Criminal Law Commonwealth v Donovan. Illegitimate Child Acts of 1860 and 1917. Prosecution for Support- Statutory A prosecution under the Act of July 11, 1917, P. L. 773, making it a misdemeanor for any parent wilfully to neglect or refuse to support an illegitimate child must be brought within two years from the commission of the act of intercourse that resulted in the birth of the child. This Act is in direct conflict with the Act of Limitations. Motion for New Trial. No. 836 January Sessions, 1918. Municipal Court, Philadelphia County. Charles Edwin Fox, Assistant District Attorney, for plaintiff. Edward P. Gallagher, for defendant. BONNIWELL, J., October 31, 1919.-The defendant herein was indicted under an Act of Assembly approved July 11, 1917, P. L. 733, enacting: "That any parent who shall wilfully neglect or refuse to contribute reasonably to the support and maintenance of a child born out of lawful wedlock shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $500, or imprisonment not exceeding six months, or both, with or without hard labor, in the discretion of the court. Section 2. Proceedings under this Act may be instituted upon complaint made, under oath or affirmation, by the parents of such child. Section 3. This Act shall apply whether such child shall have been born within or without this Commonwealth." The indictment set forth that he was "the parent of a child born out of wedlock, to wit, the father of a certain male child born in the County of Philadelphia aforesaid on September 12, 1913." The information was laid November 23, 1917; the indictment found January 22, 1918. Upon being tried, the defendant was found guilty, and motion for a new trial has been made, and the question of the constitutionality of the - proceedings raised. The act in question, by indirection, repeals section 77 of the Penal Code Act of March 31, 1860, P. L. 427, which provides: "All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor * * * shall be brought or exhibited within the time limitation hereinafter expressed, and not after; * for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed." The wisdom of this statutory provision is so manifest as to make argument needless. It is essential to the well-being of a community that prosecutions should not be unnecessarily delayed. Such delays do not often take place from worthy motives. Charges are often kept suspended over the head of the accused to subserve the ends of the accuser, and the end sought to be obtained by this particular act is one fraught with the utmost danger to social life and to domestic happiness. It is the experience of the courts that the defendant against whom the charge of fornication and bastardy is laid can only avoid conviction, if innocent, with the utmost difficulty. The tendency of the juries is a marked inclination to conviction in all such cases, and this condition arises not only from the sympathy which is usually felt towards the woman burdened with an illegitimate child, but also from the very nature of the charge, the manifest difficulty of disproving the allegation of the mother of the intercourse which is the basis of the crime. If, however, the charge is not to be brought within the statutory period of two years, but the bars are to be thrown down in this extraordinary Commonwealth v Donovan. fashion, so that, as in this case, the period, of more than four years has elapsed before a prosecution was instituted, then it would naturally follow that a prosecution might be brought within the period of fifteen years and the utmost injury done to family life, as well as the greatest incentive to blackmail and extortion afforded. The act in question is one of those ill-considered, unbalanced legal inventions of short-sighted sociologists, who, with their minds concerned solely in the correction of isolated cases of merit that might be remedied through the means of this act, are oblivious to the disastrous consequences that its general application would cause throughout the State of Pennsylvania. The cunning subterfuge involved in the act, whereby the charge of intercourse is waived and the bastardy charge avoided in order to make it appear that this is a social amelioration act, illustrates only the adroitness of the prime movers in procuring the passage of so improper a piece of legislation, and does not in any way fortify its soundness. I am of the opinion that the act is in direct conflict with the act of limitations, and, therefore, null and void, in so far as it relates to any prosecution not commenced within the statutory period of two years from the commission of the act of intercourse that resulted in the birth of the child. Motion for new trial hereby granted. Indictment quashed and defendant discharged. Tillman v Thomas. Attorney and Client-Warrant to Confess Judgment- Lease--United States A lease with warrant to attorney to confess judgment in a lease in case of default by the lessee need not bear a revenue stamp as required by the United States Revenue Act of 1918, Title VIII, Schedule 4, Par. 12. Such a warrant is not within the meaning of the Act. When an attorney appears in court he appears as an attorney-at-law, and not as an attorney-in-fact, and his authority so to appear is presumed. Rule to Strike Off Judgment in Ejectment. No. 3723 September Term, 1919. C. P. Philadelphia County. J. A. Gilligan, for plaintiff. Frazier & Frazier, for defendant. FERGUSON, J., January 2, 1920.