of the prosecutor, or of the defendant, or of the person injured, or has knowledge 18 March 1875 § 1. of facts which make it necessary that he should be a witness in the case. P. L. 30. II. When, upon the application of a defendant in a felony, it is made to appear In what cases the to the satisfaction of the court, that from undue excitement against the prisoner, venue may be in the county where the offence was committed, a fair trial cannot be had, or that changed. there exists in that county so great a prejudice against him that he cannot obtain a fair trial, or that there is a combination against him, instigated by influential persons, by reason of which he cannot obtain a fair trial. III. When, upon the trial of any criminal case, an unsuccessful effort has been made to procure and impanel a jury for the trial of the defendant, and it shall be made to appear to the court, by the written affidavit of some credible witness, that a fair trial cannot be had. IV. When, upon a second trial of any felonious homicide, the evidence on the former trial thereof shall have been published within the county in which the same is being tried, and the regular panel of jurors shall be exhausted without obtaining a jury. Ibid. § 2. 53. All applications for changes of venue shall be made to the court in which the indictment shall be pending, in such manner as the said court shall direct, Applications for and before the jury shall be sworn therein; and if the said court shall be satisfied change of venue. of the propriety of such change of venue, and that the causes assigned therefor are true, and are within the provisions of the first section of this act, it shall be ordered that the venue thereof shall be changed to some adjoining or convenient county, where the causes alleged for a change do not exist. Ibid. § 3. Record to be trans 54. When an order for a change of venue shall be made, the clerk of the court shall make out a full and complete transcript of the record and proceedings in said cause, and transmit the same, together with the indictment and all other mitted. papers on file, to the clerk of the court to which the venue is changed, which transcript shall be entered on the minutes of said court; and the trial of said Trial. case shall be conducted in the court to which it shall be removed, in all respects as if the indictment had been found in the county to which the venue is changed. And the costs accruing from a change of venue, shall be paid by the county in Costs. which the offence was committed. Ibid. § 4. Recognizances. 55. When the court has ordered a change of venue, it shall require the accused, if the offence is bailable, to enter into a recognizance, with good and sufficient sureties, to be approved by the court or judge, in such sum as the court may direct, conditioned for his appearance in the court to which the venue is changed; at the first day of the next term thereof, and to abide the order of such court; and in default of such recognizance, or if the offence be not bailable, a warrant shall Warrants. be issued, directed to the sheriff, commanding him to safely convey the prisoner to the jail of the county where he is to be tried, there to be safely kept by the jailer thereof, until discharged by due course of law; and the court shall bind witnesses to be the witnesses on the part of the commonwealth to appear before the court in which recognized. the prisoner is to be tried. XV. Criminal trials. P. L. 439. 56. In all cases in which two or more persons are jointly indicted for any offence, 31 March 1860 § 40. it shall be in the discretion of the court to try them jointly or severally, (o) except that in cases of felonious homicide the parties charged shall have the right to Trial of persons demand separate trials;(p) and in all cases of joint trials, the accused shall have jointly indicted. the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more. P. L. 439. 57. No person who may hereafter be arraigned on any indictment, and who shall 31 March 1860 § 34. be bound by recognizance to appear and abide by the judgment of the court, shall be placed within the prisoner's bar, to plead to such indictment, or be con- Persons under bail fined therein during his trial; and all persons shall have an opportunity of a full not to be placed and free communication with their council. (q) in the criminal bar. XVI. Trial of accessories. P. L. 489. 58. If any person shall become an accessory before the fact, to any felony, 31 March 1860 § 44. whether the same be a felony at common law, or by virtue of any act of assembly now in force or hereafter to be in force, such person may be indicted, tried, con- of accessories victed and punished in all respects as if he were a principal felon.(r) (0) See Commonwealth v. Hughes, 11 Phila. 