4 A.2d 164 | Pa. Super. Ct. | 1938
Argued October 18, 1938. On February 3, 1938 a true bill of indictment was returned against Isaac Bergen to No. 1760 January 1938 Sessions of the Court of Quarter Sessions of Philadelphia County [Appeal No. 307] charging (1) that the said defendant on December 27, 1937 with force and arms, etc., unlawfully did make an assault upon the body of one Charles A. Mulhern, and the said Charles A. Mulhern then and there unlawfully did kill and slay1; and (2) that the said defendant, on December 26, 1937, at the county aforesaid, with force and arms, etc., unlawfully did make an assault upon the body of one Charles A. Mulhern, and then and there unlawfully did give to the said Charles A. Mulhern a mortal wound, of which said mortal wound the said Charles A. Mulhern did languish, and languishing did live from December 26, 1937 to December 27, 1937, on which latter day, December 27, 1937, the said Charles A. Mulhern did of said mortal wound die at the county aforesaid, etc.; and that the said defendant so unlawfully did kill and slay the said Charles A. Mulhern in manner and form aforesaid.2 *66
On March 14, 1938 a true bill of indictment was returned against the said Isaac Bergen to No. 339 March 1938 Sessions, of said court [Appeal No. 306], charging that the said defendant on February 4, 1938, (1) did commit an assault and battery, etc. upon Nancy Stauffer, Hannah Mulhern, Howard Mulhern and Thelma Mulhern; and (2) did commit an assault upon the said persons and unlawfully and maliciously did inflict upon them grievous bodily harm, etc. (`aggravated assault and battery').
Defendant was arraigned in open court on both indictments on June 24, 1938 and pleaded, Not guilty, and, in addition thereto, the same day filed an identical special plea to each of said indictments, to wit:
"2. Not guilty, by reason of the following special matter, to wit:
"That on January 10, 1938, in the county aforesaid, in a proceeding in which the Commonwealth of Pennsylvania was plaintiff and the said defendant was defendant, to wit, the case of Commonwealth of Pennsylvania v. Isaac Bergen, before James W. McBride a duly elected magistrate of said county and Commonwealth having jurisdiction under law, to wit, the Act of June 29, 1937, P.L. 2329, Section 3, amending Section 1001 of the Vehicle Code of May 1, 1929, P.L. 905, it was duly and finally adjudicated that the defendant was not guilty of any violation of the said Section 1001(a) of the said Vehicle Code of May 1, 1929, P.L. 905, as amended by Section 3 of the said Act of June 29, 1937, P.L. 2329, as aforesaid, that is to say that the said defendant was not guilty at the time and place charged in the indictment, to wit, on the 26th day of December, 1937, of driving any vehicle upon any highway carelessly or wilfully or wantonly disregarding the rights or safety of any others or in any manner so as to endanger any person or property. And this the said defendant is ready to verify."
To these special pleas the District Attorney, the same *67 day, entered a separate demurrer in each case, to wit, that the said special plea as above pleaded and set forth "is not sufficient in law to bar or preclude the Commonwealth from prosecuting the said indictment against [the said defendant], and that the said Commonwealth is not bound by law to answer the same."
The court, after argument, entered judgment for the defendant on each demurrer, and discharged the defendant on both indictments. The Commonwealth appealed. The judgments will be reversed.
