QUARTER SESSIONS.

Q. S. of

Commonwealth v. Neeley.

Chester Co.

Criminal Law-Former Conviction

or

indictment-Greater and less offence.

A former conviction or acquittal for a greater offence is a bar to a subsequent indictment for a minor offence included in the former; and whenever, under the indict ment for the greater, there could be a conviction on the less, a conviction or acquittal of the minor offense will bar a subsequent prosecution for the greater.

A conviction of fornication and bastardy, held to bar a subsequent prosecution for the same acts under an indictment for adultery.

Sur plea of former conviction.

The facts of the case appear by the opinion of the Court.

January 28, 1884. FUTHEY, P.J. The defendant was indicted at April Sessions, 1883, in separate bills for "fornication and bastardy," and for "adultery and bastardy;" he was tried on the indictment for fornication and bastardy and was convicted and sentenced. The Commonwealth then arranged the defendant on the indictment for adultery and bastardy, to which he pleaded that he had been already convicted and sentenced for the same offence.

It is conceded by the Commonwealth that the illicit carnal connection charged in both indictments is the same, and the question therefore presented is, whether, where a defendant is convicted and sentenced for the offence of fornication, he can be afterwards tried on an indictment charging him with the same unlawful act as adultery, he being a married man.

It is a rule than an acquittal or conviction on an indictment for a minor offense is generally no bar to a subsequent indictment for a greater, and the works on criminal law show the application of this rule. Thus, a conviction for assault with intent to kill, would be no bar to an indictment for murder, and an acquittal for larceny would not prevent a prosecution for burglary with intent to steal.

An acquittal or conviction, however, for a greater offence is a bar to a subsequent

a conviction of the minor, then a former conviction or acquittal of the minor, will bar the major. And where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit or autrefois convict is generally good; 1 Wharton on Criminal Law, sec. 560-565. An acquittal for voluntary manslaughter is a bar to a future prosecution for murder, and where a man is at the same time guilty of an assault and of a battery on the same person, the acquittal in one case is a bar to the other.

In the case before us, had the defendant been tried in the first instance on the indictment for adultery, he could, on such trial, have been convicted of fornication. If a trial were now permitted to be had on the indictment for adultery, he could, in like manner, be convicted of fornication, and thus we would have two convictions for the same offence, the one already had on the indictment for fornication and another on the indictment for adultery. The evidence necessary to support an indictment for adultery, is sufficient to warrant a legal conviction of fornication.

Illicit carnal intercourse is called by different names, according to the circumstances which attend it. It may be seduction, incest, adultery, fornication and bastardy, or simple fornication, but the body of all these offences is the illicit connection. In each case, the essential fact which constitutes the crime is such connection, and, on a trial for either of these offences, the defendant may be convicted of fornication; Dinker v. Commonwealth, 5 Harris 126.

For the latter offence the defendant has

been convicted and sentenced. He cannot be again placed on trial for the commission of the same criminal act, called by another name.

The plea is sustained.

The Court appointed Jacob Tyson as a reviewer. Jacob F. Tyson acted in that capacity. HELD, That as there

was a Jacob Tyson residing in a neighboring township and there is nothing to show who was intended, the report should be set aside, and an alias review granted.

Exceptions to report of reviewers.
E. W. Spangler for exceptions.
Levi Maish for report.

February 28, 1884, WICKES, P.J. Jacob Tyson was appointed a reviewer and Jacob F. Tyson acted. The evidence shows that there is a Jacob Tyson, a cousin of Jacob F., residing in a neighboring township, and we are not able to say who is intended. Under such circumstances the only safe plan is to set aside the report and grant an alias review under the provisions of the act February 23, 1870, P. L. 228. And now to-wit: February 28, 1884, we sustain the seventh exception, set aside this report, award an alias review, and appoint Frank J. McGee, of Wrightsville; Jacob Sitler, of East Prospect borough, and Daniel Anstine, of Windsor town ship.

that came within its letter, and thus at the very beginning of its existence the perpetuity of the RECORD was threatened by those who should have been its most earnest supporters.

The number of audits and other advertisements connected with assigned estates sustained the RECORD the first year in a substantial manner, but during the second year these declined, while the friends of the RECORD were hardly justified in standing alone as attorneys who required more advertising and made the expense of settling estates larger than others. As decreased, and the second year of its exa natural result the income materially istence left but a small margin for the labors of the publisher.

