66 Pa. Super. 285 | Pa. Super. Ct. | 1917
Opinion by
The argument in behalf of the appellant covers the subjects of complaint set forth in four assignments of error. The first relates to the admission of an ante mortem statement made by the young woman on whom as charged in the first count of the indictment the abortion was committed. The learned trial judge considered the statement competent evidence but submitted to the jury the question whether it was made in the belief of impending death. That it was admissible under the Act of June 26, 1895, P. L. 387, we have no doubt. It was made the same day and a short time before the young woman died. It recites the object of her visit to the office of the defendant, describes his actions with reference to her on each of the two visits which she made to him and the results immediately following the last visit. She was shown to be of sound mind at the time the statement was made and the evidence that she was under the impression she could not live was sufficient to render
The withdrawal of the second count of the indictment before judgment with the permission of the court was in accordance with abundant authority. The entering of a nolle prosequi is at common law a prerogative of the executive and may be entered at any time before judgment. It was developed in the progress of the trial that the offense charged in the second count was included in that charged in the first count; it was proper, therefore, that the second count be withdrawn. If that had not been done however, it would have been competent for the court to have pronounced judgment on the first count alone. There is no doubt that where a conviction is on several counts the court may pass sentence on one and disregard the others: Henwood v. Com., 52 Pa. 424; Harmon v. Com., 12 S. & R. 68. The defendant was in no way prejudiced by the withdrawal of the count and has no cause of complaint that the jury was not permitted to pass on that also,
The judgment is affirmed and the record remitted to the court below to the end that the sentence of the court
may be carried into effect.