-This is a rule to strike off a judgment in ejectment entered by amicable action under a lease. The defendant was represented by an attorney-at-law, who appeared under the authority granted in the lease. The rule is based upon the facts that the copy of the lease filed does not show that a revenue stamp in the sum of 25 cents was affixed, and it is contended for that reason the judgment is invalid. Our attention is called to Title VIII, Schedule A, Par. 12, of the United States Revenue Act of 1918, which provides as follows: "Power of attorney granting authority to do or perform some act for or in behalf of the grantor, which authority is not otherwise vested in the grantee, 25 cents." It is not suggested that a contract of lease requires a stamp. The contract between the parties is, therefore, valid and binding. It provides that in case of default by the lessee, any attorney-at-law is authorized to enter an appearance and confess judgment in ejectment. We do not regard this Tillman v Thomas. authority as a power of attorney in the ordinary meaning of the words. An attorney-at-law is not obliged ordinarily to secure a warrant of attorney authorizing him to appear in court for a client. When he does appear, his authority is presumed. Whether he appears as a result of a request made formally or informally, he does so as an attorney-at-law and not as an attorney-in-fact. That this is the reasonable construction of the act appears in the construction placed upon it by the Department of Internal Revenue. Regulations No. 55, relating to stamp taxes on documents, articles 140 and 141 provide that the clause in a judgment note or promissory note authorizing confession of judgment is not taxable as a power of attorney, and a warrant of attorney embodied in a lease is also not taxable. The rule is discharged. In re Vaccination. Osteopaths—Certificates-School Children—Act of 1919, P. L. 399. Osteopaths licensed to practice in Pennsylvania are not "physicians" and have no right to vaccinate nor issue certificates thereof, nor have they the right to issue certificates setting forth that a child has been properly vaccinated or vaccinated in accordance with the regulations of the health department. Your request of the 5th inst., for an opinion as to whether or not osteopaths licensed under the Act of 1919 have a legal right to vaccinate and issue certificates thereof, has been received. In my opinion osteopaths have no right to vaccinate nor issue certificates thereof, nor have they the right to issue certificates setting forth that a child has been properly vaccinated or vaccinated in accordance with the regulations of the Department of Health. The Act of 1919, P. L. 399, provides that children cannot be admitted to school except upon a certificate signed by a physician, setting forth that such child has been vaccinated and that a subsequent examination reveals a scar indicating successful vaccination, or that vaccination has been performed according to the rules and regulations of the Department of Health. The word "physician," used in the Act, does not include osteopaths. Physicians and surgeons are licensed to practice medicine and surgery by one Board of Examiners and osteopaths are examined by an entirely different Board, and, although repeated efforts have been made at various times to accomplish it, no law has ever been passed classifying osteopaths as physicians. Very truly yours, B. J. MYERS, Deputy Attorney General. Dunbar Township Road. Roads and Highways New Location Starting Point Plan The fact that the beginning point of a proposed new road is in the center of an old road, from which old road it was proposed by the petitioners the new road should depart almost at right angles, and that instead of leaving the old road at the beginning point designated in the proceeding the new road recommended by the re-viewers begins at said beginning point and follows the old road on two of the courses thereof for a total distance of one hundred and twentyeight feet, and then leaves the old road practically at right angles and proceeds to the point of ending designated in the proceeding, all of which is shown clearly on the plot or draft of the proposed new road attached to and made a part of the report of the re-viewers, does not invalidate the proceeding. Exceptions to Report of Re-viewers. No. 1 June Sessions, 1917, Road C. P. Fayette County. Docket. H. S. Dumbauld, for exceptions. H. George May, contra VAN SWEARINGEN, P. J., December 31, 1919.