Opinion by
Rice, P. J.,
The indictment in this case was returned a true bill on October 8, 1895. The alleged offense was committed on May 6, 1893, in the borough of Pottstown. The commonwealth introduced evidence tending to show that the defendants rented a room for their criminal purpose, but were not usual residents of the borough; that immediately after the commission of the offense a warrant was sworn out and placed in the hands of an officer; that search was made in the vicinity, and that messages were sent to Philadelphia, Pittsburg, Reading and other places, all without result. In January, 1894, the prosecutor and the officers in charge of the case received information— which was true—that the defendants were in Philadelphia, under arrest. The evidence upon this subject is not very clear, but it would seem that they were under arrest on another charge. The defendants introduced no evidence as to their residence or whereabouts during the period between May 6,1893, and January, 1894.
Our statute, after- prescribing the time within which indictments must be found—which in this case was two years—makes'this exception : “ provided, however, that if the person against whom such indictment shall be brought or exhibited shall not have been an inhabitant of this state or usual resident therein during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of or usually resident of the state.”
When an indictment is found more than two years after the perpetration of the offense, it is incumbent on the commonwealth to show that the case is within the exception, and so the learned judge clearly instructed the jury. But the exception was introduced into the statute for a purpose which is not to be defeated by construing it to require the commonwealth to do an impossible thing. There is only one way in which it could be conclusively shown that a criminal was absent from the state during the statutory period, and that is by proving that he was in some other state or foreign country. But, in most cases, where he has fled to avoid arrest, and conceals himself, it would be impossible to furnish such proof. It was to [233]*233meet such cases, that is, cases of flight and concealment, that the proviso was introduced into the section, and it is fair to conclude that the legislature did not intend to require the commonwealth to furnish that full and conclusive proof of non-residence which the defendant, by his act, has put it out of the power of the commonwealth to furnish. The most that can be required of the commonwealth is to furnish evidence of facts from which, in the absence of evidence on the part of the defendant as to his residence, a jury may fairly infer that he was not an inhabitant or usual resident of the state during the period in question. It is sometimes said that, when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. This is a principle not unknown in criminal evidence, but it is not a rule of universal application, and we do not hold that it applies here. It is a rule, however, of very common application in criminal as well as in civil cases that where a party has the burden of proving a negative, and the subject-matter lies peculiarly within the knowledge of the -opposite party, full proof is not required, but such as renders the existence of the negative probable is in some cases sufficient to change the burden: 1 Wharton, Ev., 368. A large number of such cases will be found collected in 1 Greenleaf, Ev., 78, concerning which the learned author says: “ In these and like cases, it is obvious that plenary proof on the part of the affirm-ant can hardly be expected; and therefore it is considered sufficient if he offers such evidence as, in the absence of counter testimony, would afford ground for presuming that the allegation is true.”
The case of Blackman v. Commonwealth, 124 Pa. 578, well illustrates the general principle, and is exactly in point. It was there held that where the commonwealth had proved the commission of the offense, the issuance of a warrant for the arrest of the defendant, and his flight, his absence from his usual place of residence in the county and the efforts to learn his whereabouts with a view to his arrest, a prima facie case had been made out. Said Chief Justice Paxson : “ Must the commonwealth go further and prove a negative, that the defendant was not an inhabitant or resident of the state until within two years of finding the indictment ? While he was so effectually con[234]*234cealed that the officers could not find him, must the prosecution prove that his concealment was beyond the borders of the state ? We think not. It would place an unreasonable burden upon the commonwealth; it would require proof of a fact not within the knowledge of its officers, and what is peculiarly within the knowledge of the defendant.”
There is one feature of the case cited worthy of notice, and that is that under the ruling in Commonwealth v. Ruffner, 28 Pa. 259, the statute had run several months before the defendant fled. We make no point of this however; the defendant did abscond before an indictment Could be found.
It is argued that this case is distinguishable from the case cited, because there is no evidence that the defendants absented themselves from their usual places of residence, and there is uncontradicted evidence that they were in Philadelphia from January, 1894, until the time of trial. So far as the present question is affected, we cannot see that there is any real distinction between the, case of one who flees from his known place of residence to escape punishment for his crime, and the case of one who commits a crime in a place where he is a stranger, and flees. If he has a fixed and known habitation, diligent search would include inquiry there. But, if it is unknown, if he is a stranger in the community, it certainly cannot be that the commonwealth is required to ascertain and prove where his residence was, and that he absented himself from it.