1. In the first place, by referring to the indictments, which we have recited more fully than otherwise we would have done, it will be seen that in neither of them is there any reference whatever to the Vehicle Code of May 1, 1929, P.L. 905, or its amendment of June 29, 1937, P.L. 2329, nor any averment that a motor vehicle was involved in the offenses charged, nor any charge that the defendant had on December 26, 1937 driven any vehicle carelessly or wilfully, or wantonly disregarding the rights and safety of others so as to endanger any person or property, in violation of section 1001(a) of said Vehicle Code. No bill of particulars had been asked for in either indictment, and a plea which sets up the defense of former acquittal to a supposititious charge not contained in the indictment is bad and should be overruled on demurrer. While in these days indictments for involuntary manslaughter frequently grow out of automobile accidents, involuntary manslaughter is not limited or confined to such cases, but in the words of the Criminal Code of March 31, 1860, P.L. 382, sec. 79, it is "manslaughter happening in consequence of an unlawful act." Nor is involuntary manslaughter arising in connection with motor vehicles confined to those caused by reckless driving. We pointed out in Com. v. Gill,
It does not follow, therefore, that even if the alleged unlawful killing in No. 307 arose out of an automobile accident, — as to which the indictment was wholly silent — it was in consequence of the reckless driving of the defendant rather than some other act forbidden by law and therefore unlawful. And as to Appeal No. 306, where the indictment charged assault and battery and aggravated assault and battery, in order to secure a conviction the conduct of the defendant must be so gross or wanton that an intent to injure may be inferred (Com. v. Kalb,
2. In the second place, it is well established in this State that where a former acquittal is pleaded in bar to an indictment, and the plea is demurred to by the Commonwealth, "the question whether the former acquittal was for the same offense depends on the record pleaded and not on the arguments or inferences deduced therefrom": Com. v. Shoener,
The plea filed in these cases does not purport to set forth the judgment or adjudication of the magistrate in the very words rendered by him. The court below, which apparently had the record before it, said "it appears that what actually occurred in the magistrate's court was, that the magistrate heard all of the witnesses and made an order discharging the defendant on the complaint of reckless driving under section 1001(a) of the Vehicle Code, and held defendant in bail for court on the charge of manslaughter and assault and battery by automobile."
The court then said: "It is beyond doubt that the effect of the order made by the magistrate `discharging' defendant on the reckless driving charge was equivalent to a finding of not guilty. See Commonwealth v. Benson,
The learned court misunderstood our decision in Com. v. Benson,
supra. We made no ruling that a discharge by a magistrate or alderman was in all cases equivalent to a finding of not guilty. After giving the dictionary definitions of `discharge' and `acquit' and showing that the former was given as one of the synonyms of the latter, we said: "A majority of this court are of opinion that the judgment of the court below, considered inconnection with the opinions discussing the evidence, shows aclear intent to find the defendants innocent of a violation of the Act of 1794 and to discharge them because of that finding,
and that it amounts to a `distinct and unequivocal judgment upon the facts and the law applicable to those facts' (Com. v.Congdon, supra), [
But in Com. ex rel. v. Pahlman,
If therefore the charges in connection with these indictments grew out of alleged reckless driving of a *71 motor vehicle by the defendant, as to which there is nothing in the indictment, it would seem that the act of the magistrate in holding the defendant to bail for court on the charges of manslaughter and assault and battery by automobile, which necessarily carried with it the finding by the magistrate of a prima facie case of reckless driving by the defendant, is so incompatible with a finding of not guilty of that charge, that it is impossible to hold that the discharge was equivalent to a judgment of acquittal; that it rather required a finding that the magistrate having, upon a hearing of the evidence, returned the charges of misdemeanor to the court of quarter sessions to be presented to the grand jury for indictment and placed the defendant under bail to answer them in that court, he dismissed the minor charge, which the statute required to be prosecuted within fifteen days by summary conviction, and discharged the defendant so that he might not be subjected to a double penalty for any act entering into the greater offenses which he would be required to meet in the quarter sessions, and to try which the magistrate had no jurisdiction.
In such circumstances, a discharge, instead of showing an
intention to acquit on the facts, shows just the opposite.
3. Furthermore, there is another thing to be considered. Sir William Blackstone in his Commentaries (Book IV, p. 336) said: "It is to be observed that the pleas of autrefois acquit andautrefois convict, or a former acquittal and former conviction, must be for the same identical act and crime," and, throughout, the cases refer to indictments. In Burton v. United States,
The ruling in each case was based on the fact that, as the law then stood, on the trial of the indictment for the greater offense there could have been no conviction of the lesser.