For the last two years the RECORD has been run at a loss. Frequent appeals last of which was the signing of a petition were made to the Bar in its behalf, the for a more stringent and comprehensive Rule. This measure would have saved the RECORD, and we had no doubt as to the power of the court to adopt it; but it has thought otherwise. However much pride we felt in the publication of the York county could not compete with RECORD, and a feeling of regret that counties like Delaware in the publication of a legal journal, we have no desire to pose as a benefactor of the Bar. If our journal is no longer desired, we will cease inflicting it upon any one and give room for something else, or see the decisions of our court and the learning of our Bar sink back to their former position, unpublished and unknown outside our own precincts.

To those members of the Bar who have supported us from the beginning, we return our sincere thanks-the others we

forgive. If in the future any enterprising genius makes a second attempt to pubfish a law journal, we hope he may be successful, and that the aid that was withheld from us will be extended to him. Perhaps the absence of the RECORD, with its conveniences and benefits, will cause it to be regretted by those who "cared for none of those things" during its lifetime.

An index and table of cases will be published in a short time, thus completing the fourth volume. With that work our

labors as editor and publisher of a legal journal will close, and the RECORD will

have reached

THE END.

I. G. S. and S. G. jointly administered upon
the estate of J. G. and under proceedings in par-
tition sold the real estate, upon which a charge
had been created, which operated as a lien in
the title, and which could not be discharged by
an Orphan's Court sale. The purchasers, how-
ever, paid the amount charged upon the land to
the administrators who filed a joint account, in
which they took credit for the sum of money so
received, and for the unexpended interest on the
lien, due from the inestate. The interest passed
into the hands of G. S., the principal into the
hands of S. G. C. S., for whose benefit the charge
had been created, was living at that time, and
continued to live until 1861, five years after the
filing of the account. In 1857, G. S. died, S. G.
continued to administer the estate, and was the
custodian of the principal sum received by him.
He subsequently became insolvent, and died,
without having paid over said principal to the
heirs of C. S., who were entitled to it upon her
death. When the account of the administrators
d. b. n. c. t. a. of G. S. was filed, and before the
Auditor appointed to distribute the balance
thereon, this principal sum was claimed by the
heirs aforesaid. HELD, (affirming the Court
below) That the estate of G. S. was liable for the
said amount retained by S. G.—Sprenkle's Ap-
peal, No. 2, 55.

law hold that it is not imperative that the affi-
davit should be made by the defendant
person-
ally, but that it should be so made unless cause
is shown to the Court why it should be made by
another.-Acker v. Moore, 190.

SUFFICIENCY OF. PROMISSORY NOTE, I.
AGENTS. INSURANCE, 3.

ALIMONY.

DIVORCE, I.

AMENDMENT.

I. The court below may amend its record after
a certiorari has issued to remove it to the Su-
preme Court.-Church's Appeal, 110.
ANTE-NUPTIAL CONTRACT.

DECEDENTS' ESTATES, 12.

APPEAL. JUSTICE OF THE PEACE, II. WAGES, I
APPLICATION. INSURANCE, 12.

ARBITRATION.
ARREST.

PRACTICE, 1-2.

1. The statute of 1725 in reference to issuing
writs of capias and the exemption of freeholds
from arrest is not repealed by the Act of 1836,
but is expressly declared operative by the Act of
April 14, 1838.—Wolf v. Yohn, 106.
ASSIGNMENT.

BENEFIT OF CREDITORS.

I. An absolute transfer of a man's property in
in trust for the payment of his debts will be re-
garded as an assignment under the Act of 1836
without regard to the particular form of convey-
ance, but a mortgage in trust to pay off certain
notes at the time to which the creditors had ex-
tended the time of payment is not an assign-
ment.-Johnson's Appeal, 158.

OF JUDGMENT. JUDGMENT, I.
ATTACHMENT.

AGAINST A MINOR.

I. When a minor contracts for goods, the same
the same not being necessaries, and afterwards
a domestic attachment is issued for the goods
and the minor through his guardian, ad litem,
plead his infancy: HELD, that the attachment,
for that reason, must be dissolved.

2. When the attachment against the defendant
cannot be sustained the proceedings against the
garnishee must end.-Kraft v. Landis, 133.

EXECUTION. JUSTICE OF THE PEACE, 1-6.
WHEN IT WILL LIE.

2. When an attachment would lie against a
party for nonperformance of a decree in equity,
it is also the proper remedy to enforce the pay-
ment of the costs. In such a case, it is not in
contravention of the Act of July 12th, 1851.-
Church's Appeal, 110.

ATTORNEY-AT-LAW. DIVORCE, 2. JUSTICE
OF THE PEACE, 8.