The commonwealth having proved that the defendants were strangers in the vicinity; that immediately after the perpetration of the offense they fled, and that they could not be found after due and reasonable search, could .hardly be expected to prove more in the first instance. Whether, under all the circumstances, diligent search was made, was a question of fact for the jury, and it was fairly submitted to them by the court.
Nor do we think that the fact the defendants were found in Philadelphia under arrest, raised a presumption that they were inhabitants and usual residents of that city during the eight months preceding. If they were it would have been an easy matter for them to show; whereas it would be impossible for the commonwealth to give conclusive proof to the contrary in the first instance. There is as much evidence that Pottstown, [235]*235whence they absconded, was their residence, as that Philadelphia was.
Considerable stress is laid on the fact which affirmatively appears that the defendants were in the state and known to be so for the whole period between January, 1894, and October, 1895, when the indictment was found.
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Opinion by
Rice, P. J.,
The indictment in this case was returned a true bill on October 8, 1895. The alleged offense was committed on May 6, 1893, in the borough of Pottstown. The commonwealth introduced evidence tending to show that the defendants rented a room for their criminal purpose, but were not usual residents of the borough; that immediately after the commission of the offense a warrant was sworn out and placed in the hands of an officer; that search was made in the vicinity, and that messages were sent to Philadelphia, Pittsburg, Reading and other places, all without result. In January, 1894, the prosecutor and the officers in charge of the case received information— which was true—that the defendants were in Philadelphia, under arrest. The evidence upon this subject is not very clear, but it would seem that they were under arrest on another charge. The defendants introduced no evidence as to their residence or whereabouts during the period between May 6,1893, and January, 1894.
Our statute, after- prescribing the time within which indictments must be found—which in this case was two years—makes'this exception : “ provided, however, that if the person against whom such indictment shall be brought or exhibited shall not have been an inhabitant of this state or usual resident therein during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of or usually resident of the state.”
When an indictment is found more than two years after the perpetration of the offense, it is incumbent on the commonwealth to show that the case is within the exception, and so the learned judge clearly instructed the jury. But the exception was introduced into the statute for a purpose which is not to be defeated by construing it to require the commonwealth to do an impossible thing. There is only one way in which it could be conclusively shown that a criminal was absent from the state during the statutory period, and that is by proving that he was in some other state or foreign country. But, in most cases, where he has fled to avoid arrest, and conceals himself, it would be impossible to furnish such proof. It was to [233]*233meet such cases, that is, cases of flight and concealment, that the proviso was introduced into the section, and it is fair to conclude that the legislature did not intend to require the commonwealth to furnish that full and conclusive proof of non-residence which the defendant, by his act, has put it out of the power of the commonwealth to furnish. The most that can be required of the commonwealth is to furnish evidence of facts from which, in the absence of evidence on the part of the defendant as to his residence, a jury may fairly infer that he was not an inhabitant or usual resident of the state during the period in question. It is sometimes said that, when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. This is a principle not unknown in criminal evidence, but it is not a rule of universal application, and we do not hold that it applies here. It is a rule, however, of very common application in criminal as well as in civil cases that where a party has the burden of proving a negative, and the subject-matter lies peculiarly within the knowledge of the -opposite party, full proof is not required, but such as renders the existence of the negative probable is in some cases sufficient to change the burden: 1 Wharton, Ev., 368. A large number of such cases will be found collected in 1 Greenleaf, Ev., 78, concerning which the learned author says: “ In these and like cases, it is obvious that plenary proof on the part of the affirm-ant can hardly be expected; and therefore it is considered sufficient if he offers such evidence as, in the absence of counter testimony, would afford ground for presuming that the allegation is true.”
