Opinion
March 10, 1941.
April 16, 1941.
Appeals — Parties — Criminal law — Commonwealth — Judgments of acquittal — Rulings on evidence — Constitutionality of statute — Act of May 1, 1929, P.L. 905.
1. The Commonwealth cannot appeal from a judgment of acquittal in criminal prosecutions, except in cases of nuisance, forcible entry and detainer, and forcible detainer.
2. Such rule is applicable whether the prosecution be by indictment, or by summary proceeding.
3. In this case, appeals by the Commonwealth from judgments of the court of quarter sessions, acquitting the defendants charged with violation of section 1002(c) of the Vehicle Code of May 1, 1929, P.L. 905, as amended, regulating the lawful speed of motor vehicles, based on the trial judge's alleged error of law in refusing to receive in evidence a certificate as to the accuracy of the speedometer used by the witnesses for the prosecution and involving the constitutionality of the statute dealing with the admissibility of such certificates, were quashed.
Appeals, Nos. 178-180, April T., 1941, from orders of Quarter Sessions, Venango Co., April Sessions, 1940, Nos. 12-14, in cases of Commonwealth v. Roy P. Obenreder; Commonwealth v. Harold B. Schrecengost and Commonwealth v. John W. Sharp.
Before KELLER, P.J., CUNNINGHAM, STADTFELD, RHODES and HIRT, JJ. Appeal in each case quashed.
Prosecutions for violation of section 1002 (c) of Vehicle Code. Before McCRACKEN, P.J.
The facts are stated in the opinion of the Superior Court.
Judgment of acquittal entered in each case. Commonwealth appealed.
Errors assigned in each case, among others, related to various rulings on evidence.
William M. Rutter, Deputy Attorney General, with him Maurice P. Breene, District Attorney, George W. Keitel, Assistant Deputy Attorney General, and Claude T. Reno, Attorney General, for appellant.
No appearance was made nor brief filed for appellee.
Argued March 10, 1941.
These three appellees were severally arrested for violating section 1002(c) of the Vehicle Code of May 1, 1929, P.L. 905, as amended, (75 Pa.C.S.A. § 501(c)), regulating the lawful speed of motor vehicles, and having appeared before a justice of the peace, waived summary hearing and gave bond for their respective appearances for trial before a judge of the Court of Quarter Sessions of Venango County, as provided in said Vehicle Code, sec. 704, as amended June 22, 1931, P.L. 815, sec. 2, p. 829, 75 Pa.C.S.A. § 1094(b).
The cases were tried together before the President Judge of the court. Testimony was heard, but was not taken stenographically or transcribed. The judge entered judgments of acquittal, from which the Commonwealth has taken these appeals. The appeals are based on the judge's alleged error of law in refusing to receive in evidence the certificate of the LeJeal Automotive Service, (said to have been designated as an Official Speedometer Testing Station by the Secretary of Revenue), that it had tested and found accurate the speedometer on the motor vehicle used to time the speed of the defendant's respective motor vehicles, in accordance with the provisions of the Motor Vehicle Act of 1929, as amended by Act of June 27, 1939, P.L. 1135, sec. 1002(d) (1), pp. 1175, 1176, 75 Pa.C.S.A. § 501(d) (1). The appeals must be quashed.
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). 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. The matter was fully discussed by us in Com. v. Benson, 94 Pa. Super. 10, 15-19. See Com. v. Supansic, 93 Pa. Super. 111, 113 (appeal from order granting new trial, dismissed).
Com. v. Wallace, 114 Pa. 405, 6 A. 685; Com. v. Sober, 15 Pa. Super. 520; Com. v. Immel, 33 Pa. Super. 388; Com. v. Church, 1 Pa. 105.
Com. v. Heikes, 26 Pa. 513; Com. v. Curry, 4 Pa. Super. 856; Com. v. Hazen, 20 Pa. Super. 487.
Com. v. Kolsky, 100 Pa. Super. 596, 598.
The Supreme Court and this court have expressly ruled that "To erroneous decisions made on the trial which may cause the acquittal of the accused, except in the three misdemeanors already mentioned, [nuisance, forcible entry and detainer, and forcible detainer] the Commonwealth cannot except, and such decisions cannot be reviewed": Com. v. Wallace, 114 Pa. 405, 411, 6 A. 685; Com. v. Coble, 9 Pa. Super. 215, 218.
It must be borne in mind that the constitutionality of the statute under which the defendants were prosecuted is not involved in these appeals, but only the constitutionality of a statute dealing with the admissibility in evidence of the certificate as to the accuracy of the speedometer used by the witnesses for the prosecution. The error, if any, was in the exclusion of evidence on the trial. In such case, the extract from the opinion of the Supreme Court in Com. v. allace, supra, above quoted, and the following extract from the opinion in Com. v. Preston, 92 Pa. Super. 159, 162 are specially appropriate: "The correctness of the construction of the statute by the court below may involve an important question, but the more important the question the stronger the reason for withholding an expression of an opinion upon it until it arises in a real dispute, where the appellate court has jurisdiction of an appeal by a defendant alleging that he has been improperly convicted. 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. The defendant having been adjudged not guilty by the court which had jurisdiction to try him, we are without authority, in the circumstances here presented, to reverse that judgment and order a new trial."
Italics added.
The appeal in each case is quashed.