Commonwealth v. Peach , 170 Pa. 173 ( 1895 )

Per Curiam,

There is no error on this record. The charge of the learned •court below was eminently fair and impartial an d entirely correct. It gave the prisoner the benefit of every consideration to which persons charged with the offense of rape are entitled. The absence of an instruction that the prisoner might have been convicted of fornication if the jury doubted his guilt of the greater charge was not error, because no such instruction was asked for. But the court distinctly charged the jury that if they had a reasonable doubt of the guilt of prisoner of the crime of rape they should acquit him altogether, and as this covered every aspect of his case except that of technical rape, it necessarily included the minor offense of fornication, and was more favorable to the prisoner than would have been an instruction that he might have been convicted of the minor offense. But as the jury did not have any doubt of his guilt on the charge of rape an instruction as to fornication would have been of no avail.

The second assignment of error has no merit. The utmost effect it could have would be to produce a re-sentence. In no view of the case would it be an error upon which the judgment should be reversed. But the last provisb-jof the 74th section of the criminal code applies only to persons sentenced to imprisonment in the penitentiary, whereas this prisoner was sentenced to imprisonment in the Northumberland county prison.

The judgment of the court below is affirmed, and the record is remitted for the purpose of execution.