Opinion by
Defendant was charged with the murder of one Edward Stechroth, of which crime he was tried and acquitted; subsequently he was indicted for involuntary manslaughter, in killing the same person, of which offense he was convicted. On the day of the trial of the last-named indictment, the accused interposed a special plea setting forth facts which he alleged were necеssarily involved in his acquittal in the murder case, and were likewise essential to proof of his guilt of involuntary manslaughter. The Commonwealth demurred to this plea, and the demurrer was- sustained. Defendant thereupon, on the same day, pleaded a short plea of former acquittal and also one of not guilty. Upon the latter plea issue was joined, but, so far as appears, it was not-as to the former. Defendant was found guilty, but moved in arrest of judgment, inter alia, because no verdict was rendered on his short plea of former acquittal. The court of quarter sessions dismissed the motion and imposed sentence; whereupon an appeal was taken to the Superior Court, which reversed the judgment and discharged the defendant without day, (1) because judgment should have been entered in his favor on the demurrer to his special plea, and (2) because there was no verdict upon the outstanding short plea of former acquittal.
Upon application of the Commonwealth, we allowed an appeal from the judgment of the Superior Court; and, in addition to the matters there decided, defendant now claims that his discharge without day deprives us of all right to proceed with the appeal. In answer to this latter point, it is only necessary to call attention to section 9, of the Act of June 24, 1895, P. L. 217, which provides that on appeals from the Superior Court “the whole proceeding shall be brought thereby within the jurisdiction and power оf the Supreme Court, who may enter therein such judgment, order or decree as may be just, except that it may not increase (although it may
Upon the first point decided by the Superior Court, viz, Should judgment have been entered for defendant on the demurrer of the Commonwealth to his special plea of former acquittal? he goes a step beyond that tribunal, and alleges that since, as a legal proposition, the demurrer- admitted the facts pleaded, among which was an averment that the verdict in the murder case concluded the issue here, this alone entitled him to judgment on his special plea. There is, however, a vital difference between the rule of law as he thus states it, and as it in fact is; for a demurrer only admits facts properly pleaded, and this necessarily excludes such as are not susceptible of proof, if issue is joined on the plea. The present case is illustrative of the necessity for this rule, for, had the Commonwealth traversed the plea, no evidence would have been admissible except the record in the prior case, and that alone would not sustain the plea. Public policy forbids the examination of jurors, as to the reasons for their verdict, and this was frankly admitted at bar. It follows that defendant’s contention upon this point must be overruled.
For the reasons stated in the able and interesting opinion of the Superior Court, it correctly decided that “the evidence in the murder trial is not before us, we can, therefore, consider only the record proper, which consists of the indictment, thе pleadings, the issue thereby formed and the verdict”; but, when thus considered, the Superior Court’s judgment is directly contrary to our decision in Hilands v. Com.,
In an endeavor to avoid this conclusion, the Superior Court fell into two plain errors. It treated the acquittal in the murder case as showing defendant was presumptively found to be not guilty of “the fact of any unlawful killing,” and added: “If a defendant is to be tried twice for the same fact [which statement begs the question], it is but just that he should have the right to insist that the record upon the trial for the felony must show that he was acquitted upon grounds which rendered him liable to subsequent prosecution for the misdemeanor, when the Commonwealth puts him on trial for that misdemeanor.” In the murder case, however, defendant was neither indicted, tried for nor acquitted of mеrely an “unlawful killing,” but of a killing “feloniously, wilfully, and of his malice aforethought,” which essentials are not necessary to be proved in an indictment for involuntary manslaughter, as was carefully pointed out in Hilands v. Commonwealth, supra.
