Com. of Pa. v. Kline

• Decision Date: 25 January 1933
• Docket Number: 168-1933
• Citation: 164 A. 124,107 Pa.Super. 594
• Parties: Com. of Pa., Appellant, v. Kline
• Court: Pennsylvania Superior Court

164 A. 124

107 Pa.Super. 594

Com. of Pa., Appellant, v. Kline

No. 168-1933

Superior Court of Pennsylvania

January 25, 1933

Argued October 31, 1932

Appeal by the Commonwealth from order of Q. S., Butler County, March Sessions, 1932, No. 48, in the case of Commonwealth of Pennsylvania v. Charles H. Kline.

Indictment charging defendants with misdemeanor in office. Before Finletter, P. J., first judicial district specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on the fifth count of the indictment. Subsequently the court sustained defendant's motion for arrest of judgment. Commonwealth appealed.

Error assigned, among others, was the order of the court.

Reversed.

W Denning Stewart, and with him Andrew T. Park, District Attorney, Geo. F. P. Langfit, Assistant District Attorney and Earl E. Reed, Special Assistant District Attorney, for appellant. -- Where an indictment contains several counts each count is in contemplation of law, a separate and distinct indictment and the finding of the jury as to each one of such counts must be considered as an independent verdict: Gozner v. United States, 9 F. (2nd) 603; Steckler v. United States, 7 F. (2nd) 59; Carrignan v. United States, 290 F. 189.

Charles B. Prichard, and with him James M. Galbraith, Zeno F. Henninger, and Edward G. Coll, for appellee. -- A judgment may be arrested where a verdict of guilty on one count is inconsistent with a verdict of not guilty on another count. Commonwealth v. Sharpless, 31 Pa.Super. 96; Commonwealth v. Quinn, 42 Pa.Super. 490.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Parker, J.

An indictment, containing forty-five counts and charging misdemeanors in office, was found by a grand jury in Allegheny County against the appellee, Charles H. Kline, Mayor of the City of Pittsburgh, and Bertram L. Succop, Director of Supplies of that city. The Supreme Court having granted defendants a change of venue from Allegheny County to Butler County and the case having proceeded to trial in the latter county, the Commonwealth abandoned a number of counts and of the remainder the defendant Succop was found guilty upon twenty-nine counts and Kline was found guilty upon the fifth count alone. There was a specific finding by the jury of not guilty on the fourth count as to both defendants. Motions for a new trial and in arrest of judgment were filed, and the lower court thereupon refused the motions for a new trial but sustained the motions in arrest of judgment as to both defendants as to the fifth count, on the theory that the findings on the fourth and fifth counts were inconsistent and repugnant. Thereupon the Commonwealth appealed from the order granting Kline's motion in arrest of judgment. The counts involved in this appeal are set forth in full in the margin. ^[*]

The learned judge who presided in the lower court, in his opinion filed in support of the order, says: "It is plain that the verdicts in the two counts are contradictory. In the fourth the jury found the defendant innocent of entering into a wilfully illegal contract. In the fifth they found that he had entered into such a contract, indeed into the same contract, and add that having done so he paid for the goods. The two findings cannot be reconciled. It is no answer that the fifth count contains additional charges, to wit, that (1) defendant issued an order, (2) that he paid for the goods before delivery. It would have been an answer if these additional charges had been averred without reference to the illegality of the contract; but they are averred in such a way as to be interwoven with illegality of the contract. He is not charged simply with having paid for the goods, but with having paid for goods illegally bought. The language is 'Having made' an illegal contract, they 'issued an order.' 'Having made' an illegal contract, they 'paid' for the goods. Plainly a necessary part of the additional charges is the wilful illegality of the contract." Counsel for the defendant stresses the contention that the charges in the fourth and fifth counts are the same, basing such contention on the claim that purchase includes payment.

