Commonwealth v. Gabor

• Decision Date: 16 May 1904
• Docket Number: 296
• Citation: 209 Pa. 201,58 A. 278
• Parties: Commonwealth v. Gabor, Appellant
• Court: Pennsylvania Supreme Court

58 A. 278

209 Pa. 201

Commonwealth v. Gabor, Appellant

No. 296

Supreme Court of Pennsylvania

May 16, 1904

Argued February 16, 1904

Appeal, No. 296, Jan. T., 1903, by defendant, from order of O. & T. Schuylkill Co., Sept. T., 1903, No. 544, directing a new trial in case of Commonwealth v. Michael Gabor. Affirmed.

Indictment for murder. Before BECHTEL, P.J.

From the record it appeared that when the verdict for manslaughter was taken and the jury discharged, the prisoner was not in court.

Subsequently when the prisoner was brought in for sentence he moved for arrest of judgment and a discharge from custody. Upon this motion the court made the following order:

And now, December 7, 1903, upon the case as now presented to the court, it is now hereby directed that the verdict be set aside, a new trial be granted -- the court reserving the right to file a written opinion if deemed necessary hereafter.

Errors assigned were in the following form:

1. The court erred in denying the prisoner's request to be discharged from the premises in the verdict specified.

2. The court erred in refusing to discharge the prisoner from the premises in the indictment specified.

3. The court erred in setting the verdict aside.

4. The court erred in making the following order:

"And now, December 7, 1903, upon the case as now presented to the court, it is now hereby directed that the verdict be set aside and new trial be granted."

5. The court erred in granting the prisoner a new trial.

We find no error in this record and the order for new trial is affirmed.

R. H Koch, with him F. P. Krebs, for appellant. -- A prisoner must be present when the verdict is returned or rendered: Dunn v. Com., 6 Pa. 384; Hamilton v. Com., 16 Pa 129; Prine v. Com., 18 Pa. 103; Dougherty v. Com., 69 Pa. 286.

The constitution provides that "no person shall for the same offense be twice put in jeopardy of life or limb:" art. 1, sec. 10. And yet the court below "directed that the verdict be set aside and new trial granted," thus attempting "for the same offense to twice put in jeopardy of life or limb" the defendant in this case, and this, not only without the defendant's request, but against his objection and emphatic protest. This language of the constitution is a sufficient reason why the order of the court below should be rendered nugatory by this court and the prisoner, who has now been in jail for many months since his trial, should be discharged.

C. E. Berger, district attorney, with him, J. H. Rothstein, for appellee.

Before MITCHELL, C.J., FELL, BROWN, POTTER and THOMPSON, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The commonwealth moves to quash this appeal as it is from an order of the court below for a new trial, and there is therefore no final judgment. Ordinarily this would be so beyond question, but as the appellant claims to be entitled on the record to an absolute discharge, the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal upon its merits.

The facts lie within a very narrow compass. The appellant was indicted for murder, regularly tried, and a verdict rendered of guilty of manslaughter. By inadvertence this verdict was received, and the jury discharged in the absence of the prisoner. On being brought in subsequently for sentence, the prisoner moved for arrest of judgment and a discharge from custody. The court refused the motion but set aside the verdict and ordered a new trial. This action is the ground of the appeal.

The appeal is purely technical and entirely without substantial merit. It belongs to the class referred to by the late Chief Justice STERRETT as "subtile distinctions that mark no substantial differences, and do not affect the merits of a controversy unless it may be to obscure or to defeat them (and) should not be allowed to thwart justice in the interests of disorder and crime:" Com. v. Jongrass, 181 Pa. 172. And to the same effect it was said in Com. v. Kaiser, 184 Pa. 493, the safeguards which the law has placed around the innocent "will not be allowed to be perverted into devices to defeat justice, and this court has set its face resolutely against trifling objections that raise no point of any real bearing on the fact of guilt or innocence."

The objection that the appellant's motion in arrest of judgment and for a discharge was not formally passed upon and overruled is sufficiently answered by a reference to the case of Weaver v. Com., 29 Pa. 445, where it was held that passing sentence was a sufficient overruling and disposition of such a motion.

The right of a court to order a new trial of its own motion is indisputable. It is one of the essential functions of a judge sitting with a jury.

In Rex v. Gough, 2 Douglas, 791, the court suggested that a new trial would be proper and on counsel saying they would have moved for it but thought it too late, Lord MANSFIELD declared that the court if enough appeared could grant a new trial.

In Rex v. Atkinson, 5 Term Rep. 437, note (1783), Lord MANSFIELD is quoted as saying that no motion could be made for a new trial, after four days, "but if it came out incidentally by the report that it was proper, the court might grant one," and further, "if the court conceive a doubt that justice is not done it is never too late to grant a new trial, but not on the application of the party." In King v. Holt, 5 Term...