Commonwealth v. Kerr

• Decision Date: 09 December 1942
• Citation: 150 Pa.Super. 598,29 A.2d 340
• Parties: COMMONWEALTH v. KERR.
• Court: Pennsylvania Superior Court

29 A.2d 340
150 Pa.Super. 598

COMMONWEALTH
v.
KERR.

Superior Court of Pennsylvania.

Dec. 9, 1942.

Application for Allocatur Refused Jan. 26, 1943.

29 A.2d 341

Appeal No. 151, April Term, 1943, from Judgment of Court of Quarter Sessions of Westmoreland County at No. 144, February Term, 1942; George H. McWherter, Judge.

J. F. Kerr was indicted for wilful neglect to support a child born out of lawful wedlock and at the close of the Commonwealth's case, the court sustained defendant's demurrer to the evidence and then instructed the jury to return a verdict of not guilty, and from the judgment of acquittal, the Commonwealth appeals.

Appeal quashed.

Before KELLER, P. J., and CUNNINGHAM, BALDRIGE, RHODES, HIRT, and KENWORTHEY, JJ.

Edward Bauer, Dist. Atty., and James Gregg, Sp. Dist. Atty., both of Greensburg, for appellant.

Paul K. McCormick, of Greensburg, and J. Clark Glassburn, of Uniontown, for appellee.

RHODES, Judge.

Defendant was indicted for wilful neglect to support a child born out of lawful wedlock under the Act of June 24, 1939, P.L. 872, § 732, 18 P.S. § 4732.¹ At the

29 A.2d 342

close of the Commonwealth's case, the court sustained defendant's demurrer to the evidence, and then instructed the jury to return a verdict of not guilty. A verdict of not guilty followed. From the judgment of acquittal the Commonwealth takes this appeal.

The Commonwealth has no right to appeal in this case. In Com. v. Obenreder, 144 Pa.Super. 253, at pages 254, 255, 19 A.2d 497, at page 498, in an opinion by President Judge Keller, we said: "It is well settled in this State that the Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible detainer. Act of May 19, 1874, P.L. 219 [19 P.S. § 1188]. And this is so whether the prosecution be by indictment (Com. v. Coble, 9 Pa.Super. 215; Com. v. Stillwagon, 13 Pa.Super. 547; Com. v. Weber, 66 Pa. Super. 180), or by summary proceeding. Com. v. Preston, 92 Pa.Super. 159; Com. v. Benson, 94 Pa.Super. 10, 15-18; Com. v. Ahlgrim, 98 Pa.Super. 595; Com. v. Bertolette, 101 Pa.Super. 334; City of Scranton v. Noll, 108 Pa.Super. 94, 164 A. 850. And, if the former, it does not matter whether the verdict be rendered by the jury of its own accord or by direction of the court. Com. v. Weber, 66 Pa. Super. 180; Com. v. Steimling, 156 Pa. 400, 405, 27 A. 297. Such a verdict or judgment of acquittal is not to be confused with the quashing of an indictment, or an arrest of judgment following a verdict of guilty, or a judgment sustaining a demurrer to the evidence, which raise only questions of law and do not result in a verdict of not guilty or judgment of acquittal, and accordingly in those cases, the Commonwealth may appeal." See, also, Com. v. Snaman, 131 Pa.Super. 383, 385, 200 A. 106.

The court below, after sustaining defendant's demurrer to the evidence, should not have directed the jury to find a verdict of not guilty. The object of a demurrer to the evidence is to ascertain the law on an admitted state of facts. Sea Com. v. Snaman, supra, 131 Pa.Super. page 385, 200 A. 106; Com. v. Kolsky, 100 Pa.Super. 596, 599. Since the Act of June 5, 1937, P.L. 1703, 19 P.S. § 481, the court on a demurrer to the evidence in a criminal prosecution must act upon it and either sustain it or overrule it. Com. v. Heller et al., 147 Pa.Super. 68, 83, 24 A.2d 460. For the purpose of deciding on the demurrer there is an admission of the facts which the evidence tends to prove and the inferences reasonably deducible therefrom. Com. v. Liebowitz, 143 Pa.Super. 75, 87, 17 A.2d 719. If the facts and inferences therefrom thus admitted do not support a finding of guilty and judgment thereon, it is the duty of the court to sustain the demurrer and discharge the defendant. See Com. v. Marino, 142 Pa. Super. 327, 330, 16 A.2d 314; Com. v. Heller et al., supra, 147 Pa.Super. page 84, 24 A.2d 460. The jury then has no further function to perform.² See Com. v. Robinson et al., 317 Pa. 321, 335, 340, 341, 176 A. 908. If the demurrer is sustained and the defendant discharged, the Commonwealth may then appeal. Com. v. Heller et al., supra, 147 Pa.Super. page 80, 24 A.2d 460; Com. v. Shiroff, 131 Pa.Super. 565, 566, 567, 200 A. 204; Com. v. Kolsky, supra, 100 Pa.Super. pages 598, 599; Com. v. Parr, 5 Watts & S. 345. The court below, however, after sustaining the demurrer, did not discharge defendant, but directed the jury to return a verdict of not guilty. While this procedure was incorrect, the result of the verdict of not guilty is that the Commonwealth is precluded from appealing from the judgment of acquittal. The settled rule of law has been that "to erroneous decisions made in the trial which may cause the acquittal of the accused, except in the three misdemeanors already mentioned [nuisance, forcible...