Commonwealth v. Kammerdiner

Opinion by

Mb. Justice Fell,

This appeal is by the commonwealth from an order of the court of quarter sessions made in arrest of judgment. The defendant was charged in the first count with fornication and bastardy, and in the second with incestuous fornication and bastardy, and was found guilty in manner and form as indicted.

It is difficult to understand upon what view of the law the action of the court in arresting judgment was based. The causes assigned constitute no valid reason for interference by the court, and the reasons stated in the opinion throw little light upon the subject, and are wholly untenable. That it appeared at the trial that the defendant had been guilty of three offences, and had not been indicted for the greatest of them, did not prevent his conviction of the two covered by the counts.

The case presents the anomaly of an arrest of judgment not for defects appearing upon the record, but for causes entirely foreign to it. The indictment was in proper form, nor is it suggested that its averments were not fully sustained by the testimony, and unless tlie defendant was to go free there was no alternative but to enter judgment on the verdict. In any subsequent attempt to convict tbe defendant of adultery the prosecution would be met with the difficulty that the substantial offence was the same in each charge, and that the evidence necessary to support the second indictment was sufficient to convict, on the first. See Com. v. Arner, 149 Pa. 85. There was no sufficient- ground for the arrest of judgment.

The judgment is reversed and tbe record remitted to the court of quarter sessions to proceed to sentence according to law.