265 Pa. 353 | Pa. | 1919
Opinion by
Defendant was indicted for alleged perjury in testifying as a witness in interpleader proceedings between the informant and defendant’s wife, the issue having been' framed to determine the ownership of certain personal property levied upon as that of defendant. The inter-pleader proceedings were tried twice, the judgment entered on the verdict in the first trial having been reversed by the Superior Court. The second verdict was rendered September 28,1915, judgment, however, was not entered thereon because of failure to pay the jury fee. On January 18, 1916, a true bill was found against defendant on an indictment charging perjury, based upon his testimony in the interpleader proceedings, and a trial on September 13, 1916, resulted in a verdict of guilty. A new trial was granted, and, upon a retrial, a second verdict of guilty was returned, on which sentence was pronounced. Before trial, counsel for defendant moved for a continuance, alleging failure to enter final judgment in the civil proceedings, which motion was refused; on appeal, however, the Superior Court held the refusal to continue to be error and reversed the lower court. An appeal was permitted to this court and the sole question now for oar consideration is whether the refusal to direct a continuance for the reason stated was erroneous.
If the reasons giving rise to the adoption of the rule do not exist the rule itself has no application. Here the action in which the perjury was committed by defendant was tried the second time in 1915, and neither motion for a new trial nor appeal entered. The execution creditor in that case, the prosecutor here, was satisfied apparently with the justice of the decision. The only element a complete record lacked was the formal entry of the judgment which must necessarily be delayed until payment of the statutory jury fee. The prosecutor, as he was the unsuccessful litigant, did not pay this fee, and, so far as he was concerned, it was immaterial whether or not judgment was finally entered. Mrs. Hilton, being in possession of the property at the time, did not see fit to. pay the jury fee as the only effect of a judgment would be to en
Without in any way detracting from the wisdom and propriety of the established rule in a proper case, the present is certainly one affording an exception and a proper one for the exercise of the discretion of the trial judge. No adequate reason can be suggested for holding the mere formality of paying the jury fee and entering judgment on the verdict would, so far as the prosecution for perjury is concerned, add anything to the record of the previous proceedings.
The court below exercised a proper discretion in refusing a continuance and for this reason the judgment of the Superior Court is reversed. Inasmuch, however, as it does not appear from the opinion of the Superior Court that the other questions involved in the appeal were considered by that court, the record will be remitted to have those questions passed upon.
The judgment is reversed and the record remitted for further consideration of the Superior Court, in accordance with the foregoing opinion.