BAIL. JUSTICE OF THE PEACE, II.
BAILMENT. PRACTICE, 7.
BANK STOCK. DISTRIBUTION, 6.
BIBLE. CRIMINAL LAW, 9.
BOROUGH. MUNICIPALITY, 1-6.
BRIDGES.

ACTION OF GRAND JURY.

I. The action of the Grand Jury upon the re-
ports of viewers, re-viewers and re-re-viewers of
a bridge determines the proceedings. Hence
when one of the reports is approved by that body
the Court has no right to set aside their action,
unless for irregularity or want of jurisdiction in
the Grand jury.—Bridge in Rapho and West
Hempfield Townships, III.

BUILDING ASSOCIATION.

USURIOUS INTEREST.

1. Where, by the charter of a building asso-
ciation the right to collect otherwise usurious
interest premiums and fines was qualified by a
proviso "that such stockholder shall have signed
an agreement containing the following words"
etc., the association can only recover the actual
amount loaned, with simple interest, if the bor-
rowing stockholder has not signed the agree-
ment referred to.-Anthracite Building and
Loan Association v. Lyons, 103.

CERTAINTY. ROADS, 13.

CERTIORARI. JUSTICE OF THE PEACE,3,7, 12, 13
COLLATERAL INHERITANCE TAX.

LEGACIES SUBJECT TO.

1. The will of the testator provided that the
sum of $500 should remain charged upon his
farm forever, the interest on $100 thereof to be
paid annually to the Caernarvon Cemetery Asso-
ciation for dressing and caring for his cemetery
lot and grave; the interest on $200 thereof to be
paid annually to the same association for fencing
and keeping said cemetery in good order and
repair, and the interest on the remaining sum
of $200 to be paid to the minister in charge of
the Methodist Episcopal Church in Churchtown
for preaching the gospel.

2. HELD, that the portion of the legacy which
was to be used for dressing and caring for the
cemetery lot and grave of testator was not sub-
ject to collateral inheritance tax.

3. HELD ALSO that the other portions of the
legacy were liable for collateral inheritance tax,
and that as the testator had made no provision
for its payment out of any other fund or out of
the residue of his estate the same should be de-
ducted from the money so directed to be charged
on said real estate.-Hurst's Executor v. Caer-
narvon Cemetery Association, et al., 193.
CONSTABLE.

COSTS.

JUDGES' CERTIFICATE.

1. In an action of trespass quare clausum fre-
git the defendant plead a right of way. The
jury found for the plaintiff, and upon a motion
for the Judge's certificate upon the verdict, so
as to entitle the plaintiff to full costs, HELD, That
the Court will grant such certificate, where the
title to the land is in question.

2. That where the defendant seeks to prove
a right of way over the plaintiff's land, it is such
an action as tends to encumber his title, and
would come within the statute.-Mehring v.
Sparver, 17.

FEES OF. DIVORCE, 2.
POWERS OF. JUSTICE OF THE PEACE, 8.
COUNTY.

LIABILITY FOR COSTS.
CRIMINAL LAW.

COSTS. Infra 7.

CRIMINAL LAW, I, 7.

1. In the case of assault and battery, where
the defendant died after the Grand Jury had re-
turned a true bill against him and before the
trial was held, the county cannot be compelled
to pay the costs of prosecution.-Commonwealth
v. Gallagher, 99.

FORCIBLE ENTRY, See HUSBAND & WIFE, 8, 9.
2. Where the marriage relation is disrupted,
or denied by one of the parties, who is in pos-
session of the premises, a forcible entry by the
one out of possession is unlawful.-Com. ex rel.
Boden v. McGolrick, 51.

FORMER CONVICTION.

3. A former conviction or acquittal for a
greater offence is a bar to a subsequent indict-
ment for a minor offence included in the former;
and whenever, under the indictment for the
greater, there could be a conviction on the less,
a conviction or acquittal of the minor offence
will bar a subsequent prosecution for the greater.
-Com. v. Neeley, 209.

4. A conviction of fornication and bastardy
held to bar a subsequent prosecution for the
same act under the indictment for adultery.—Ib.

INSANITY.

5. Witness testified that he had known John
Coyle, Jr., 17 or 18 years, that he had plowed for
John Coyle, Sr., plowed in the Spring; got
ground ready for potatoes and tobacco; that he
saw John Coyle, Jr., on these different occasions;
saw him always about when the witness was
there. "Sometimes he cut wood in the wood
shed, one time white-washing, making fence;
he and the old man followed me when I plowed
and gathered up stones; sometimes ferried river
men, sometimes country people, across the
river, he spoke to me of course, sometimes he'd
ask me if I had my corn planted, if I had all my
grain in, (I often went back and forward), asked
me if I had done husking corn, *** I have
seen him ride horse back alone up the road
sometimes. This Spring 3 years Johnny came
and said the old man sent up to see if you would
plow for us." HELD, to show sufficient ac-
quaintance with the prisoner to be permitted to
express his opinion as to his soundness of mind.
-Com. v. Coyle, 47.