430. (p) See Shay v. Commonwealth, 36 P. S. 305. (7) This section is taken from the act of 28 March 1808, 4 Sm. 529. Report on the Penal Code 45. (r) The principle of this section, which prescribes the same punishment against accessories before the fact in felony, under the various synonymes of aiders, abettors, counsellors, comforters, &c., as against principals, is familiar to our criminal legislation; it is found in the 7th section of the act of 1718, 1 Sm. 113; before the fact. in the 2d section of the act of 8 March 1780, 1 Sm. 499; in the 2d, 3d and 5th sections of the act of 5 April 1790, 2 Sm. 531; and in the 4th section of the act of 23 April 1829, 10 Sm. 431. There is, therefore, nothing new in the principle of this section, which is founded on the theory of the moral guilt of the accessory before the fact, being equal to that of the principal offender. The new principle in the section is that which makes the accessory before the fact, guilty of a substantive offence, and which subjects him to pun 31 March 1860 § 45. P. L. 439. the fact. 59. If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law, or by virtue of any act of assembly now in Of accessories after force or that may be hereafter in force, he may be indicted and convicted as an accessory after the fact, to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished; and the offence of such person, howsoever indicted, may be inquired of, tried, determined and punished, by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act by reason of which such person shall have become accessory, had been committed at the same place as the principal felony: Provided always, That no person who shall be once duly tried for any such offence, whether as an accessory after the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. (s) 31 March 1860 § 50. P. L. 439. Party indicted for felony or misdemeanor, may be found guilty of XVII. Verdict. 60. If, on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury, upon the evidence, that the defendant did not complete the offence charged, but was guilty only of an attempt to commit the same, such person shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return, as their verdict, that the defendant is not guilty of the attempt to commit felony or misdemeanor charged, but is guilty of an attempt to commit the same; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment; and no person so tried as the same. ishment for his crime, without postponing it until the conviction of the actual perpetrator; or more precisely speaking, which abolishes, in felonies, the technical distinction now existing between accessories before the fact and principal offenders. This was always the law as regards misdemeanors, in which there are no accessories, all being regarded by law as principals; in felony, however, except in certain cases about to be noticed, an accessory cannot be tried before the conviction or outlawry of his principal, unless tried with him. In felonies of frequent occurrence, this was found a great and serious evil, which called for and received partial legislative correction; as early as the act of the 31st May 1718, 1 Sm. 105, it was provided that persons harboring, concealing or receiving robbers, burglars, felons or thieves, or receiving or buying any goods or chattels that should have been feloniously taken or stolen by any such robbers, &c., knowing the same to be stolen, might be proceeded against as is therein directed; and that if any such principal felon could not be taken, so as to be prosecuted and convicted for such offence, that nevertheless it shall be lawful to prosecute and punish every such person buying or receiving any goods stolen by such principal felon, knowing the same to be stolen, although the principal felon should not be convicted of the felony. This, however, embraced only one class of accessories, to wit, receivers of stolen goods, in cases where the principal was not amenable to justice; afterwards, by the act of 23 September 1791, 3 Sm. 41, it was provided, "in all cases of felonies of death, robbery and burglary, it shall be lawful to punish receivers of such felons, robbers and burglars, by a fine and imprisonment, although the principal felons, robbers and burglars cannot be taken, so as to be prosecuted and tried for said offences; which conviction and sentence of said receivers shall exempt them from being prosecuted as accessories after the fact, in case the principal felon, robber or burglar shall afterwards be taken and convicted." This act extended only to accessories after the fact, in cases in which the principals could not be taken. The act of 11 April 1825, 8 Sm. 438, was passed to avoid a difficulty which afterwards arose in the prosecutions of receivers of stolen goods, in cases in which the principals were amenable to justice. The act of 1718 was taken from the 4th section of 4 & 5 Anne, ch. 31, which only authorized proceedings against such receivers, before the conviction or attainder of their principals, when such principals could not be taken. Foster, in his discourse on accomplices, § 6, p. 373, says, on this point: "I know