-Five exceptions were filed to the report of re-viewers, but only the third was pressed at the argument, and it is the only one that need be discussed. It alleges that "the first two courses and distances, as set forth in the report of the re-viewers, are not actually part of the new road recommended by the said report, but are in fact courses and distances measured from the beginning point, as set forth in the original petition, along the route of the old established road in which the beginning point, as set forth in said petition, is located." The facts are that the beginning point of the proposed new road is in the center of an old road, from which old road it was proposed by the petitioners the new road should depart almost at right angles. Instead of leaving the old road at the beginning point designated in the proceeding the new road recommended by the re-viewers begins at said beginning point and follows the old road on two of the courses thereof east for a total distance of one hundred and twenty-eight feet, and then leaves the old road practically at right angles and proceeds to the point of ending designated in the proceeding, all of which is shown very clearly on the plot or draft of the proposed new road attached to and made a part of the report of the re-viewers. "The Act of April 23, 1909, P. L. 142, requires that a petition for the laying out of a road shall fix definitely the point of beginning and the point of ending, by giving the exact distance from an intersecting public road, and that a copy of the report and draft upon confirmation shall be certified to the State highway department. The purpose of the Act is to give that department the information required in order to have a complete system of the roads of the Commonwealth. Where a reference to the map submitted in the case removes any doubt as to the identity of the road, and the termini therein referred to, the requirements of the Act are substantially complied with." Such was the ruling in Roaring Brook Township Road, 72 Pa. Superior Ct., 447, and it is controlling in this case. And now, December 31, 1919, the exceptions to the report of the reviewers are overruled and dismissed, and the report of the re-viewers is confirmed. In re Ballots. Elections Party Ticket-Individual Votes- -Act of July 9, 1919, P. L. 829. The Act of July 9, 1919, P. L. 829, made a radical change in the method of voting at a general or municipal election. Where a ballot marked with a cross-mark (X) in the party square also contains a cross-mark opposite the name of one of two or more candidates on the same party ticket, for the same office, every candidate of that party will receive one vote, except the candidates for the office which the voter marked individually. As to that office, only the candidate whose name was followed by the cross-mark (X) receives a vote. OFFICE OF THE ATTORNEY GENERAL Harrisburg, Pa. Hon. Cyrus E. Woods, Sir: Secretary of the Commonwealth, Harrisburg, Penn'a. December 15, 1919. There was duly received your communication of the 3rd inst. inquiring to be advised how a ballot marked as follows should be counted: "The voter makes a cross-mark (X) in a party square in the straight party column on the ballot and also makes a cross-mark (X) opposite the name of one candidate of the same party for an office where two are to be elected." The answer to the question involves the interpretation of the Election Law approved July 9, 1919, P. L. 829, which is the last amendment of the twenty-second section of the Act of June 10, 1893, P. L. 419. This is the section of our election law which provides the method of preparing and marking the ballot at the election, as distinguished from the primary. Since 1893, the Acts of Assembly have provided two methods of voting, the one where the voter desired to vote for all the candidates of a particular political party; and the other where he desired to vote for particular candidates. In the first case, the simplest method of expressing his intention was by marking in the party square; in the second case, it was necessary to place the cross-marks after individual names. These methods were mutually exclusive. When a voter had placed a cross in the party square he had exhausted his provilege of voting. See Gearhart Township Election, 192 Pa., 446; and Dailey's Appeal, 232 Pa., 540. No further mark ing was allowed unless the voter wished to mark the names of all his party nominees in addition to marking in the same party square, or unless there were two officers to be elected and only one name was printed in the party designation, in which case the voter might vote for the candidate of another party. Pfaff v Bacon, 249 Pa., 297. The Act of 1919 made a radical change in the law by the following language: ** * * Provided, That the voter may make a cross-mark in the appropriate square, opposite the name of the party of his choice, in the straight party column on the left of the ballot, and may also make a crossmark in the square to the right of any individual candidate whom he favors. In such case his vote shall be counted for all the candidates of the party in whose straight party column on the left of the ballot he placed such cross-mark, except for those offices for which he has indicated his choice by marking in the squares to the right of individual candidates, and his vote shall be counted for such individual candidates which he has thus particularly marked, notwithtstanding the fact that he made a mark in the straight party column on the left of the ballot: Provided further, That in any case where more than one candidate is to be elected to any office. the voter shall, if he desires to divida his vote among candidates of different parties, make a cross (X) mark in the appropriate square, to the |
