts having jurisdiction of the offence shall proceed upon the same, as well against principal as accessory, as they could in case such felonious stroke, poisoning or other cause of death, and the death thereby ensuing, and the offence of such accessory, had both happened in the same county where such indictment shall be found. (1) 50. In order to obviate the difficulty of proof as to all offences committed near the boundaries of counties, in any indictment for felony or misdemeanor committed on the boundary or boundaries of two or more counties, or within the distance of five hundred yards of any such boundary or boundaries, it shall be sufficient to allege that such felony or misdemeanor was committed in any of the said counties; and every such felony or misdemeanor shall and may be inquired of, tried, determined and punished in the county within which the same shall be so alleged to have been committed, in the same manner as if it had been actually committed therein.(m) 51. In order to obviate the difficulty of proof as to offences committed during journeys from place to place, in any indictinent for felony or misdemeanor comcommitted during mitted on any person, or on any property, upon any stage-coach, stage, wagon, railway-car or other such carriage whatever, employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed;(n) and in all cases where the centre or other part of any highway shall constitute the boundaries of any two counties, it shall be sufficient to allege that the felony or misdemeanor was committed in either of the said counties through, or adjoining to, or by the boundaries of any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed; and in any indictment for any felony or misdemeanor, committed on any person, or on any property, on board any vessel whatsoever, employed in any voyage or journey on any navigable river, canal or inland navigation, it shall be sufficient to allege that the felony or misdemeanor was committed in any county or place through any part whereof such vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed; and in all cases where the side or bank of any navigable river or creek, canal or inland navigation, or the centre or other part thereof, shall constitute the boundary of any two counties, it shall be sufficient to allege that such felony or misdemeanor was committed in either of the said counties through, or adjoining to, or by the boundary of any part thereof, such vessel shall have passed in the course of the voyage or journey during which such felony or misdemeanor shall have been committed; and every such felony or misdemeanor committed in any of the cases aforesaid, shall and may be inquired of, tried, determined and punished in the county or place within which the same shall be so alleged to have been committed, in the same manner as if it had actually been committed therein. 18 March 1875 § 1. P. L. 30. XIV. Change of venue. 52. In criminal prosecutions, the venue may be changed, on application of the defendant or defendants, in the following cases: I. When the judge, who by law is required to try the same, is a near relative the supreme court, as being in force in Pennsylvania; hence, the expediency of this section to meet such a case, should it hereafter arise. Report on the Penal Code 49. See United States v. McGill, 4 Dall. 426, and note. (1) In the case of a wound, or other cause of death, being given in this state, and the party receiving the same dying in another state (a thing which might very readily occur, as in the case of duels), by the existing law it is, at least, doubtful, whether a prosecution for homicide could be maintained in either. Hawkins, book I., ch. 31, §§ 11, 12. If a mortal injury, or poison, is given or administered maliciously in the state, and death ensues therefrom out of the state, the act which caused the death, and the malice which influenced the act, the two great essential elements of felonious homicide, having been perpetrated and manifested within our jurisdiction: it seems, therefore, fitting that in such cases, jurisdiction over the crime should be exercised by the state. The section is new, but manifestly necessary in any penal system claiming to be complete. Report on the Penal Code 49. (m) The 48th and 49th sections are new; they are intended to obviate difficulties which occur in laying the county, where a crime has been committed, so near county lines, as to render it doubtful in which of two counties it has been actually perpetrated; and to obviate similar difficulties, where the crime has been committed during journeys or voyages by land or water, in carriages or vessels of any kind, which have passed through various counties in the journey or Voyage during which the crime has been committed. The sections will be found of real practical value. Report on the Penal Code 49. See People v. Davis, 36 N. Y. 77; s. c. 56 Ibid. 95. (n) See People v. Dowling, 84 N. Y. 478. |