attempts have been made, under various shapes, to prosecute the receiver, as for a misdemeanor, while the principal hath been in custody and amenable, but not convicted; but I think such devices illegal." The act of 1825 solved the difficulty, by declaring that receivers of property, knowing it to have been feloniously stolen, may be prosecuted, although the principal be not before convicted, and whether he is amenable to justice or not. It will thus be seen, that all our legislation with regard to the trial of accessories to felonies, before the conviction of their principals, applies only to accessories after the fact, a class of offenders who have had no primary connection with the original crime, and whose guilt only consists in having given comfort and succor to the actual offender, after its perpetration; except in cases of receivers of stolen goods, this offence is often almost venial, consisting frequently in parents and friends, influenced by the ties of blood, or the impulses of affection, giving aid and comfort to an offender whose crime they abominate and deplore. It seems strange, that the common-law privilege, which exempted accessories from liability to justice until the conviction or attainder of the principal, should be taken away in cases of accessories after the fact, and left in those of accessories before the fact, whose guilt is always as great, and often much greater, than that of the principal. The 45th section proposes putting our statute laws on the subject of accessories to felonies in harmony with justice and reason. Report on the Penal Code 46-8. See Campbell v. Commonwealth, 84 P. S. 187. Brandt v. Commonwealth, 94 Ibid. 290. Commonwealth v. Hughes, 11 Phila. 430. Commonwealth v. Kelly, 10 L. Bar 107. (s) This section is only an extension of the existing laws, which, as will be seen from the preceding remarks, subjected accessories after the fact, and receivers, to punishment before the conviction or attainder of their principals. It embraces such accessories, not only in common-law felonies, but those created, or which hereafter may be created by statute; it authorizes the conviction of such offenders either with or after the conviction of the principals, or for a substantive offence, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. It also provides for the case of a party becoming an accessory after the fact in one county, to a felony committed in another; giving jurisdiction over the crime of such accessory to the courts of the county having jurisdiction over the crime of the principal offender. This provision supplies the 22d and 23d sections of the act of 1718, 1 Sm. 119, made probably to meet a doubt at common law, whether an accessory in one county to a felony in another was indictable in either. Report on the Penal Code 48. See sub-tit. "Punishment,” infra. herein lastly mentioned, shall be liable to be afterward prosecuted for an attempt 31 March 1860 § 50. to commit the felony or misdemeanor for which he was so tried.(t) P. L. 439. Persons tried for 61. If, upon the trial of any person for any misdemeanor, it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person misdemeanor not tried for such misdemeanor shall be liable to be afterwards prosecuted for felony to be acquitted, if on the same facts, unless the court before whom such trial may be had shall think the offence turn fit, in its discretion, to discharge the jury from giving and verdict upon such trial, and direct such person to be indicted for felony; in which case, such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor. out to be felony. P. L. 403. assaults. 62. If upon the trial of any indictment for felony, except murder or man- 31 March 1860 § 99. slaughter, the indictment shall allege that the defendant did cut, stab or wound any person, and the jury shall be satisfied that the defendant is guilty of the cut- Modified verdict in ting, stabbing or wounding charged in such indictment, but are not satisfied of cases of felonious his guilt of the felony charged in such indictment, then and in every such case, the jury may acquit the defendant of such felony, and find him guilty of a misdemeanor, in unlawfully cutting, stabbing and wounding; and thereupon such defendant shall be sentenced to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or to simple imprisonment, not exceeding three years. (u) P. L. 439. 63. No verdict in any criminal court shall be set aside, nor shall any judgment 31 March 1860 § 53. be arrested or reversed, nor sentence delayed, for any defect or error in the precept issued from any court, or in the venire issued for the summoning and Cure of defects in returning of jurors, or for any defect or error in drawing, summoning or return- jury process, by ing any juror, or panel of jurors, (*) but a trial, or an agreement to try on the merits, (w) or pleading guilty, or the general issue, in any case, shall be a waiver of all errors and defects in, or relative or appertaining to the said precept, venire, drawing, summoning and returning of jurors. (x) XVIII. Punishment-Sentence-Imprisonment. verdict. 