The opinion of the court was delivered, January 5th 1874, by
Agnew, J. —The only serious error alleged in this record is the continuation of the trial of the prisoner after the expiration of the regular term of the Court of Oyer and Terminer. The jury received their charge on Saturday, the last day of the term, and being unable to agree, did not deliver their verdict until the following Tuesday. It is argued, that, though the trial was continued without intermission from the 18th of February, and the testimony closed only Saturday the 1st of March, the end of the term should have ended the trial without a verdict. If this be so, an extraordinary casus omissus has existed from the foundation of the state, for doubtless many murder trials have outlasted the fixed terms of the courts, which in many counties have been for a single *468week. The argument rests on the want of an express statute to prolong the term, in such a case of necessity, and on the fact that such a provision exists in reference to the Quarter Sessions: Act 14th April 1834, § 49. But the organization and powers of these courts do not stand on a precisely similar footing; and the argument from analogy has no real bearing. The organization and powers of the Quarter Sessions were discussed by Justice Coulter in Mills v. Commonwealth, 1 Harris 627. I shall not refer to them myself. So far as that case is cited as authority for this, I need only say it has no relevancy, the trial there having been commenced as well as finished at an adjourned court, contrary to the terms of the Act of 14th April 1834, § 51, forbidding the transaction of business requiring the intervention of a grand or petit jury. This has been remedied by the Act of 22d April 1850.
Before the Act of 1834 the Oyer and Terminer was not held at fixed periods, but only when the business required, and the only authority for fixing the time was a precept under the hands and private seals of the judges. Emergencies may arise, says G. J. Tilghman, requiring such courts to be held on a sudden. These points are all determined in White v. The Commonwealth, 6 Binney 184-5, and were recognised by the Commissioners of Revision in their report upon the Act of 14th April 1834, 2 Park & Johns. Dig. 797. They therefore provided that the Courts of Oyer and Terminer should be held statedly at the several times appointed for holding the Courts of Quarter Sessions, although no special precept shall have been issued for that purpose: § 58. The power of the judges to issue special precepts for Courts of Oyer and Terminer, to be held from time to time, as emergencies might require, was ' continued, “ in the manner hitherto practised and allowed in this Commonwealth§ 59. This power enables the judges to hold jury trials at any time between terms, by precepts, as they were formerly accustomed to do. It is clearly a greater power than that of adjournment from day to day, which needs no precept to continue that which is already lawfully begun, and includes the inferior power to continue from day to day when required by the necessity of the case. Omne majus continet in se minus. This acquires greater 'force from the express power conferred on all the courts in the sixty-third section: “ In case of the non-attendance of a competent number of judges to hold any of the courts aforesaid, at the day and place appointed by law for holding the same, also in case of the subsequent interruption of any court by the sickness, death or absence of any of the said judges, orly any other cause, any judge shall have power to adjourn the court from day to day until a quorum be present, or otherwise, as he shall deem expedient.” If one judge has this power of continuance in a case of emergency, it is certainly quite as reasonable that all the judges should have *469power to continue from day to day when a case of necessity outlasts the term. These inferences arise naturally from the acknowledged powers of the judges of the Oyer and Terminer. The power to continue has the authority of analogous cases. Thus in Williams v. Commonwealth, 5 Casey 102, where a prisoner was tried at the stated term, it was held that he was lawfully sentenced to death at an adjourned court. In that case the adjournment w(as on the simple order of adjournment and not by precept. In effect the order of adjournment in open court is a precept; and this case is stronger, for here the adjournment was from one day to the next; while there the adjournment was over to a distant day; and the power to continue in trial is more warranted than to adjourn to%a distant day to sentence. Necessity also is a just ground of continuance : Clark v. Commonwealth, 5 Casey 129; McCreary v. Commonwealth, Id. 323. In the latter case it was said the constitutional provision that no one shall be put twice in jeopardy “is not so inexorable as to shut out a practical construction demanded by necessity and the safety of the community.” In Commonwealth v. Jailer of Allegheny County, 7 Watts 366, it was also said that there is no doubt that necessity, either moral or physical, may raise an available exception to the letter of the Habeas Corpus Act; and see Commonwealth v. Sheriff, 16 S. & R. 304, and Ex parte Walton, 2 Whart. 501. The decision in the Election Cases, 15 P. F. Smith 34, is also in point. There by the act the contest is to be determined at the next term; but it was held that the expiration of the term while the case was in progress did not strike down the jurisdiction of the court.
We are of opinion, therefore, that the jurisdiction of the Court of Oyer and Terminer in the case before us did not end with the term, but continued by the adjournment from day to day until the trial closed and the verdict was delivered, and, if necessary, sentence passed.
Complaint is made of that portion of the charge relating to the defence of alibi, but without just ground. When a defence rests on proof of an alibi, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the place of the murder. Although the prisoner makes no admission of guilt by setting up an alibi, yet clearly the value of the defence consists in its showing that he was absent from the place where the deed was done, at the very time the evidence of the Commonwealth tends to fix its commission upon him; for if it be possible that he could have been at both places, the proof of the alibi is valueless. The court treated the evidence of the prisoner’s being in bed at Truax’s as an alibi defence, which in truth it was; and in this view the portion of the charge complained of was correct. It is argued now that, though the prisoner’s evidence of an alibi was not conclusive as to time, yet it tended to *470raise a doubt of his presence at the house of John Allingbam. But the court said nothing to the contrary; and when charging- on the alibi as a defence, said expressly that the prisoner’s failure to prove it did not relieve the Commonwealth from the duty of proving that he was the perpetrator of the crime. At the close of the charge, when speaking of the doubt which should avail the prisoner, the judge said: “ The prisoner’s guilt must be made out by evidence sufficiently conclusive to exclude any reasonable supposition of innocence. Upon the whole ease and every material part of it, you are to give him the benefit of any reasonable doubt arising out of the evidence.” And again: “Allowing the prisoner the benefit o$ the presumption of innocence and of every rational doubt, you will give the evidence your calm, deliberate and solemn consideration.” These were nearly the closing words -of the charge, leaving the last and most vivid impression upon the minds of the jurors. The excellent judge who presided at the trial did the prisoner full justice.
The remaining assignments need no notice, not possessing sufficient merit to reverse the judgment.
The sentence of the Court of Oyer and Terminer is therefore affirmed, and the record ordered to be remitted to the court below for execution according to law.