Commonwealth v. Coble , 9 Pa. Super. 215 ( 1899 )

Pee Cueiam,

The defendant having been acquitted, the commonwealth appealed, and has assigned for error certain portions of the charge to the jury. It is admitted that the acquittal of the defendant is conclusive, and cannot be disturbed, but it is urged, that, owing to the importance of the question, we ought to examine the ruling of the court, and declare whether it was right or wrong. Two cases are cited as precedents for such action: Com. v. Steimling, 156 Pa. 400, and Com. v. Curry, 4 Pa. Superior Ct. 356. The first case was argued at the same time as the appeal from the judgment in an action for malicious prosecution which grew out of the prosecution (Steimling v. Bower, 156 Pa. 408), and the question, whether the facts charged were sufficient to warrant a conviction, and hence to show probable cause for the prosecution, was fairly before the court. In Com. v. Curry there was a verdict of guilty, which the court set aside and discharged the defendant. We reversed the order discharging the defendant, and remitted the record to the court below with a procedendo. The assignment of error raised the question upon which we gave an opinion, the error appeared upon the face of the record, and we had power to correct it. For error in quashing an indictment, arresting judgment after verdict of guilty and the like, the commonwealth may remove the record for review without special allowance of the proper writ: Com. v. Wallace, 114 Pa. 405; Heikes v. Com., 26 Pa. 513. Neither of these cases, therefore, is authority for the proposition, that although we are powerless to correct errors in the charge of the court given on the trial of a criminal case which has resulted in an acquittal, yet the commonwealth may, on an appeal, obtain an expression of opinion as to the correctness of the instructions complained of. It seems to us, that the more important the question the stronger the reason for withholding an expression of opinion upon it until it arises in a real dispute, where the appellate court has jurisdiction to render a decision which will authoritatively determine it. When the question argued on this appeal arises upon the record of a case properly before us, it will deserve most careful and serious consideration, but we do not think we ought to make any advance to meet it until we are required to do so by the duties of our position. Our jurisdiction on appeal in cases like the present is that which the Supreme Court had on writ of error prior to the. act of 1889, which gave the name “appeal” to all appellate proceedings. This was limited to the correction of errors appearing of record. At common law the charge of the court was not part of the record, and the statute of Westminster II., which authorized bills of exceptions was held not to extend to criminal cases: Middleton’s Case, 2 W. 285 ; Sampson v. Com., 5 W. & S. 385; Hopkins v. Com., 50 Pa. 9; and see Vanpool v. Com., 13 Pa. 391. The Act of November 6, 1856, P. L. (1857) 795, amended and supplied by the Act of March 31, 1860, P. L. 427, sec. 33, gave defendants in indictments for murder or voluntary manslaughter the right to except on the trial to any decision of the court upon any point of evidence or law, and the Act of May 19, 1874, P. L. 219, extended the same right to defendants in all criminal cases, and to the commonwealth in cases of nuisance, forcible entry, and forcible detainer. “ To erroneous decisions made in the trial which may cause the acquittal of the accused, except in the three misdemeanors already mentioned, the commonwealth cannot except, and such decisions cannot be reviewed: ” Com. v. Wallace, 114 Pa. 405.

The appeal is quashed.