64. No crime whatsoever, hereafter committed, except murder of the first degree, 31 March 1860 § 177. shall be punished with death in the state of Pennsylvania.(y) (t) The 50th and 51st sections are new, and intended to facilitate the conviction of offenders, and avoid unnecessary delay in the administration of criminal justice. By the law as it now stands, if, on the trial of an indictment for felony, it appears that some circumstance is wanted to establish the complete technical offence, the prisoner must be acquitted, although the proofs are perfect of an attempt to commit the crime; and on the other hand, where the indictment charges an attempt to commit a crime, and the proof establishes that the crime has actually been committed, the American courts have generally held that the prisoner must be acquitted, because the misdemeanor charged is merged in the felony proved. The operation of the first of these doctrines is best exemplified by decided cases. Lord HALE, in his Pleas of the Crown, vol. I., p. 508, thus recites one of these cases: A. hath his keys tied to the strings of his purse; B., a cut-purse, takes his purse, with the money in it, out of his pocket, but the keys which were hanged to his purse-strings, hanged in his pocket; A. takes B. with his purse in his hand, but the strings hanged to his pocket by the keys; it was ruled, that this was no felony, for the keys and pursestrings hanged in the pocket of A., whereby A. had still, in law, the possession of his purse, so that licet, cepit non asportavit. So, where a thief went into a shop, took up some goods, intending to steal them, but before he had removed them from the spot on which they lay, discovered they were tied to the counter by a cord; upon being tried for stealing, it was held, that the property never was either completely severed from the possession of the owner, nor completely in the possession of the prisoner, and he was acquitted." Sleigh's Criminal Law 29. In regard to the other doctrine sought to be changed by this section, viz. that a misdemeanor charged is merged in a felony proved, it has been frequently held in this country that where, on an indictment for an assault, attempt or conspiracy, with intent to commit a felony, it appeared that the felony was actually committed, it was the duty of the court to charge the jury, that the misdemeanor had merged, and that the defendant must be acquitted. Wharton's Am. Crim. Law, §§ 564, 2294. In England, however, this doctrine has been shaken, if not repudiated, by the cases of Rex v. P. L. 425. Neale, 1 Dennison's Cr. Cas. 36, and Rex v. Button, 11 Ad. & E. (N. S.) 829. The section under consideration will, if adopted, destroy the future operation of a subtle fiction, having no origin in substantial common sense. Report on the Penal Code 50. But on an indictment charging a felony triable only in the oyer and terminer, there cannot be a conviction for a misdemeanor. Commonwealth v. Harper, 14 W. N. C. 10. (u) This section is new; it is intended to meet the case where a party has been indicted for a felonious assault, such as is provided against in the 81st, 82d and 83d sections of this act, and the proofs, while they may fail to sufficiently establish the facts required to constitute the felony, are adequate to make out the misdemeanor provided against in the 98th section hereof. Under this section the jury may acquit of a felonious assault, and convict of the misdemeanor. Report on the Penal Code 27. (v) See Commonwealth v. Smith, 2 S. & R. 300. Commonwealth v. Sallager, 3 Clark 127. Lynch v. Commonwealth, 77 P. S. 205. (w) A trial on the merits is a waiver of all irregularities and defects in the mode of summoning and returning the jurors. Fife v. Commonwealth, 28 P. S. 429. After a trial, it is too late to object to mistakes in the process, as to the Christian and surname of some of the jurors by whom the verdict was rendered. Jewell v. Commonwealth, 22 P. S. 94. If a person, not on the panel, be called and permitted to sit, the irregularity is cured by this section. Burton v. Ehrlich, 15 P. S. 236. But if a stranger answer to the name of one of the panel, and is sworn as a juror, it is a mistrial, and not within the statute. Commonwealth v. Spring, 5 Clark 238. See Commonwealth v. Sallager, 3 Ibid. 127. If the prisoner stand mute, and the plea of not guilty be entered by the court, it is within the act. Dyott v. Commonwealth, 5 Wh. 67. See Commonwealth v. Chauncey, 2 Ash. 90. (x) This section is a transcript of the act of 21 February 1814, 6 Sm. 111. The original act has been left unrepealed, and has been introduced here in order to give relative completeness to the code of criminal procedure. Report on the Penal Code 51. (y) It will be perceived that in prescribing the punishment of the various crimes, the maximum amount 31 March 1860 § 178. P. L. 425. Ibid. § 182. Second conviction after punishment of similar offences. 