67 Pa. Super. 497 | Pa. Super. Ct. | 1917
Lead Opinion
Opinion by
The defendant was indicted for seduction and fornication and bastardy, and, having been found guilty, was placed upon probation for one year as to the first charge and sentenced to make certain payments as to the second.
. It appears from the evidence that defendant met a girl of good repute, .under twenty-one years of age, in August, 1909. She testified that he became engaged to her. about three months later and bought her an engagement ring; that, in reliance upon his promise of marriage, she per
A warrant was issued April 7, 1911, charging defendant with seduction, upon an information made by her father before Justice of the Peace Clarke. This warrant, and an alias warrant issued in 1912, Avere not served because defendant had left the State. February 2, 1913, a pluries warrant was issued, upon the original information, by A. T. Lorch, a successor to Clarke. Loreh arrested the defendant on July 6, 1916. He denied his identity when arrested. He had visited the neighborhood several times, during the two years immediately preceding the trial, under an assumed name, and had denied •that he was Charles Weber.
At the trial defendant testified that he -had not seen the girl during the month of July, 1910. He produced witnesses to prove that he had resided, worked, and voted, in Pittsburgh, twelve miles from the girl’s home, and about the same distance from his own, for three years before his arrest.
Appellant’s principal contention is that the court below erred in charging the jury “that because the defendant had upon a few occasions denied his identity, this .was sufficient to justify them in finding that this abiding within the County of Allegheny and State of Pennsylvania, during the two years and more prior to the date of the finding of the indictment did not make him during that period ‘an inhabitant of the State of Pennsylvania nor an usual resident therein’ within the meaning of the Act of Assembly.”
The other objections of the appellant are without merit. His arrest was, so far as the record indicates, proper. It would not have been possible to amend the information so as to incorporate the exception to the statute when the appellant was arrested under the piuries warrant. He could be held before the justice only for the offense charged in the information and war
There remains the question whether the court below erred in charging the jury that under the facts they might find defendant was not an usual resident of the State. The seventy-seventh section of the Act of March 81, 1860, P. L. 450, provides, inter alia: “All indictments ......for......misdemeanors......shall be brought within two years......: Provided, However, That if the person against whom the indictment shall be brought or exhibited shall not have been an inhabitant of this State, or usual resident therein during the said respective term during which he shall be- subject and liable to prosecution as aforesaid, then such indictment shall and may be brought and exhibited against such person, at any period within a similar space of time, during which he shall be an inhabitant of, or usual resi-. dent, within the State.......”
. The burden of showing that defendant was not an usual resident rested upon the Commonwealth: Blackman v. Com., 124 Pa. 578, but the question before us, while considered, was not there decided. The Commonwealth satisfied the burden when it showed that defendant had absconded in 1910; that the officers had diligently attempted to find him, and that he succeeded in avoiding arrest by denials of his identity, frequent changes of boarding place, and receiving his mail at the general delivery.
Every statute must be construed with reference to the object intended to be accomplished: Turbett Twp. Over
The words “usual resident” do not refer to defendant’s place of residence, but to his manner of residence. “Usual,” when used in this sense, means “customary” or “common”: Graham v. Com., supra, at page 258. To be an “usual resident,” therefore, one must conduct himself in accordance with his customary mode of life. One might commit an offense and move to another part of the State in an open manner, or even go from the State, if in military service, and not be barred from claiming the benefit of- the statute: Graham v. Com., supra; but this is not so where the offender flees from justice and, subsequently, by fraud and concealment, succeeds in avoiding arrest. Unless we so construe the act the words “usual resident” become meaningless. If the offender lives outside of the State he is a nonresident, and if he remains in hiding or concealment within the State he is an “inhabitant”, but not an “usual resident.” The question is primarily one of fact, and was properly submitted to the jury.
While the analogy is not exact, owing to different phraseology in the statutes, the decisions in other jurisdictions are in accord with our conclusion: 12 Cyc. 256.
The judgment is affirmed and the record remitted for purposes of execution.
Dissenting Opinion
Dissenting:
The misdemeanor with which the defendant was charged was committed about six years before the indictment was found. He was therefore, entitled to the protection of the limitation provided by the seventy-seventh section of the Act of March 21, 1860, P. L. 450, unless he was not “an inhabitant of this State or usual resident therein” during the term for which he was liable to prosecution. It is not alleged that he was absent from the State; his home was and continued to be in Allegheny County. He was, therefore, an inhabitant of this State and the statute was a bar to his prosecution. The learned trial' judge, however, gave a construction to the words “or usual resident therein” which permitted the jury to inquire as to his mode of living in the county and to determine whether he lived “openly and aboveboard.” This we think is not the sense in which the words are used in the statute. They refer to the whereabouts of the accused. The phrases are in the alternative, “an inhabitant of this State or usual resident therein.” A person might reside in: the State who was not an inhabitant thereof. The word “usual” qualifies the term “resident” and. relates to the place of abode — the customary place of living — and not to the manner of life. The conclusion seems unavoidable that if the accused was an inhabitant of Allegheny County at the time the offense was committed and continued to be an inhabitant thereof he could not be lawfully convicted because of the lapse of time between the commission of the offense and the finding of the indictment. And even if not an inhabitant of the State he would be protected if he were a “usual resident” ; that is, if he commonly or ordinarily resided therein. I would reverse the judgment, therefore, for the reason stated.