Stevick v. Commonwealth , 78 Pa. 460 ( 1875 )

Mr. Justice Woodward

delivered the opinion of the court May 31st 1875.

That counts for felony and misdemeanor may be properly joined in an indictment, has been established by an unbroken series of decisions of this court. Such a joinder is now always permitted except where the offences are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to tend to deprive the defendant of some legal advantage: Henwood v. Commonwealth, 2 P. F. Smith 424.

The offer of the evidence of the prisoner was properly rejected. The fact that the indictment contained a count for misdemeanor did not make him competent, because it contained also a count for felony. In such a case, the advantage of the Act of the 3d of April 1872, can probably only be secured by asking that the several charges may be separately tried. The decision in Harman v. The Commonwealth, 12 S. & R. 69, seems to indicate the propriety of some such course. It was said there that “ where two offences are charged, if the defendant can make it appear that this mode of proceeding will subject him to unreasonable difficulty or embarrassment on his trial, the court have it in their power to protect him by quashing the indictment or compelling the prosecutor to elect on which count he will proceed and discharge the defendant from the other.”

If the sentences selected from the charge on which the fourth and sixth assignments of error are based, were alone in view, there would be some foundation for the complaint that the court had usurped the functions of the jury. But the charge is to be considered not in disjointed fragments, but as a whole. The elements of the crime of rape were stated, the evidence was submitted with adequate accuracy, and the jury were left to say whether, under that evidence, the charge against the prisoner was made out. That it was not the intention of the court to lay down a legal rule for the decision of the cause by saying that “ a girl of tender years could be excused” for failing to make outcry, is manifest from the instructions subsequently given. “ Then,” the court said, “ did this girl consent ? If she did not, and the prisoner forced her, and prevented her struggles and cries by threatening violence to her person — great bodily harm — and thus he succeeded in penetrating her person, he is guilty of rape, and you should convict.” In the same way, the statement that the evidence of the prosecutrix, if believed, made out the full charge of rape, is to be taken in connection with the language of the court in later portions of the charge, by which the facts were submitted to the uncontrolled discretion of the jury. The remaining assignments, except the last, relate to questions that were legitimate subjects for discussion on a motion for a new trial in the court below, but are not open for review on a writ of error.

The twelfth assignment asserts that the sentence was unauthorized, and is illegal and void. No reason is set out in the paper-book for this allegation. It does not appear t.hat the attention of the judge who imposed the sentence was called to the error that is charged ; and there would be hazard of mischief and mistake if this court were to undertake to grope in the record for the grounds on which the allegation rests.

Judgment affirmed.