Commonwealth v. Lloyd

Per Curiam :

The defendant was indicted in the court below for fornication and bastardy. He entered the plea of autrefois convict, and in support of it produced the record of an indictment for the same offence in the county of Luzerne, with his conviction of the fornication. It was conceded that the latter offence had been committed in Luzerne, but that the female bastard child, the result of the intercourse, was born in Lackawanna county. The act of March 31, 1860, P. L. 393, provides that in cases of this kind “ the prosecution of the reputed father shall be in the county where the bastard child shall be born,” etc. It will thus be seen that a conviction of the bastardy in Luzerne county was impossible; the prosecution should have been commenced in Lackawanna. The commonwealth proceeded against him in the former county, and having convicted him of one of the offences charged, viz., the fornication, can she now hold him in the courts of Lackawanna county for the bastardy? We think not. While it is true that this of-fence may be so far separated as to charge fornication in one count of an indictment and bastardy in another, yet the has-tardy is but an incident of the fornication, the result of a single act. Hence, we do not think the commonwealth can prosecute for the one offence in one county, and for the other in a different county. In other words, there may be two counts, but not two prosecutions. The commonwealth has elected in this instance to proceed in Luzerne county, and we think is bound by such election. We are of opinion that the court below was right in sustaining defendant’s plea.

Judgment affirmed.