Commonwealth v. Lewis

Opinion,

Mr. Chief Justice Paxson:

The defendant was convicted of fornication and bastardy upon an indictment containing three counts. In the first, he was charged with assault and battery; in the second, with an assault with intent to ravish; and in the third, with statutory rape and with bastardy, the material portion of said count being that the said defendant, “ then and there being of the age of sixteen years and upwards, in and upon the said Lizzie Kimmel, then and there being a woman child under the age of sixteen years, and then and there in the peace of God and of the said commonwealth being, feloniously did make another assault, and her, the said Lizzie Kimmel, then and there feloniously, un lawfully, and carnally did know and abuse, and a male bastard child on the body of her, the said Lizzie Kimmel, did beget, contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”

Upon the trial below, a motion was made to quash the indictment for a misjoinder of counts, and also to quash the third count. Both motions were refused, and we think properly. Under our authorities there was no misjoinder: Henwood v. Commonwealth, 52 Pa. 424; Hunter v. Commonwealth, 79 Pa. 503. Nor is error perceived in charging bastardy in the same count with the rape. Fornication and bastardy are almost invariably charged in the same count, and adultery and bastardy may be: Gorman v. Commonwealth, 124 Pa. 536. In either case, the bastardy is but an aggravation of the offence charged. Why may not a count for rape include a charge of bastardy ? Both adultery and rape include the offence of fornication ; it is necessarily involved in them: bastardy is not necessarily involved, but it may be. Here the offence was rape; it involved fornication, and bastardy resulted as an incident. There was but the one act charged in the indictment, although it is called by different names, to meet the exigencies of the proofs on the part of the commonwealth.

It was urged, however, that the conviction was not warranted by the act of May 19,1887, P. L. 128, which provides that the jury may acquit of the charge of rape, in such cases as this, and convict “ of the fornication only.” We do not understand that the legislature intended by the use of the word “ only,” to prohibit, on an indictment for rape, a conviction of a constituent offence involved within it. All that it means is that there may be an acquittal of the rape and a conviction for the fornication. It is as if the legislature had said the defendant may be convicted of the fornication “ merely.”

Judgment affirmed.