The distinction just pointed out is essential to the due administration of the criminal law, as perhaps cannot better be established than by calling attеntion to the fact that, on his trial for murder, defendant presented
This comparison also shows clearly the fallacy of defendant’s argument that there was some fact established in his favor at the murder trial which was essential to his conviction of involuntary manslaughter. Every one admits that res adjudiсata conclusively determines not only the utlimate fact established by a verdict and judgment, but every other fact necessarily found in reaching the conclusion as to that ultimate fact; but this does not mean, as defendant asserts, that every defense he interposes is established, for he cannot point to any one of those defenses, and say it was upheld by thе jury. Nor does it follow that because the evidence is the same in the two cases, — even if we assume there was not the slightest difference, — that the defeating of one action concludes also the other. In each case there was an inference to be
The decision in Altenburg v. Commonwealth,
The suggestion in the above-quoted extract from the opinion of the Superior Court, that the record in a murder case “must show that [defendant] was acquitted upon grounds which rendered him liable to subsequent prosecution for the misdemeanor,” not only begs the question, as we there interpolated, and not only shifts from defendant to the Commonwealth the burden of proof of a former acquittal (Com. v. Brown,
The other point sustained by the Superior Court, viz, that, since there was no verdict formally rendered on the short plea of former acquittal, defendant could not be sentenced for the crime of which he was convicted, is fully answered by the fact that none of the assignments of error raise this question. Excerpts from the opinion of the court of quarter sessions, in considering the motion in arrest of judgment, are quoted and assigned, but the motion itself and the order thereon is not. Moreover, if this was waived, the judgment of the Superior Court, if founded upon this point alone, would be erroneous ; for it not only reversed the sentence, but also discharged the defendant without day. Besides, even if we overlook this also, the cases of Commonwealth v. Demuth, 12 S. & R. 389, and Solliday v. Com.,
If the plea of former acquittal was still an issue in the case, and before the jury to be decided, the burden of proof of sustaining it, as already pointed out, was upon the defendant, and he offered no evidence on the subject. He offered in evidence the record in the murder case, on the consideration of his special plea, but he did not even do this at the trial, though he says the jury was bound to return a verdict on the plea of former acquittal, as wel] as on that of not guilty. Moreover, as stated above, the question was then res adjudicata; had the trial judge’s attention been called to the plea, he would have been compelled to instruct the jury that the verdict thereon must be in favor of the Commonwealth; and surely it cannot be reversible error that he did not do that which would have been of no benefit to appellant. The court of quarter sessions says, in its opinion refusing to arrest the judgment, that “it is conceded upon the part of defendant that the objection [now made] is highly technical”; it is too “highly technical,” under the circumstances detailed, to be available to defendant. Having had his plea of former acquittal oncе considered and passed upon before trial on his plea of not guilty, he was not entitled to file it over again and have it considered and decided a second time before trial, — for it must be remembered his claim is that this should have been done before a trial on the merits. Had he been allowed this, he could, if the argument now made is valid, have interposed it a third time with the same result, and so on indefinitely.
It is impossible to read the record brought up by defendant on his appeal, without concluding that the sole purpose of the short plea of former acquittal was to protect him in case it should be held the special plea, which was prepared under common law practice and not in the form prescribed by section 30 of the Act of March 31,
It is true, four requests were presented for charge, which related to the identity of the evidence on the two trials; they did not refer to the present point in any way, however, but only alleged “there can be no conviction under the indictment,” and “the verdict of the jury must be not guilty”; and hence related only to the issue raised by the latter plea. This conclusion is, moreover, strongly buttressed by the fact that, at the end of the chаrge, “the court asked counsel if they desired any further instructions to the jury, [and] none was requested.” For all the reasons stated this matter must also be decided against the defendant.
It remains to review the other assignments of error filed in the Superior Court, which tribunal says it did not consider them, but (in view of our conclusions above, expressed) we must do so, in order to determine whether or not prejudicial error appears. If any of them raised a question of an important or doubtful character, we would exercise the option given by section 9
The only exception to the charge is a general one, and, under such circumstances, nothing but basic and fundamental errors will be reviewed: Sikorski v. Phila. & Reading Ry. Co.,
The 18th and last specification of error is to thе sentence of the accused; this assignment must also be-overruled since the case was ripe for judgment when imposed, and the sentence itself is in conformity with law: Com. v. Hudson,
The judgment of the Superior Court is reversed, the judgment and sentence of the Court of Quarter Sessions of the Peace of Blair County is reinstated and affirmed, and the record is remitted to the last-named court with directions to take all necessary steps to carry the sentence into effect,