Commonwealth v. Edwards

Opinion,

Mk. Justice McCollum:

The indictment in this case charged that James N. Edwards, William R. Farrell, and divers other persons, whose names were to the jurors unknown, falsely and maliciously conspired and agreed to set fire to certain dwellings in Luzerne county belonging to T. A. Long and Cory Allen. When the case was called for trial, on 7, 1889, a plea of guilty was entered by Farrell, and a plea of not guilty by Edwards. On the issue thus joined the cause was tried the same day, and the verdict of the jury was: “We find the defendant, James N. Edwards, not guilty, and that the prosecutor, T. A. Long, shall pay the costs.” An ineffectual effort was made by Long to have this finding set aside as to him, and on the nineteenth of June he was sentenced to pay the costs of prosecution, and to stand committed, etc. The learned judge of the Quarter Sessions assumed that the acquittal of Edwards rendered Farrell’s plea of guilty a nullity. He said: “ Where two persons are jointly indicted for a conspiracy, and one of them is acquitted by the jury, the conviction of the other, or, as in the present case, his plea of guilty, must go for nothing. The only possible exception to this statement would be a case where there was an allegation in the indictment, and proof sustaining it, of a conspiracy with other persons who were unknown and therefore could not be ■named.”

An indictment charging the defendant with conspiracy with persons unknown is good : Whart. Crim. Law, 9th ed., § 1393. In this case, if a nolle prosequi had been entered as to Edwards, the indictment, and Farrell’s plea to it, would have supported a judgment against him. The question whether Farrell had conspired with persons unknown was not before the jury, and therefore no evidence on that subject was submitted to them. Edwards might well be innocent of the crime charged in the indictment, and Farrell be guilty of conspiracy with divers persons whose names were to the grand jurors unknown. An acquittal of the former cannot, therefore, be held to establish the innocence of the latter, nor can the absence of evidence on a question not raised by the pleadings impair the effect of Farrell’s plea of guilty. As that is not destroyed or reversed by the verdict, we have before us a record in which one defendant is convicted by his own confession, another is acquitted by the verdict of the jury, and the prosecutor is sentenced to pay the costs. The learned judge of the court below evidently sustained the finding as to costs, upon the theory that the acquittal of Edwards was tantamount to an acquittal of both defendants named in the indictment, although Farrell had entered a plea of guilty to it. In this conclusion, as we have seen, there was error; and, unless the judgment can be sustained upon other-grounds, it must be reversed.

It remains for us to consider whether, in a prosecution for a misdemeanor, where one defendant enters a plea of guilty and another is acquitted by the verdict, the jury have the power to impose the costs on the prosecutor. It was long since decided that the jury cannot convict one of two defendants jointly indicted for a misdemeanor, and acquit the other, and direct the latter to pay the costs : Searight v. Commonwealth, 13 S. & R. 301. In the case cited, Justice Gibson pointed out, with his usual clearness and force, some of the inconsistencies which might result from the possession and exercise of such a power.

The power of a jury over costs in criminal procedure is statutory, and limited to eases of acquittals on indictments for misdemeanors. In all cases of conviction of any crime, all costs shall be paid by the party convicted. Where two or more persons have committed an indictable offence, the names of all shall be contained in one bill of indictment, for which no more costs shall be allowed than if the name of one person only was contained therein: Act of March 31, 1860, §§ 62, 64, 65, P. L. 445. Where two persons are jointly indicted for a misdemeanor of which a jury may lawfully convict one and acquit the other, and there is a conviction of one by his plea, and the other is tried on a plea of not guilty, the issue as to the latter is precisely the same as if both were on trial. The pleas of joint defendants are to be regarded as several, and a plea of not guilty by all the defendants is in law a several plea: Whart. on Crim. Pl., 9th ed., § 412. The issues are as distinct if the defendants are tried together as if separate trials were allowed them. If, in the former case, one is acquitted and the other is convicted, the acquitted defendant must lose his costs, as in the case of acquittal of felony, because the jury have no power to order their payment by his co-defendant, the prosecutor, or the county. It is nob the issue which confers the power, but the statute; and, as that is penal in its consequences, it must be strictly construed. If the power exists after the conviction of one defendant by plea or verdict, we may have the incongruities and absurd results described in Searight v. Commonwealth, supra. If four persons are joined in one indictment, we may have a convicted defendant, an acquitted defendant, and the prosecutor sentenced to pay the costs, and an order by the jury that the county shall pay them. A construction which will authorize such a record should be supported by the plain language of the statute. “In .a case of this kind,” said Mr. Justice Gibson in the case cited, “ we are not to grope for any presumed intention.”

We are of opinion, after careful consideration of the statutes which relate to this subject, that where two are joined in an indictment for a misdemeanor, and one is convicted and the other is acquitted, the jury have no power to order.that the costs, or any portion of them, shall be paid by the county, the acquitted defendant, or the prosecutor, and that it makes no difference whether the conviction is by plea or by vei’dict. In this view of the law, the acquitted defendant neither loses nor gains anything by his co-defendant’s plea of guilty, and the prosecutor cannot be ordered to pay any portion of the costs accruing on an indictment which is sustained by the conviction of one of the defendants therein.

The judgment is reversed, and T. A. Long, the appellant, is discharged from his recognizance.