65. Every felony, misdemeanor or offence whatever, not specially provided for by this act, may and shall be punished as heretofore.(z) 66. If any person who has been convicted of any offence, other than murder of the second degree, for which the punishment prescribed by this code is imprisonment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offence, or of any offence for which such punishment is directed, he shall, in either case, upon conviction, be sentenced to undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this commonwealth, be prescribed for the crime 31 March 1860 § 121. of which he is convicted.(a) P. L. 411. 67. Every person found guilty of a misdemeanor under either of the preceding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to an imprisonment, not exceeding two years, or be to be inflicted has only been defined; the principle found in some codes, that upon conviction, à certain minimum amount of punishment shall, under any state of circumstances, be imposed on the culprit, being entirely excluded; a broad discretion being thus given to the courts, in order that the extent of punishment imposed should, in every case, bear a due relation to the relative enormity of the offence. It is this enlightened and humane principle which distinguishes modern criminal jurisprudence from the system of blind and indiscriminate severity, which it has happily superseded; a system which seemed to regard a criminal as a noxious excrescence on society, to be ruthlessly extirpated, rather than as a diseased member, to be rendered, if possible, whole. In all modern penal legislation, the truth of this principle has been admitted, but in its mode of application, there has been much variance; in some, a maximum extent of punishment has been prescribed by the lawgiver, leaving its modification to the intelligent and experienced discretion of the criminal tribunals; in others, a maximum and minimum extent of punishment have been provided, greater or less than which, the tribunals are forbidden to inflict under any possible state of circumstances: in some, the extent of punishment, within certain prescribed limits, is referred to the discretion of the jury by whose verdict the criminal has been convicted; in others, crimes have been divided into degrees, more or less minute, to which graduated punishments have been assigned, and the jury trying the offender have been required, in the event of his conviction, to determine the degree of his guilt. In effect, the last two systems are the same, as the power to determine the degree of punishment as affixed by law, gives substantially the power to impose the punishment to be inflicted for the crime. Neither of these systems has been absolutely adopted in Pennsylvania; a mean between the first two has been taken; in minor crimes, maximum punishments only have been prescribed; the minimum principle being introduced in reference to those of a graver nature. In all these systems, the leading object of the lawgivers has been to produce a harmonious relation between the real magnitude of the crime and the severity of its punishment; the difference between them being only as to the most effective means of accomplishing an object equally desired by all. Amongst them, the commissioners give the decided preference to that which simply determines the maximum punishment to be inflicted on the crime, leaving all intermediate degrees of punishment to be determined by the criminal tribunals, according to the greater or less atrocity of the circumstances attending the commission of the crime. That such an important discretionary authority would be more steadily, uniformly and consistently exercised, by an upright, learned, responsible and experienced tribunal, than by a jury, is a proposition not likely to be disputed by any one familiar with judicial proceedings. The sole apparent advantage to be derived from requiring, by law, that a party convicted of a crime shall receive a given amount of punishment, whatever may be its intrinsic character, and under whatever circumstances of extenuation it may have been committed, is to prevent parties convicted of crimes of heinous character from obtaining immunity through the weakness or dishonesty of judges. The instances of the former are rare in this commonwealth; of the latter, none is believed by us ever to have existed; the purity of our judiciary is one of the things which calumny has, as yet, left untouched. To guard against a theoretical and problematical evil, it does not seem wise or expedient to introduce a positive and actual one; whoever has been long and extensively engaged in the practical administration of criminal justice, under the maximum and minimum systems of punishments, has found occasions in which the statutory minimum punishment has greatly exceeded that which ought to have been inflicted on the offender, under the special circumstances