Commonwealth v. Gabor
58 A. 278
Pa.
1904
Check Treatment

Opinion by

Mb. Chief Justice Mitchell,

Thе commonwealth moves to quash this appeal as it is from an order of the court below for a new trial, and there is therеfore no final judgment. Ordinarily this would be so beyond question, but as the appellant claims to be entitled on the record to an аbsolute discharge, the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal upon its merits.

The facts lie within a very narrow compass. The appellant was indicted for murder, regularly tried, and a verdict rendered of guilty of manslaughter. By inadvertence this verdict was received, and the jury discharged in the absencе of the prisoner. On being brought in subsequently for sentence, the prisoner moved for arrest of judgment and a discharge from custody. Thе court refused the motion but set aside the verdict and ordered a new trial. This action is the ground of the appeal.

The аppeal is purely’ technical and entirely without substantial merit. It belongs to the class referred to by the late Chief Justice Stеbbbtt as “ subtile distinctions that mark no substantial differences, ‍‌‌‌​​‌‌‌‌‌​‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‌​‌​‌‌‌​​‌​‌‌​‌‌​‍and do not affect the merits of a controversy unless it may be to obscurе or to defeat them (and) should not be allowed to thwart justice in the interests of disorder and crime : ” Com. v. Jongrass, 181 Pa. 172. And to the same *204effect it was said in Com. v. Kaiser, 184 Pa. 493, the safeguards which the law has placed around the innocent “ will not be allowed to be perverted into devices to defeat justicе, and this court has set its face resolutely against trifling objections that raise no point of any real bearing on the fact оf guilt or innocence.”

The objection that the appellant’s motion in arrest of judgment and for a discharge was not formаlly passed upon and overruled is sufficiently answered by a reference to the case of Weaver v. Com., 29 Pa. 445, where it was held that passing sentence was a sufficient ‍‌‌‌​​‌‌‌‌‌​‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‌​‌​‌‌‌​​‌​‌‌​‌‌​‍overruling and disposition of such a motion.

The right of a court to order a new trial оf its own motion is indisputable. It is one of the essential functions of a judge sitting with a jury.

In Rex v. Gough, 2 Douglas, 791, the court suggested that a new trial would be proper and on counsel saying they would have moved for it but thought it too late, Lord Mansfield declared that the court if enough appeared could grant a new trial.

In Rex v. Atkinson, 5 Term Rep. 437, note (1783), Lord Mansfield is quoted as saying that no motion could be made for a new trial, after four days, “ but if it came out incidentally by the report that it was proper, the court might grant one,” аnd further, “ if the court conceive a doubt that justice is not done it is never too late to grant a new trial, but not on the application of the party.” In King v. Holt, 5 Term Rep. 436, Lord Kenyon ‍‌‌‌​​‌‌‌‌‌​‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‌​‌​‌‌‌​​‌​‌‌​‌‌​‍said he well remembered the case of King v. Gough “ where the objection to the verdict was taken by the court themselves,” and in the same case Bullen, J., concurred that after four days the party сould not be heard on motion for new trial, but only in arrest of judgment, but “if in the course of that address it incidentally appear that justiсe has not been done the court will interpose of themselves.” And see Tidd’s Practice, 912.

There is no reason why a court, finding that it has committed an error, should not be able to correct it by an order for a new trial rather than be compelled tо wait to reach the same result by a reversal upon writ of error. The right to do so was stated by Bnacicennidge, J., arguendo in Ewing v. Tees, 1 Binn. 450, *205457, and was distinctly asserted in Graham v. Graham, 1 S. & R. 330, where Chief Justice Tilghman said, “this authority is incident to the trial by jury by the principles of the common law.” So far as we are advised it has not been questioned in Pennsylvania since.

The English precedents above cited were made in criminal cases, and the only essential difference in the exerpise of this power in civil and in criminal cases, is that in the latter the court may not рut an additional burden on the prisoner. If the trial has resulted in an acquittal, error or no error, the prisoner is free of that сharge. In the present case the indictment was for murder, but the verdict was guilty of manslaughter. ‍‌‌‌​​‌‌‌‌‌​‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‌​‌​‌‌‌​​‌​‌‌​‌‌​‍Under the decisions in this state the verdict оf manslaughter was so far an acquittal of murder that the appellant cannot now be found guilty on that indictment of any higher grade than manslaughter. He has therefore everything to gain and nothing to lose by another trial, and the constitutional prohibition agаinst putting twice in jeopardy for the same offense has no applicability here. As said in Com. v. Fitzpatrick, 121 Pa. 109, 117, “ The justice of sustaining a plea of former acquittal or conviction is unquestioned and unquestionable, but a plea of ‘ once in jeopаrdy ’ stands on narrower, more technical, and less substantial ground. It alleges only that there might have been a conviction or аn acquittal, if the judge trying the cause had not made a mistake in law which prevented a verdict. It is of no consequence hоw many mistakes he makes, if the trial results in a conviction. The mistake can be corrected on a writ of error and the defendant tried over again.” And as already said if it can be done by an appellate court on review, it can be done by the court itself when convinced of its own error.

Appellant cites Hamilton v. Com., 16 Pa. 129, as authority for the demand that he shall be discharged. In that case the prisonеr was convicted of murder of the first degree and sentenced but the record failed to show that he had been asked what he had to say why sentence should not be pronounced against him, and it did not affirmatively appear even that he was prеsent in court when sentence was passed. This court discharged him, but it appears expressly in the report (p. 134) that the dischаrge was upon habeas corpus after the attorney general had appeared and stated that it was not the intention *206of the commonwealth to prosecute the case any further. Without this feature the absence of the opрortunity to state objections ‍‌‌‌​​‌‌‌‌‌​‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‌​‌​‌‌‌​​‌​‌‌​‌‌​‍to sentence would only have led to a reversal for the purpose of a new and rеgular sentence: Com. v. Preston, 188 Pa. 429. In Dougherty v. Com., 69 Pa. 286, there was a mistrial by a confusion of the records of the quarter sessions and oyer and terminer, and this court reversed the conviction but sent the prisoner back for trial in the oyer and terminer. And in Com. v. Lutz, 200 Pa. 226, a plea of twice in jeopardy was overruled and a second conviction affirmed.

We find no error in this record and the order for new trial is affirmed.