Commonwealth v. Adams

Citations

• 2 Pa. Super. 46
• 1896 Pa. Super. LEXIS 10

Syllabus

<p>Criminal law — Practice, O. & T. — Indictment—Murder—Assault and battery.</p> <p>The right upon an indictment for murder, to convict the defendant of assault and battery as a constituent misdemeanor, and included in the felony is by implication forbidden by the act of March 81, 1860.</p> <p>Applying the legal maxim expressio unius exclusio alterius to the construction of this statute, it is equivalent to the direction by the legislature that upon trial of any indictment for murder and manslaughter there can be no conviction for assault and battery.</p> <p>Murder — Conviction for assault on indictment for murder improper.</p> <p>Upon full deliberation and after careful consideration of all the authorities it is held by the Superior Court that not only on a trial for assault and battery in an indictment for murder is conviction for assault and battery forbidden by statute, but that upon principle it is unfair and unjust to the defendant. It deprives him of the opportunity and right to settle the misdemeanor as conferred by sec. 9, act March 31,1860, P. L. 482; it compels him to defend without notice against murder, manslaughter, assault with attempt to commit murder and, finally, simple assault and battery, and it follows that his rights may be materially affected by his trial for a constituent misdemeanor, of the nature of which he had no notice, and which he had a legal right to settle if lie had had notice.</p>