Conceding, only for the sake of argument, that there is an inconsistency or repugnancy between the verdicts on the fourth and fifth counts in that the charges are identically the same or that some fact was necessarily found adversely to the Commonwealth by the verdict on the earlier count which was an essential element in the fifth count, such is not sufficient ground for arresting judgment on the verdict of guilty. In the case of Mills v. The Commonwealth, 13 Pa. 634, 635, the Supreme Court said: "We don't know what instructions the court gave to the jury as to the 4th and 5th counts, and if we did know we could take no notice of them. But I presume the jury under the direction of the court thought there was sufficient facts and law, to authorize a conviction on the first, second and third counts, and to acquit on the fourth and fifth. It is a non-sequitur that it was inconsistent and constitutes error, to acquit on the fourth and fifth counts and convict on the others, which the counsel allege contain the same charge. We have not the counts on the paper book, and cannot therefore say the charge was identically the same. But if it were, it would not be error. [Italics are ours.] If the counts, on which there was a conviction of the defendant, were repugnant and could not stand together, and there was a general verdict, it would be error, but that is not alleged to be the case here." It will be noted in the instant case, first, that the contention is that the findings on the respective counts were repugnant and not that there was any inconsistency or repugnancy in the charges, and, second, that there was not a general verdict but an answer by the jury to each count.

In the cases of Com. v. Sharpless, 31 Pa.Super. 96, and Com. v. Donato, 87 Pa.Super. 285, the principle announced in the Mills case is recognized. In the Sharpless case, Judge Rice said (p. 101): "It cannot be declared as an abstract proposition that a verdict of guilty, which implies that the accused, being an officer of a quasi municipal corporation, as such received or possessed himself of the money of the corporation, otherwise than in payment to him of a just debt or demand, and, with intent to defraud, omitted to make a full and true entry thereof in the books and accounts of the corporation, would be necessarily inconsistent with a verdict acquitting him of the charge of unlawfully and fraudulently converting the money to his own use. In other words, a motion in arrest of judgment could not be sustained." In the Donato case, this court said (p. 288): "While it is vain indeed to speculate upon the reasons which moved the jury in this case, that tribunal may have thought that defendants ought to be convicted and sentenced but once because the attempt to extort the $ 500 and the conspiracy to extort was one transaction. The manifest inconsistency of the verdicts rendered upon the two bills did not require the learned trial judge to set aside the conviction on the second count of the conspiracy bill. That the evidence in the case was sufficient to warrant a conviction of an attempt to extort the money, as well as of a conspiracy to do so, is a complete answer to this contention." It is argued that because this court in those cases did not depend alone upon the general principle, it is a tacit admission that inconsistency or repugnancy between the verdicts on different counts in an indictment is sufficient ground to sustain a motion in arrest of judgment. We do not so interpret those cases, but regard the comments on the question as to whether there was an inconsistency as an additional reason for the conclusions at which the court arrived.

Another Pennsylvania case in point is that of Commonwealth v. Leib, 76 Pa.Super. 413, where in a prosecution for forgery and for uttering a forged instrument, a verdict of guilty of forgery was sustained even though the only proof of the forgery within the county where the indictment was brought was found in the evidence of the uttering therein of the forged instrument, as to which latter charge the defendant was found not guilty.

Much weight is given to the reasons for our conclusions by two cases recently decided by the Supreme Court of the United States. In the case of Dunn v. United States, 284 U.S. 390, 76 L.Ed. 356, 52 S.Ct. 189, the appellant was indicted in three counts, first, for maintaining a common nuisance by keeping for sale at a specified place intoxicating liquor, second, for unlawful possession of intoxicating liquor, and third, for the unlawful sale of such liquor. The jury acquitted on the second and third counts and found the defendant guilty on the first. Mr. Justice Holmes, after reciting the contentions of the government and the defendant, said (p. 393) "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment: Latham v. The Queen, 5 Best & Smith 635, 642, 643; Selvester v. United States, 170 U.S. 262, 42 L.Ed. 1029, 18 S.Ct. 580. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States, 7 F.2d 59, 60: 'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the...