of the case. The experienced criminal magistrate knows that the same nominal crimes present almost infinite shades of atrocity; whilst in some no extenuating circumstance softens the malignity of the offence, or challenges mercy for the offender, in others, the established facts are barely sufficient to constitute the technical crime charged and the attendant circumstances, such as to appeal strongly to the best regulated sympathies. In such cases, it not unfrequently happens that the jury, knowing the extent of the punishment which must follow a conviction, and regarding it as greater than the intrinsic turpitude of the offence calls for, acquit a culprit, whom, under a different system of punishment, they would have convicted. Even when juries, reasoning on sounder principles, convict such an offender, and the court has imposed the lowest statutory punishment they are authorized to inflict, the executive is invoked to correct, by his pardon, the excessive severity of such punishment, and yields to the solicitation, not because he does not believe a crime has been committed, requiring, for the sake of public example, that some punishment should have been inflicted upon the offender, but because, from the inflexibility of the law, the punishment has been disproportioned to the offence. The duty of a criminal judge is not simply to punish an offender within the limits prescribed by law, but it is equally his duty to graduate the punishment according to the criminal capacity, general intelligence, past conduct and character of the culprit, and the aggravating or extenuating circumstances of each particular case. All positive and arbitrary minimum punishments necessarily interfere with the free and full exercise of this judicial duty, and should find no place in a truly philosophical code of crimes and punishments; besides, minimum punishments do but restrain judicial mercy, whilst within the maximum limit fixed by law, judicial severity is left without control. All the members of this commission have been, more or less, extensively engaged in the administration of criminal justice; the principle advocated is not, therefore, with them an abstract and untried theory, but the conviction of long experience and observation in actual criminal administration. Report on the Penal Code 5-7. The 177th section is a transcript of the 1st section of the act of 22 April 1794, 3 Sm. 187. Report on the Penal Code 37. (z) This is a saving section, leaving every crime, not specially provided for in this act, punishable as heretofore. Report on the Penal Code 37. Under it, an indictment will lie against a woman as a common scold. Commonwealth v. Mohn, 52 P. S. 243. (a) This section provides for the punishment of second offences. The principle upon which it is founded was introduced into our system by the 13th section of the act of 22 April 1794, 3 Sm. 190; it will also be found in the punishments provided by the act of 23 April 1829, 10 Sm. 430. Report on the Penal Code 38. See Commonwealth v. Morrow, 9 Phila. 583. That a prisoner has been previously convicted of a similar crime, may be brought before the court by suggestion filed by the district attorney. Commonwealth v. Hagan, 10 C. C. 22. fined in any amount not exceeding one thousand dollars, or both, or either, at the 31 March 1860 § 121. discretion of the court.(b) P. L. 411. P. L. 451. 68. All fines imposed upon any party, by any court of criminal jurisdiction, 31 March 1860 § 79. shall be decreed to be paid to the commonwealth; but the same shall be collected and received, for the use of the respective counties in which such fines shall have been imposed as aforesaid, as is now directed by law.(c) Fines to be decreed to be paid to the use of the county. 31 March 1860 § 67. P. L. 450. 69. Whenever, hereafter, any person shall be condemned to suffer death by hanging, for any crime of which he shall have been convicted, the said punishment shall be inflicted upon him within the walls or yard of the jail of the county in Execution in capiwhich he shall have been convicted; and it shall be the duty of the sheriff or tal cases. coroner of the said county to attend and be present at such execution, to which he shall invite the presence of a physician, the district attorney of the county and twelve reputable citizens, who shall be selected by the sheriff; and the said sheriff shall, at the request of the criminal, permit such ministers of the gospel, not exceeding two, as he may name, and any of his immediate relatives, to attend and be present at such execution, together with such officers of the prison, and such of the sheriff's deputies as the said sheriff or coroner, in his discretion, may think it expedient to have present; and it shall be only permitted to the persons above designated to witness the said execution: Provided, That no person under age shall be permitted, on any account, to witness the same. And after the execution, the said sheriff or coroner shall make oath or affirmation, in writing, that he proceeded to execute the said criminal, within the walls or yard aforesaid, at the time designated by the death-warrant of the governor; and the same shall be filed in the office of the clerk of the court of oyer and terminer of the aforesaid county, and a copy thereof published in two or more newspapers, one, at least, of which shall be printed in the county where the execution took place. (d) P. L. 116. sentence of death. 