Opinion
November 9, 1942.
December 9, 1942.
Appeals — Parties — Commonwealth — Criminal prosecution — Verdict of not guilty.
1. The Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible entry; and this is so whether the verdict is rendered by the jury of its own accord or by the direction of the court.
2. Such principle is applicable even though, after sustaining defendant's demurrer to the evidence, the trial court, instead of discharging the defendant, erroneously directs the jury to return a verdict of not guilty.
Appeal, No. 168, April T., 1943, from judgment of Q.S. Westmoreland Co., Aug. T., 1942, No. 205, in case of Commonwealth v. Harry B. Miller.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. Appeal quashed.
Indictment charging defendant with fraudulent conversion and obtaining money by false pretenses. Before KEENAN, J.
Demurrer by defendants sustained, and jury directed to return a verdict of not guilty. Judgment of acquittal entered on verdict. Commonwealth appealed.
D.J. Snyder, Jr., of Kunkle, Trescher Snyder, and Edward G. Bauer, District Attorney, for appellant.
Donald Laird Hankey, for appellee.
Argued November 9, 1942.
Defendant was tried under two bills of indictment which charged him with fraudulent conversion and cheating by false pretenses. At the conclusion of the evidence presented by the Commonwealth the court sustained defendant's demurrer. However, it did not discharge defendant, but directed the jury to return a verdict of not guilty. Judgment of acquittal was entered on the verdict, and the Commonwealth has appealed. The appeal will be quashed.
Act of June 24, 1939, P.L. 872, § 834, 18 Pa.C.S.A. § 4834.
Act of June 24, 1939, P.L. 872, § 836, 18 Pa.C.S.A. § 4836.
We have repeatedly held that the Commonwealth cannot appeal from a verdict or finding of not guilty in a criminal prosecution, except in cases of nuisance, forcible entry, and forcible detainer See Com. v. Teman, 134 Pa. Super. 36, 37, 3 A.2d 960; Com. v. Kerr, 150 Pa. Super. 598, 29 A.2d 340. The same erroneous practice was followed here as in Com. v. Kerr, supra. Where a demurrer to the evidence is sustained the court discharges the defendant and the jury has no function to perform. In the instant case, as in Com. v. Kerr, supra, the trial judge, however, after sustaining the demurrer, directed the jury to return a verdict of not guilty. That verdict precluded any appeal by the Commonwealth. The matter has been fully discussed in Com. v. Kerr, supra.
Appeal is quashed.