Commonwealth v. Arner , 149 Pa. 35 ( 1892 )

Opinion by

Mb. Justice McCollum,

Two indictments were preferred against the appellant for one act of unlawful carnal intercourse, committed on June 8, 1890, with Elsie L. Weller, who was then under the age of sixteen years. In one he was charged with fornication and bastardy, and in the other with rape, as defined by the act of May 19, 1887, P. L. 128. On June 1, 1891, he was tried on the indictment for fornication and bastard}*-, and the case was submitted to the jury, but, before-a verdict was returned in it, he was required to plead to the indictment for rape. " To this he replied, “ not guilty and once in jeopardy,” and, specially, the facts above recited. The learned judge ruled that these facts were not a bar to the prosecution, and the trial proceeded on the other pleas. There was a verdict of guilty in each case. In the one first tried, the appellant was sentenced to pay to the prosecutrix $40 for lying-in expenses and past maintenance of the child, and the further sum of $1 per week for its support during the next seven years, if it should live so long. In the other case he was sentenced to pay the costs, a fine of $100, “ and undergo an imprisonment, by separate and solitary confinement at labor, in the Lehigh county prison, for the period of one year and six months.” From the judgment on the indictment for rape this appeal was taken.

Fornication is a misdemeanor, for which an indictment lies, and a fine not exceeding $100 may be imposed. It is also a constituent of incest, adultery, seduction under promise of marriage, and rape. On the trial of an indictment for either of the offences which include it, the defendant may be convicted or acquitted generally, or he may be acquitted of the major and convicted of the minor offence. In either case the verdict is a bar to a prosecution for the included misdemeanor. One acquitted or convicted of an offence, which necessarily includes a lesser one, cannot afterwards be convicted of the latter of-fence : Am. & Eng. Ency. of Law, vol. 11, p. 941, and cases cited: Dinkey v. Commonwealth, 17 Pa. 126; Com. v. Heikes, 26 Pa. 513. It is no objection to the application of this principle, that the major offence is a felony, and the minor one a misdemeanor: Hunter v. Commonwealth, 79 Pa. 503.

A verdict of acquittal or conviction on an indictment for the minor offence, is a bar to a trial on an indictment for a crime which includes it. On this point the rule is thus stated in Am. & Eng. Ency. of Law, vol. 11, p. 939: “ "Where a greater of-fence includes a lesser one, being placed in jeopardy under an indictment for the included offence only, constitutes a bar to a prosecution for the greater offence.” When the appellant was required to plead to the indictment for rape, he was in jeopardy, under the indictment for fornication, and, pending the deliberations of the jury in that case, he could not be lawfully subjected to a second trial for the same act.

If the age of the prosecutrix, and the age of the appellant, appeared in evidence on his trial for the misdemeanor, he would be within the letter, as he is within the principle and spirit of § 51, of our act of March 31, 1860, which provides that, “ 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 tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the court, before whom such trial may be had, shall think fit, in its discretion, to discharge the jury from giving any verdict on such trial, and direct such person to be indicted for felony.” It was within the knowledge of the court, and of the prosecuting officer, that the same act which was charged in one indictment as fornication, was laid in the other as rape, and that the evidence relied on to prove its perpetration was the same in each case. It may be that under the circumstances and the provision of the criminal procedure act we have quoted, an order discharging the jury “ from giving any verdict upon ” the trial for the misdemeanor, would have cleared the way for a lawful conviction on the indictment for the felony. But a conviction on both indictments cannot be sustained. The commonwealth having, with full knowledge of the facts, elected to proceed to trial and judgment for the minor offence, cannot now prosecute an indictment for the felony which included it. This is not a mere technical rule of procedure; it is a substantial one, which is founded in reason, and is in harmony with the constitutional mandate, that no person shall be subject to be twice put in jeopardy for the same offence.

Its violation cannot be cured by any modification or apportionment of sentences to meet the supposed equities of the case, and any seeming' miscarriage of justice, resulting from its enforcement, is not the fault of the law, but of noncompliance with it.

All the specifications of error are sustained.

Judgment reversed, and appellant, Benjamin Arner, discharged.