70. It shall be the duty of the wardens or keepers of the state penitentiaries of 29 April 1874 § 1. this commonwealth, to receive into the prisons under their charge, on the order or warrant of the governor, any person convicted of any crime punishable with death, Imprisonment, on whose sentence shall have been commuted by the governor, on condition of being commutation of confined for life, or for a term of years, in one of the state penitentiaries, and to keep and confine such person safely, as is by law provided for the keeping and confinement of convicts sentenced to imprisonment in the penitentiaries of this commonwealth, and subject to the laws and regulations providing therefor; and it shall be the duty of the sheriff of the county in which such person was condemned, on the receipt of such order or warrant of the governor, to immediately convey such person to the state penitentiary, at the cost of such county, and deliver said order or warrant to the warden or keeper of said penitentiary: Provided, That the persons convicted in any of the counties composing the Eastern district, and whose sentences may be commuted, shall be confined in the state penitentiary of said district, and those convicted in any of the counties composing the Western district, and whose sentences may be commuted, shall be confined in the state penitentiary of said district. P. L. 449. 71. Whenever any person shall be sentenced to imprisonment at labor by sepa- 31 March 1860 § 74. rate or solitary confinement, for any period not less than one year, the imprisonment and labor shall be had and performed in the state penitentiary for the Sentences at labor proper district :(e) Provided, That nothing in this section contained shall prevent by separate or solisuch person from being sentenced to imprisonment and labor, by separate or solitary confinement. tary confinement, in the county prisons now or hereafter authorized by law to receive convicts of a like description: And provided, also, That no convict shall be sentenced by any court of this commonwealth, to either of the penitentiaries thereof, for any term which shall expire between the fifteenth of November and Expiration. the fifteenth of February of any year.(g) (b) This section as to certain crimes therein enumerated was amended by the act 12 June 1878. P. L. 196. (c) This section is a re-enactment of the existing law, and is introduced here for the purpose of giving more completeness to the code. Report on the Penal Code 56. (d) This section is taken from the act of 10 April 1834, P. L. 234. Report on the Penal Code 55. (e) See act 16 March 1866, as to Montgomery county, P. L. 200; and acts 11 April 1866, P. L. 588, and 22 March 1871, P. L. 435, as to Delaware county. (g) Whilst the 74th and 75th sections, except the proviso to the 74th section, are new in form, no material alteration is made in the law as it now stands. The 74th section requires that sentences of imprisonment at labor by separate or solitary confinement for a period of time not less than one year, shall be performed in the state penitentiary of the proper district, or in such county prisons as are now, or may hereafter be authorized to receive convicts of a like description; and the 77th section prohibits sentences of imprisonment at labor by separate or solitary confinement for a less period of time than one year, except in the counties where suitable prisons have been or shall hereafter be erected for such confinement and labor. This section also provides that in all cases where the sentence is for simple imprisonment only, the offender shall be confined in the county where the conviction shall take place. The sections taken together require: 1. That all persons sentenced to simple imprisonment, shall be confined in the county where the offender is convicted. 2. That no person shall be sentenced to imprisonment at labor by separate or solitary confinement for a less period than one year, except in the counties where, in the opinion of the court passing the sentence, prisons are provided suitable for such confinement and labor. 3. That all imprisonment at labor by separate or solitary confinement, where the sentences exceed one year, shall be in the state penitentiary for the proper district, except in the counties in whose prisons convicts of a like description are authorized to be imprisoned, and in those counties, such convicts may be sent to the county prisons as heretofore. The provision contained in the last proviso to the 74th section, |