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In the Court of Quarter Sessions of Lackawanna County No. 28, April

Sessions, 1903.

RULE FOR DISCHARGE FROM CUSTODY.

In Re: Petition of County Commissioners for the Discharge of Michael Roche.

The responsibility under the Act of 6th of May, 1887, relating to the discharge of prisoners without proceedings under the insolvent law, in the first instance, rests with the county commissioners. The act leaves the matter finally in the discretion of the court who may make the. order "upon such terms as the court may impose."

Mr. C. C. Donovan, County Solicitor, for plaintiffs.
Mr. D. J. Reedy for defendant.

Opinion by Edwards, P.. J., January, 1905.

The prisoner, Michael Roche, was convicted of the offense of obtaining money under false pretences. He was sentenced to pay a fine and costs and to make restitution of the money obtained from the prosecutor. The defendant admitted that he received the money, but he claimed that the substitution of one lot for another as security was an honest mistake.. While we agreed with the jury in their verdict, we decided when sentence day came to give the defendant the opportunity to rectify the mistake, or, in other words, to be honest. He was, therefore, sentenced to pay a fine and costs and to make restitution.

After the prisoner had been in custody only fifteen days his attorney presented the petition of the county commissioners praying for the discharge of the prisoner on payment of the fine. We declined to make the order at the time the petition was presented because to do so would be in effect to nullify the sentence. The petition was presented under the act of 6th of May, 1887, relating to the discharge of prisoners without proceedings under the insolvent law. The responsibility of carrying out the provisions of this act in the first instance rests with the county commissioners. It rests in their discretion whether or no in any particular case the relief provided by the act should be allowed. The statute was not intended to operate as a general jail delivery in all cases. Its purpose is to relieve the county and not convicts. After a petition under the statute is presented; or, in other words, after the commissioners have exercised their discretion, it does not follow

that the order of discharge shall be made as a matter of course.

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The act leaves the matter finally in the discretion of the court who may make the order "upon such terms as said court may impose.' The court may refuse the order of discharge and compel the convict to proceed under the insolvent law; or, it may impose other terms in making the order. We know of no reason why the order should not provide that the convict shall not be discharged until he has been in custody a certain length of time. It does not follow that because a person would be entitled to be discharged under the insolvent laws that he is, therefore, entitled to his discharge under the act of 1887 when, a petition under that act is presented. In one case he is entitled to his discharge as a matter of right; in the other case, only as a matter of grace or discretion.

Applying these principles to the case at bar we feel that in the exercise of proper judicial discretion the order of discharge should now be made. The prisoner was sentenced on October 22, 1904, and the rule to show cause why he should not be discharged on the petition of the commissioners was granted November 7, 1904. The prisoner has been in custody since that time. While we consider that the punishment suffered by him has been incommensurate with the gravity of the offense of which he was convicted, nevertheless, we feel constrained at this time to order his discharge. The rule is made absolute.

The right to assess a succession tax at the death of the testator upon the corpus of the estate is denied in People vs. McCormick (Ill.) 64 L. R. A. 775, where the property is devised in trust which shall continue for a period of twenty years, during which time annuities shall be paid to certain persons named, among whom the estate shall be distributed at the expiration of that period if they are alive at that time, and, if they are not alive, among persons whom they shall appoint and certain persons named by the testator, under a statute authorizing a tax against a person who "shall become beneficially entitled, in possession or expectancy, to any property or income thereof," when the tax rate differs according to the relationship to the testator of the person who ultimately becomes entitled to the property.

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