91 Pa. Super. 582 | Pa. Super. Ct. | 1927
Argued October 5, 1927. The defendants above named were, respectively, charged in seven separate indictments with the offense of participating "in a vaudeville exhibition of a lascivious, obscene, indecent and immoral nature and character." The several cases involved only the same exhibition and by the consent of the parties were all tried together. The trial resulted in verdicts of not guilty and that the prosecutor, Frank J. Clark, pay the costs, in each of the cases. Frank J. Clark presented his petition in each of the cases, praying the court to set aside so much of the verdicts as imposed costs on him, whereupon the court granted a rule upon the district attorney, the county commissioners, the controller and all seven of the defendants above named, to show cause why so much of the verdicts as placed costs upon said Frank J. Clark, should not be set aside. An answer having been filed to the said petition, the depositions of Clark, the appellant, and such witnesses as he saw fit to produce, and also depositions on behalf of the respondents in the rule, were all submitted to the learned judge of the court below, who, after consideration thereof, discharged the rule and sentenced the appellant to pay the costs in the several cases. Clark appeals from this action of the court and assigns it for error in the seven appeals here presented, all of which may be disposed of by one order.
This appellant was given a full opportunity to be *584
heard, in the proceedings under his rule to show cause and after such hearing the court had a discretionary power over the subject, and its decision can only be reversed upon the ground that it involved a manifest abuse of discretion: Com. v. Doyle,
The proceedings at the hearing of the members of the audience before the appellant were most unusual. The learned judge of the court below states in his opinion that: "Several of these spectators testified at the trial that they were given the choice of a voluntary payment of $8.50 or entering bail for court. There is nothing in the record before us to show that the spectators were disorderly." The testimony was such as to warrant the conclusion arrived at by the learned judge of the court below, that: "If he (appellant) had confined his activities to these defendants his motives might never have been questioned, but when he collected $8.50 from each one of over one hundred spectators, the raid was given the appearance of an enterprise for revenue." It is well settled that in imposing the costs in a criminal prosecution the jury may look beyond the name of the prosecutor indorsed on the indictment, and impose the costs upon the actual prosecutor. We find no warrant for holding that the learned judge of the court below was guilty of an abuse of discretion in refusing to set aside so much of the verdicts as imposed costs on this appellant and sentencing the appellant to pay the costs.
The judgments are affirmed.