6. It was not error to permit the District Attorney to ask the medical witnesses as to each separate item of alleged evidence of insanity, and then group the whole into the question.-Ib.

INSOLVENT.

7. A resident of this Commonwealth in confinement for costs alone, under sentence of a criminal court, is entitled to be set at liberry forthwith upon making application for the benefit of the insolvent law, and presenting a bond in accordance therewith.-Com. v. Trout, 91. JURISDICTION. Infra, 8.

PLEADING.

8. A. was convicted of murder in one county. The Supreme Court reversed judgment, and granted a venire. The venue was then changed to another county. On the trial there the prisoner asked leave to withdraw his plea of "Not Guilty, ," and plead to the jurisdiction of the Court. This the Court refused. HELD, not to be sufficient ground for a new trial.-Com. v. Coyle, 47.

READING EXTRACTS.

9. It was not error to permit the District Attorney, in his argument to the jury, to read portions of the Pentateuch relating to murder. -Com. v. Coyle, 47.

SEDUCTION.

10. The evidence set forth in the opinion was was insufficient to go to the jury upon the question of a promise of marriage by the defendant prior to the seduction.-Rice v. Com. No. 2, 96.

WITNESS.

II. The failure of the Commonwealth to call a certain witness commented on.-Rice v. Com. No. 2, 96.

CUSTOM.

CONDUCTING ELECTION.

I. Where the charter of incorporation of a religious society contains nothing as to the mode of conducting election of trustees and there are no by-laws of the society regulating the same, former usage and practice becomes the law in such cases.-The Seventh-Day Baptists of Ephrata, Lancaster Co., 29.

DEATH.

EFFECT OF. CRIMINAL LAW, I; DECEDENTS' ESTATES, II; EVIDENCE, 1.

DECEDENTS' ESTATES.

ADMINISTRATION.

I. While the expressed wish of the decedent that A. should administer on her estate, would be strong ground to sustain his appointment pending a question of discretion before the Register, it is not a sufficient reason to reverse the grant of letters given to a fit person.-Groves' Estate, 191.

2. The Act of Assembly giving the widow the preferred right to administer on the estate of her deceased husband, has not made an imperfect or defective education a legal disqualification. -Bowersox's Appeal, 135.

3. A knowledge of the value of property, and the practical business transactions of life are sufficient to satisfy the requirements of the Statute.-Ib.

4. The powers of the register's court are now vested in the Orphans' Court, and when letters of administration are revoked by it, it should direct to whom the new letters should issue.Ward's Estate, 36.

DEBTS.

5. Under the Act of April 18, 1853, Sec. 2., the court may decree a sale of lands which are subject to the lien of debts not of record, although no such debts are actually known to exist.— Green's Estate, 122.

6. Where the real estate of a solvent decedent is sold by order of Court for the payment of debts, interest on liens does not stop at the date date of confirmation of the sale, but when the money is paid to the debtor.-Yeatman's Appeal, 19.

7. If the estate were insolvent, the interest would cease at the date of the confirmation of the sale.-Ib.

II. Death of a widow three days after filing petition for exemption, and before the approval of the appraisement by the Court, does not invalidate the claim.-Lafferty's Estate, 61.

12. A widower of fifty-seven years of age entered into an ante-nuptial contract with a destitute widow of sixth-three, whereby the latter, in consideration of a good and comfortable support during her life and a decent Christian burial, agreed to release all claim in and to her intended husband's estate. HELD, That the contract was upon a sufficient consideration, and that on the husband's death the widow was accordingly not entitled to $300 exemption.-Ludwig's Appeal, 61. DEED.

ALTERATION.

1. Although the whole of a deed be not written by the same hand, in the absence of erasure or interlination the presumption is that it was all written before sealing. The burden is on the other side to show that an alleged alteration was subsequent to delivery of the deed.-Feig et al. v. Meyers, 83.

READING.

2. If a party who can read will not read a deed put before him for execution, or if being unable to read will not demand to have it read or explained to him, he is guilty of supine negligence which it not the subject of protection, either at law or equity.-Anthracite B. & L. Association v. Lyons, 103.

RECORDING. MARRIED WOMAN, I. DIRECTORS OF THE POOR. LIABILITY OF.