DocketNumber: Appeals, 207 and 208
Citation Numbers: 64 A.2d 460, 147 Pa. Super. 68, 1942 Pa. Super. LEXIS 236
Judges: Baldrige, Cunningham, Hirt, Keller, Rhodes, Stadtfeld
Filed Date: 10/21/1941
Status: Precedential
Modified Date: 10/19/2024
Argued October 21, 1941.
The question involved in this appeal relates solely to criminal procedure. It is: Where a demurrer to the Commonwealth's evidence has been overruled and the defendants have taken the stand and offered other evidence in their behalf, and the case is submitted to the jury, resulting in a verdict of guilty, can the trial court, of its own motion, following the filing by the defendants of motions for a new trial, reconsider its action on the demurrer and sustain the demurrer and discharge the defendants? We hold that it cannot; that its only course, in case it feels that it erred in overruling the demurrer to the evidence, is to grant a new trial. *Page 70
The learned trial judge was of opinion that the changes in procedure with respect to demurrers to the evidence in criminal cases effected by the Act of June 5, 1937, P.L. 1703, justified his action as above stated, because the Act of 1937 contained in it no express prohibition of or limitation on his further consideration of the demurrer after the submission of the case to the jury and the rendition and acceptance of the verdict; and he felt warranted in entering judgment in favor of the defendants on the demurrer at any time up to final judgment of sentence, because such action was not expressly forbidden. We are of opinion (1) that the Act of 1937 granted the trial judge no such power as was exercised in this case; and (2) that under our criminal procedure a trial court can enter judgment contrary to the verdict of a jury only when the authority to do so has been established by the practice at common law or has been expressly conferred by statute, neither of which existed in the circumstances of this case. Appellate courts are specifically authorized to enter judgments on review by appeal from judgments of the lower courts, (Act of June 24, 1895, P.L. 212, pp. 219, 220;1 Act of June 16, 1836, P.L. 7852) which *Page 71
the latter have not been given authority to enter: Com. v.Wallace,
At common law judgment non obstante veredicto was a judgment given in civil cases for the plaintiff, on his motion, where the defendant had a verdict, but it appeared from the whole record that the defendant was not, in law, entitled to the judgment: Stephen on Pleading in Civil Actions, p. 97; 30 Am. Jur., Judgments, § 52; 33 C.J. 1178-9, § 112; 3 Bouvier's Law Dictionary, p. 2357, (Rawle's 3d Rev.). It could not apply to a criminal case for it was really a judgment on the pleadings
(Perry on Common Law Pleading, p. 212; McKelvey on Common Law Pleading, sec. 286, p. 177) and a verdict of acquittal ended the prosecution, and the trial court could not grant a new trial(Com. v. Kroekel, supra, pp. 430-432), even though the acquittal was founded upon the misdirection of the judge (Com. v.Steimling,
The common law practice as to judgments non obstante veredicto in civil cases was enlarged in Pennsylvania by various statutes culminating in the Act of April 22, 1905, P.L. 286, a review of the same being contained in the opinion of Chief Justice MITCHELL — who was a recognized authority on Pennsylvania Practice — in the case of Dalmas v. Kemble,
"The act being so recent it is important that it should be examined closely, and its proper construction settled. Its terms are: ``Whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may . . . . . . move the court to have all the evidence taken upon the trial duly certified and filed, so as to become part of the record and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court . . . . . . to enter such judgment as should have been entered upon that evidence.'
"This statute makes no radical innovation on the settled line of distinction between the powers of the court and the jury. It shows no intention to infringe, even if it could constitutionally do so, the province of the jury to pass upon the credibility of witnesses and the weight of oral testimony. The court has long had authority to direct a verdict for defendant when it was of opinion that the plaintiff, even if all his evidence be believed, has failed to make out his case. But this had to be done offhand at the trial and a mistake of the judge either way resulted in delay and expense. If he directed for defendant but on more deliberate examination or consideration came to the view that there was some evidence for the jury to pass upon, a new trialwas the only remedy, while on the other hand if *Page 73
he refused a binding direction but later found that it should have been given, the same result followed, for after a questionhas been submitted to a jury and the fact found by them the powerof the court to enter a contrary judgment on the ground that theevidence was insufficient is gone: North American Oil Co. v.Forsyth,
"The authority to reserve questions of law for the consideration of the court in banc was first conferred by the Act of March 1, 1825, P.L. 41, [continued by Act of March 26, 1832, P.L. 184] upon the judges of the district court of Philadelphia; continued [further] in the same court by the Act of March 28, 1835, P.L. 88, and extended to the courts [of common pleas] of the commonwealth generally by the Act of April 22, 1863, P.L. 554, together with the power also first conferred on the district court of Philadelphia by the Act of March 11, 1836, P.L. 76 [sec. 7] to enter a compulsory nonsuit if the plaintiff's evidence is not sufficient to maintain his action.
