243 Pa. 155 | Pa. | 1914
Opinion by
. The prisoner stands convicted of murder of the first, degree. It is for us to inquire whether or not the in
“When the legislature makes use of a technical-law term, its meaning must be ascertained by the common law; and therefore the definition of murder under the several statutes must be taken in the common law sense”: 4 Wharton’s Am. Crim. Law, sec. 930.
What then is there in this case that fastens upon the prisoner the crime of murder as so understood? By our criminal code of 1860 it is provided that,
“All murder which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder of the first degree.”
The only one of these enumerated offenses thus associated in the statute with the crime of murder which concerns us here, is that of rape. It was the contention of the Commonwealth on the trial, and it prevailed with the jury, that this child whose body was recovered as we have stated, met her death at the hands of the prisoner in consequence of an attempt on his part to have carnal knowledge of her person, whether such attempt was successful or otherwise. It was a further contention, one that prevailed with the court, that if the jury found the facts to be as stated the prisoner would be guilty of murder of the first degree, whether the attempt was made with or without the consent of the child, since by our Act of May 19, 1887, P. L. 128, which, is a supplement to the Act of March 31, 1860, P. L. 382, it is provided that,
“If any person shall have unlawful carnal knowledge of a woman forcibly and against her will, or who being of the age of sixteen years and upwards shall unlawfully and carnally know and abuse any woman child under the age of sixteen years with or without her consent, such person shall be adjudged guilty of felonious rape,” etc.
For the same reason which requires us to attach to the
. “If any person shall have unlawful carnal knowledge of a woman forcibly and against her will......such person .shall be adjudged guilty of felonious rape;”
. Then, follows the prescribed penalty. True the section further provides that if any person of the age of fourteen years or upwards shall unlawfully and carnally know and abuse any woman child under the age of tep years, with or without her consent, such person shall be adjudged guilty of felonious rape; but this involved no departure from the common law meaning of rape which always and everywhere made want of consent on the part of the female the criterion, and not only the criterion but the one essential element without which there could be no such crime. Giving then to the word rape its technical common law meaning as it occurs in the 74th section of the act, clearly the present case is not brought within the terms of the section, since for all it appears in the evidence, the sexual intercourse, if it took place, may have been with the free consent ,of a female child- capable of consenting inasmuch as she was at the time above the age of ten years. Had the prisoner been tried for felonious rape, except as the evidence showed want-of consent, of course there could have been no com yiction in the absence of proof that the offense was committed without the consent of the party. ¡
So far we have been considering the Act of 1860 as it was originally, and have followed approvingly the very able, argument of the counsel who argued in support of the appeal. ...
• We now come to a feature of the case which must-be allowed controlling importance. By Act of May . 19, 1887, P. L. 128, the provisions of the 91st section of the Act of 1860 were materially changed. The title to this amended or supplemental act reads as follows: - ,
. “A supplement to an act entitled ‘An Act to consoli-. date, revise and amend the penal laws of this Common*161 wealth/ approved the thirty-first day oí March, one thousand eight hundred and sixty, amending the 91st section thereof, defining rape and carnal knowledge of female children, and prescribing the penalty therefor.” As amended by this supplemental act the 91st section of the original act now reads as follows:
“If any person shall have unlawful carnal knowledge of a woman, forcibly and against her will, or who, being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, shall be adjudged guilty of felonious rape, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment by separate or solitary confinement at labor, or by simple im-. prisonment, not exceeding fifteen years.”
The effect of this amendment it will be at once observed is to make something felonious rape that before was not rape, either at common law or by statute, viz, consensual sexual intercourse with a female above the age of ten years and under sixteen years, and punish its commission by a fine not exceeding one thousand dollars and imprisonment by separate and solitary confinement at labor not exceeding fifteen years. As we have seen, an unintentional homicide occurring when one was engaged in the perpetration of a common law rape, was murder. Not so, however, if what the party was then engaged in was a simple misdemeanor, as the prisoner’s offense would have been but for this amendment to the Act of 1860. Under such conditions he could have been convicted of no higher', crime than involuntary manslaughter. Now the question suggests itself, did the legislature in thus creating a new offense and calling it felonious rape, notwithstanding it lacks the one and ónly element — against consent — which distinguished rape from ordinary unlawful intercourse, intend to attach to it a meaning which theretofore attached to common law rape only, thereby making an unintentional
“No person is to be made subject to a penal statute by implication, all doubts concerning their interpretation are to preponderate in favor of the accused”: Bishop’s Criminal Law, sec. 225.
Not only are there no express terms in the amending act subjecting the offender to the punishment prescribed in the Act of 1860, but there is no reference in the former act to the section in the latter which is here sought to be applied. Judged solely by the words employed, the amending act is complete in itself; it defines a new offense; provides for its punishment, and with that it stops.
“The doctrine is that, when an offense is created by statute, and the same statute prescribes the penalty or the mode of procedure or anything else of the sort, only that which the statute provides can be followed”: Bishop’s Criminal Law, sec. 278.
Not only consonant with the rule just stated, but seemingly a corollary to it, we have another rule thus stated in Endlich on Interpretation of Statutes, sec. 325.
“Again, as illustrative of the rule of strict construction, it has been said that while remedial laws may extend to new things not in esse at the time of making the statute, penal laws will not.”
The illustration given is the case of Rex v. Smith, L. R. 1 C. C., 266, 270, where an act made it felofiy to receive with guilty knowledge a chattel, the stealing of which was felonious either at common law or undér. the act, and the subsequent act made a partner who stole partnership property liable to conviction for the stealing as though he had not been a partner; it was held that to receive such stolen property was not an offense under the earlier act. The same rule may be fouud in 26 Am. & Eng, Ency. Law, 600, where it is thus stated: •.
*164 “It has been, held that penal laws should not be extended to new things which were not in being at the time when the laws were made, nor to offenses created and defined by subsequent statutes.” The authorities cited in the note to the text embrace English and American cases, and included among the latter is one of our own, Com. v. Wells, 110 Pa. 463, where this is said:
“And it was long ago ruled that a penal act of Parliament cannot be extended to things that did not exist when the statute was made.”
Of course the reference in these rules is to an extension of an act by implication. When the extension is by express words of a later statute no question can arise; it is only in the absence of express words extending the earlier statute that the rule applies. The latter is the case here; and this it is that makes construction necessary in order to ascertain the legislative intent. In brief, we have here an offense which was not within the purview of the 74th section of the Act of 1860, our criminal code, and was therefore not punishable thereunder, but is made an offense by amending another section of the code without referring in any way to the section of the code which attached additional penalty to a common law offense — not what we have here, but denounced under the general name — when followed by unintended homicide, the amending act providing its own appropriate penalty for the new offense it creáted. Can the 74th section, unamended, be extended to -embrace the new offense thus created? This presents the whole question. If it can be so extended, it must be by implication, and that as we have' seen, where the statute involved Is penal, is forbidden. This may be said to be strict construction, but it is to be remembered that we are dealing with an issue of life or death, and strict construction is imperatively required, not to defeat the ends of justice, not to avert a merited doom, but simply to ascertain the legislative purpose which in this case, as we have tried to show, can be discovered only ás we resort to the arti
The judgment is reversed.