Com. v. Wright

• Decision Date: 03 January 1956
• Citation: 119 A.2d 492,383 Pa. 532
• Parties: COMMONWEALTH of Pennsylvania v. Harry WRIGHT, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 492

119 A.2d 492

383 Pa. 532

COMMONWEALTH of Pennsylvania v. Harry WRIGHT, Jr., Appellant.

Supreme Court of Pennsylvania.

Jan. 3, 1956.

Rehearing Denied Jan. 27, 1956.

Paul C. Van Dyke, Cochrane & Van Dyke, Chester, for appellant.

Ernest L. Green, Asst. Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty., Raymond R. Start, Dist. Atty., Media, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

This appeal will have to be quashed. The defendant was indicted for fornication and bastardy. The prosecuting witness testified positively that the defendant had had intercourse with her and was the father of her child. The defendant did not testify, but introduced a written report of blood tests which, in the opinion of the doctors making the report, showed that the defendant could not be the father of her child. In spite of this evidence the jury convicted him. The court granted a new trial in the interest of justice, after which the defendant took an appeal, contending, in substance, that the blood test statements were conclusive, and that he was entitled to be discharged.

In the first place, the defendant could not be discharged of the charge of fornication. In addition, an appeal in a criminal case, with certain exceptions not important here, can be taken only after sentence.

In Commonwealth v. Haimbach, 151 Pa. Super. 581, 583, 30 A.2d 653, 654, the Court stated: 'In general an appeal can be taken only after sentence. 'After verdict and judgment thereon, then, and not till then, can the alleged error be reviewed here on writ of error.' Com. v. Ruth, 104 Pa. 294; Petition of Quay, 189 Pa. 517, 542, 42 A. 199; Com. v. Penrod, 1 Wkly. Notes Cas. 65. In Marsh v. Commonwealth, 16 Serg. & R. 319, a writ of error was quashed when it appeared that the defendant, though convicted, had not been sentenced. The Supreme Court said: 'It is time enough to permit him to arrest the course of the criminal law, when he has shown that he has suffered actual injury.' The Acts of June 24, 1895, P.L. 212, 17 P.S. § 111 et seq., and May 19, 1987, P.L. 67, 12 P.S. § 1133, make no provision for an appeal to this court in criminal cases except from a sentence or final judgment. Com. v. Gates, 98 Pa.Super. 591. Appeals from such orders have been quashed generally (Com. v. Mellon, 81 Pa.Super. 20) 'in recognition of the well-established rule that final judgment in a criminal case means sentence. The sentence is the judgment.' Com. ex rel. Paige v. Smith, 130 Pa.Super. 536, 198 A. 812, 814. The rule is not inflexible and will yield in exceptional cases to safeguard basic human rights. [Citing cases.] But there is nothing in the present cases bringing them within an exception to the rule.'

Nor can the defendant, after the grant of a new trial, proceed on the theory that the court should have entered judgment for him.

In Commonwealth v. Haimbach, supra, 151 Pa.Super at page 584, 30 A.2d 653, at page 654, the Court stated: 'On the trial (on charges of embezzlement) defendant offered no evidence but submitted a point for a directed verdict of not guilty which was refused. After verdict defendant moved, both for a new trial and for the 'discharge of the defendant', on the ground 'that there is no evidence here which would sustain a conviction.' The Act of April 22, 1905, P.L. 286, 12 P.S. §§ 681, 682, did not extend the entry of judgment non...