"The Act of 1905 is another step in the same direction. It broadens the power of the judge in this respect, that whereas heretofore the verdict was required to be for the plaintiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for binding direction to the jury and may be for either plaintiff or defendant. But though thus enlarged so as to include both parties, the power of the judge is the same as it was before. He is ``to enter such judgment as should have been entered upon that evidence', or in other words to treat the motion for judgment as if it was a motion for binding directions at the trial, and to enter judgment as if such direction had been given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review *Page 74 and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction then there can be no judgment against the verdict now. As already said there is no intent in the act to disturb the settled line of distinction between the provinces of the court and the jury. The act is capable of usefulness in allowing time for mature consideration, but it should not be carried beyond its legitimate intent." (Italics supplied).
It is plain from a reading of Chief Justice MITCHELL'S opinion that the Act of 1905 was not intended to extend the entry of judgment non obstante veredicto to criminal prosecutions, but was confined to civil issues, in which the court, at the conclusion of the testimony, might enter judgment for either party, if warranted by the evidence. This is confirmed by the final sentence of the act: "From the judgment thus entered either party may appeal to the Supreme or Superior Court, as in other cases, which shall review the action of the Court below, and enter suchjudgment as shall be warranted by the evidence taken in thatCourt." The Commonwealth in a criminal case, may not ask the court, upon a consideration of the whole of the evidence, to direct a verdict in its favor. Accordingly it was held in Com. v.Penna. R.R. Co.,
Where a verdict of guilty has been rendered in a criminal case, the trial court may arrest the judgment for some matter appearing on the face of the record which would render the judgment erroneous if given. But it must arise from intrinsic causes appearing on the face of the record. Evidence given on the trial does not become a part of the record to be considered on motion in arrest of judgment. And an order arresting the judgment is subject to appeal by the Commonwealth: Com. v. Kammerdiner,
The case of Com. v. Jones,
On appeal to the Supreme Court (
Counsel for defendants rely strongly on the case, Ex parteUnited States,
Nor does the Act of June 5, 1937, P.L. 1703,5 *Page 80 limiting the effect of demurrers to the evidence in criminal prosecutions confer on the trial judge the authority exercised by him in this case; and the learned trial judge admitted that his action in reconsidering the demurrer on his own motion after verdict would not have been possible prior to the Act of 1937.
The practice on demurrers to the evidence in criminal cases prior to the Act of 1937 was well settled.6
The Commonwealth was not bound to join in the demurrer. It could refuse to do so and insist on a jury trial. If it did join in the demurrer, either formally or by tacit acquiescence, the jury was discharged and the court was called upon to determine whether upon the facts in evidence — the truth of which was admitted by the demurrer — the defendant should be adjudged guilty of the crime for which he was indicted. The court in such case was not the trier of the facts. The admissions implied in the demurrer left for consideration the single legal inquiry whether the evidence introduced, with the inferences fairly arising therefrom, presented such a state of facts as would support a verdict of guilty. If the demurrer was overruled and the defendant adjudged guilty, sentence was pronounced, from which the defendant could appeal and bring to the appellate court the question whether the evidence of the Commonwealth and all inferences reasonably deducible therefrom, would support a verdict of guilty. If the demurrer was sustained and the defendant discharged, the Commonwealth could appeal, (Com. v.Kolsky, supra; Com. v. Parr, supra), just as it could from an order quashing an indictment (Com. v. Wallace,
There was no proceeding recognized in our criminal law which was the equivalent of a motion for a voluntary non-suit in civil cases, first authorized by the Act of March 11, 1836, P.L. 76, sec. 7. While there are expressions in some opinions to the effect that the trial court may, and in proper cases should, of its own motion declare the evidence of the Commonwealth insufficient to convict, (See Pauli v. Com.,
The practice was correctly outlined by Judge WILLIAM D. PORTER of this court — who had no superior in the fields of Criminal Law and Criminal Procedure — in the case of Com. v. Sonis,
"The first assignment of error attempts to raise a question which cannot be considered. Upon the conclusion of the testimony of the Commonwealth counsel for the defendants moved ``that the bills be submitted,' which motion the court overruled, and the defendants having taken an exception, the ruling is assigned for error. The motion ``to submit the bill,' upon the conclusion of evidence by the Commonwealth, seems, under the practice in some courts, to be equivalent to asking the court to direct the jury to render a verdict of not guilty. This practice is altogether irregular. If the defendant deems the evidence produced by the Commonwealth insufficient he may enter a formal demurrer thereto, and the court will then discharge the jury and enter such judgment as the evidence warrants; or he may decline to present evidence and go to the jury upon the evidence which the Commonwealth has produced. The court cannot be required toentertain a motion to direct a verdict of acquittal until theconclusion of all the testimony: Com. v. George,
In Com. v. George,
The purpose of the Act of 1937 was to afford the defendant an opportunity to require the court to pass on the sufficiency of the Commonwealth's evidence, by a demurrer to the evidence, without assuming the risk of the consequences which followed such a demurrer under the former practice. Consequently the changes effected by the act are: (1) The Commonwealth need not join in the demurrer. (2) The court must act upon it and either sustain it or overrule it. (3) The demurrer does not admit the truth of the Commonwealth's evidence — "except for the purpose of deciding upon the demurrer" — so as to conclude the defendant, if the demurrer is overruled; its practical effect is only to assert that, even if true, the evidence is not sufficient to warrant a verdict of guilty. (4) If the court overrules the demurrer, the statute declares that "such decision shall be deemed interlocutory only, and the case shall proceed as if such demurrer had not been made" — that is, the decision is not appealable by the defendant until final judgment is entered against him on a verdict of guilty. But an appeal may then be taken by him from the judgment of sentence, and the ruling on the demurrer assigned as error, and if the decision overruling the demurrer was erroneous and the demurrer should have been sustained, the judgment will be reversed by the appellate court and the defendant discharged, unless the evidence produced by the defendant in his own behalf — if he offered any — or the rebuttal thereto by the Commonwealth, in connection with the evidence in the case when the demurrer was entered, *Page 84
will support the verdict of guilty: Com. v. Marino,
The act does not affect the right of the Commonwealth to appeal if the demurrer is sustained; nor does it enlarge the power or authority of the trial judge to reconsider his action on the demurrer after a verdict of guilty. It contains in it (see Note 5) no hint of purpose or intention to confer additional powers on the court or to alter the well-established procedure in demurrers to the evidence in criminal cases, except so far as is necessary to carry out the purpose abovestated.
