Commonwealth v. Ruffner

| Pa. | Jul 1, 1857

The opinion of the court was delivered by

Lewis, 0. J.

It is unnecessary to cite authority to show that in an indictment for fornication and bastardy, fornication is regarded as the offence charged. The bastardy is only one of its usual consequences. This principle is fully recognised by Chief Justice Tilghman in Duncan v. The Commonwealth, 4 S. & R. 451. Where the offence of fornication was committed two years before the commencement of the prosecution, it is barred by the Act of Limitations of 10th March, 1852, although the birth of the illegitimate offspring took place within two years from the prosecution.

It is suggested that the statute should not begin to run until after the birth of the child, because of the difficulties in discovering and prosecuting the offender at an earlier period. Crimes are generally committed in secret, and if the difficulties in discovering them arrested the running of the statute, it would be rendered almost nugatory. No such exception is inserted, and we cannot legislate on the subject. The difficulty in prosecuting before the birth of the child, has nothing in it. The practice is universal to commence the prosecution as soon as the fornication and its probable consequences are suspected. After arresting the offender and securing his appearance to answer the charge, the cause is continued from term to term until the birth of the child.

In actions brought for the recovery of money due on simple contracts, it was originally held that the defendant might take advantage of the statute of limitations without pleading it; and where the jury under the general issue found specially that the action was brought six years after the cause of action accrued, the court gave judgment for the defendant on the special verdict: Brown v. Hancock, Cro. Car. 115; Sherwin v. Cartwright, Butt. 109. But the exceptions in the statute, and the leaning of the courts against it afterwards, induced them to adopt the rule that a defendant in an ordinary civil suit could not have the benefit of the statute without pleading it: Lee v. Rogers, 1 Lev. 110. But Serjeant Williams, in his note (6) to Hodsden v. Harridge, 2 Saund. 176, says that this is an exception to the rule; and accordingly in actions on penal statutes, the defendant may take advantage of the statute on the general issue, and need not plead it: Hodsden v. Harridge, 2 Saund. 62; Lee v. Clarke, 2 East 335. We see no reason why the defendant in an indictment should not have equal privileges with a defendant in an action for a penalty.

In this case the question seems to have been tried, without objection, under the general issue. If the objection had been made on the trial, it might have been cured by an amendment. It would therefore be unjust to permit the plaintiff in error to start this point, of pleading in the court of review. Besides, although the general rule is that time is not material in setting forth,offences, jet where the indictment lays an offence to have been committed within two years before the commencement of the prosecution, and the special verdict negatives this allegation by finding that it was committed more than two years before the prosecution, it cannot be said that the defendant is found guilty in manner and form as he stands indicted, provided that the law of the case makes the time material. And it cannot be doubted that time is material in this case. The law expressly declares that “ no indictment shall be commenced or prosecuted” for this offence, after the expiration of two years from the time of committing it.

Judgment affirmed.