The same reason was at the bottom of the decision in Com. v.Greevy,
In Hans Nielsen, Petitioner,
In the present case there could be no conviction for reckless driving, as defined in section 1001(a) of the Vehicle Code, on the trial of the defendant on the indictments for involuntary manslaughter or assault and battery, for it is not an indictableoffense, but only punishable upon summary conviction before a justice *73 of the peace, alderman or magistrate.
While the decisions and authorities dealing with the pleas of former acquittal and former conviction almost universally relate to indictable offenses, we have, in this State, extended it by analogy to summary proceedings before a justice of the peace, alderman or magistrate to the extent that an acquittal or conviction in such a proceeding will be a bar to a conviction on a subsequent summary proceeding brought before the same oranother inferior magistrate for the same matter. See Marstellerv. Marsteller,
The same principle applies in civil cases, where the defense of res judicata exists, but does not attach where the claim sought to be enforced by action in the common pleas was not cognizable before or within the jurisdiction of the justice. See Gobble v.Minnich,
A corollary to this principle is stated in Wharton's Criminal Law (12th Ed.) Vol. 1, sec. 394, as follows: "An acquittal or conviction for a minor offense included in a greater will not bar a prosecution for the greater if the court in which the acquittal or conviction was had was without jurisdiction to try the accused for the greater offense."
It is supported by the following cases from other jurisdictions:
In People v. Townsend,
In Crowley v. State, 94 Ohio State 88, 113 N.E. 658, defendant had pleaded guilty to the crime of unlawful assault and battery upon a woman, before the mayor of the City of Lancaster, Ohio, and had been sentenced to 120 days in the Zanesville workhouse and to pay the costs of prosecution. After he had served his sentence and had been discharged, he was indicted in the Court of Common Pleas of Fairfield County for assault with intent to commit rape. In bar of the indictment, defendant *75 pleaded that the act for which he was indicted was the same act for which he had been sentenced by the mayor and served his sentence. In Ohio simple assault and battery was a minor offense of which the mayor's court had jurisdiction, but assault with intent to rape was a felony, over which the mayor's court did not have jurisdiction. To the plea of autrefois convict the state demurred. The demurrer was sustained. It was held that because the mayor's court did not have jurisdiction to try felonies, which included assault with intent to rape, the conviction of assault and battery was not a bar to the subsequent prosecution for the felony, even though the lesser offense was part of the greater offense. The opinion of the court in that case, by Judge NEWMAN, reads in part as follows:
"Counsel base their right to a reversal of the judgment of the Court of Appeals [which affirmed the judgment of the common pleas] upon the sole ground that there was error in holding that the demurrer to the plea in bar was properly sustained. There is therefore but one question for our consideration: Could plaintiff in error avail himself of the constitutional guaranty in section 10, Art. I, of the Constitution, providing, `No person shall be twice put in jeopardy for the same offense?'
"It is conceded that the offense of assault and battery, to which he entered a plea of guilty before the mayor, is an offense included in the one charged in the indictment, and of which he was subsequently found guilty by the jury. Counsel in support of their contention invoke the rule announced in Price v. State,
"This test has been applied in cases where the accused had been convicted or acquitted of an offense lesser than and included in the offense subsequently charged, but in practically every case the court in which the conviction or acquittal was had was a court having jurisdiction to try the accused on a charge for the greater offense had the same been made. We do not think this test should be applied here.
"In this case, the mayor, concededly limited in his jurisdiction in criminal matters, was wholly without jurisdiction to try one charged with a felony, and consequently could not have tried plaintiff in error on the charge of assault with intent to commit rape. In State v. Rose,
"So, in the instant case, before plaintiff in error could be in jeopardy on the charge of assault with intent to commit rape, it must have been in a court with jurisdiction to try the charge."
In State v. Dickson,
In Diaz v. United States,
In Com. v. McCan,
In Bowman v. State,
In Severin v. People,
In State v. Hattabough,
See also State v. Caddy,
The assignments of error in each appeal are sustained and the judgment is reversed with a procedendo.