The act does not affect the right of the defendant to present a written point for binding instructions, but nothing in it confers any authority on the trial court to reserve such a point and enter judgment for the defendant after a verdict of guilty, either on the reserved point or non obstante veredicto. The remedy, in the court below, if it concludes that error was committed on the trial, is to grant a new trial.
The assignments of error are sustained. The judgment is reversed and the record is remitted to the court below to consider and pass upon the motions for a new trial.
Commonwealth v. Kirk , 340 Pa. 346 ( 1940 )
Commonwealth v. Jones , 303 Pa. 551 ( 1931 )
Commonwealth v. Sonis Sonis , 1923 Pa. Super. LEXIS 48 ( 1923 )
Commonwealth v. Bateman , 1927 Pa. Super. LEXIS 260 ( 1927 )
Commonwealth v. Nathan , 1928 Pa. Super. LEXIS 301 ( 1928 )
Commonwealth v. Ernesto , 1928 Pa. Super. LEXIS 334 ( 1928 )
Commonwealth v. J. Jones , 1930 Pa. Super. LEXIS 34 ( 1930 )
Commonwealth v. Kroekel , 121 Pa. Super. 423 ( 1935 )
Commonwealth v. Eichelberger , 119 Pa. 254 ( 1888 )
Commonwealth v. Kammerdiner , 165 Pa. 222 ( 1895 )
Griel's Estate , 171 Pa. 412 ( 1895 )
Dalmas v. Kemble , 215 Pa. 410 ( 1906 )
Commonwealth v. Kirk , 141 Pa. Super. 123 ( 1940 )
Commonwealth v. Bryson , 276 Pa. 566 ( 1923 )
Commonwealth v. Byers , 1910 Pa. Super. LEXIS 239 ( 1910 )
Commonwealth v. Wallace , 114 Pa. 405 ( 1886 )
Hutchison & Batchelder v. Commonwealth , 1877 Pa. LEXIS 15 ( 1877 )
Commonwealth v. Hanley , 1900 Pa. Super. LEXIS 338 ( 1900 )
Commonwealth v. Adams , 146 Pa. Super. 601 ( 1941 )
Commonwealth v. Schollenberger , 1901 Pa. Super. LEXIS 285 ( 1901 )
Commonwealth v. Kerr , 150 Pa. Super. 598 ( 1942 )
Commonwealth v. Haimbach , 151 Pa. Super. 581 ( 1942 )
Commonwealth v. Ott , 154 Pa. Super. 647 ( 1944 )
Commonwealth v. Speer , 157 Pa. Super. 197 ( 1944 )
Commonwealth v. Frank , 159 Pa. Super. 271 ( 1946 )
Commonwealth v. Downer , 161 Pa. Super. 339 ( 1947 )
Commonwealth v. Fox , 1956 Pa. Super. LEXIS 489 ( 1956 )
Commonwealth v. Poundstone , 200 Pa. Super. 416 ( 1963 )
Commonwealth v. Hopkins , 156 Pa. Super. 648 ( 1944 )
Commonwealth v. Moon , 151 Pa. Super. 555 ( 1942 )
Commonwealth v. Russell , 149 Pa. Super. 326 ( 1942 )
Commonwealth v. Weldon , 159 Pa. Super. 447 ( 1946 )
Commonwealth v. Waters , 148 Pa. Super. 473 ( 1942 )
Commonwealth v. Salkey , 185 Pa. Super. 148 ( 1958 )
Commonwealth v. Spanos , 167 Pa. Super. 629 ( 1950 )