The case of Blackman v. Commonwealth, 124 Pa. 578, well illustrates the general principle, and is exactly in point. It was there held that where the commonwealth had proved the commission of the offense, the issuance of a warrant for the arrest of the defendant, and his flight, his absence from his usual place of residence in the county and the efforts to learn his whereabouts with a view to his arrest, a prima facie case had been made out. Said Chief Justice Paxson : “ Must the commonwealth go further and prove a negative, that the defendant was not an inhabitant or resident of the state until within two years of finding the indictment ? While he was so effectually con[234]*234cealed that the officers could not find him, must the prosecution prove that his concealment was beyond the borders of the state ? We think not. It would place an unreasonable burden upon the commonwealth; it would require proof of a fact not within the knowledge of its officers, and what is peculiarly within the knowledge of the defendant.”
There is one feature of the case cited worthy of notice, and that is that under the ruling in Commonwealth v. Ruffner, 28 Pa. 259, the statute had run several months before the defendant fled. We make no point of this however; the defendant did abscond before an indictment Could be found.
It is argued that this case is distinguishable from the case cited, because there is no evidence that the defendants absented themselves from their usual places of residence, and there is uncontradicted evidence that they were in Philadelphia from January, 1894, until the time of trial. So far as the present question is affected, we cannot see that there is any real distinction between the, case of one who flees from his known place of residence to escape punishment for his crime, and the case of one who commits a crime in a place where he is a stranger, and flees. If he has a fixed and known habitation, diligent search would include inquiry there. But, if it is unknown, if he is a stranger in the community, it certainly cannot be that the commonwealth is required to ascertain and prove where his residence was, and that he absented himself from it.
The commonwealth having proved that the defendants were strangers in the vicinity; that immediately after the perpetration of the offense they fled, and that they could not be found after due and reasonable search, could .hardly be expected to prove more in the first instance. Whether, under all the circumstances, diligent search was made, was a question of fact for the jury, and it was fairly submitted to them by the court.
Nor do we think that the fact the defendants were found in Philadelphia under arrest, raised a presumption that they were inhabitants and usual residents of that city during the eight months preceding. If they were it would have been an easy matter for them to show; whereas it would be impossible for the commonwealth to give conclusive proof to the contrary in the first instance. There is as much evidence that Pottstown, [235]*235whence they absconded, was their residence, as that Philadelphia was.
Considerable stress is laid on the fact which affirmatively appears that the defendants were in the state and known to be so for the whole period between January, 1894, and October, 1895, when the indictment was found. But the question for the court and jury to decide was not, whether there was undue delay in preferring an indictment, but whether it was found within the statutory period, and they had no authority to lengthen or shorten it according to their notions of what would be due diligence under the circumstances of the particular case. If the statute began to. run on the date of the commission of the offense, the prosecution was barred. But if it did not begin to run until the time when, according to the evidence and the implied finding of the jury, the defendants became inhabitants and usual residents of the state, it was not barred. This presents a legal question to which the same answer must be given at all times and under all circumstances, and the question whether under the particular circumstances of the case the finding of the indictment was unreasonably delayed does not enter into it.
If the defendants had successfully concealed their whereabouts for two years, and then had returned to the state, the statute would not have barred the prosecution until two yearn after their return. But, if the jury were warranted in finding, as we think they were, that the defendants were not inhabitants and usual residents of the state during the eight months immediately following the commission of the offense, then during that portion of the statutory period of limitation they were not accessible to justice, within the spirit and intent of the law. As in the case of one who absents himself for the whole period, so in the case of one who absents himself for a portion of the period immediately following the offense, the statute does not begin to run until his return.
The court having instructed the jury fully as to the nature of the charge, and the evidence adduced in support of it, and as to the statute of limitations and what was incumbent on the commonwealth to prove in order to bring the case within the exception, then passed to the evidence as to the identification of the defendants, which, as the learned judge properly said [236]*236was one of the most important questions in the case, and concluded upon this branch by saying: “ You are to determine whether the testimony shows, beyond a reasonable doubt, that the accused are the persons who were engaged in the transaction described by Mr. Jones.” Then, after defining what was meant by the terms, he concluded generally by saying: “ You are to find from all the evidence whether the commonwealth has established their guilt beyond a reasonable doubt.” He did not say that the jury must convict if they had no reasonable doubt of the defendants’ guilt; and it is not to be supposed that they forgot their previous instructions upon the statute of limitations; especially as they were reminded of their duty as to that feature of the case by the answer to the defendants’ second point.
Judgment affirmed.
Reeder, J. dissents.