John Patrick Walsh, Leon Rosenfield, Philadelphia, for appellant.
Americo v. Cortese, Asst. Dist. Atty., John Maurer, District Attorney, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 467]
James Comber appeals from a conviction of assault and battery upon one Madden. Previously he had been tried before a single jury and acquitted on indictments (a) for murder and (b) voluntary and involuntary manslaughter.
In the instant trial the defendant, alleging the verdicts of not guilty in the murder and manslaughter indictments, interposed a special plea of autrefois acquit, and now asserts that the adverse ruling thereon was error.
In the murder and manslaughter indictments the jury had to be convinced beyond a reasonable doubt that Madden died as a result of the wounds inflicted by appellant, and at that trial the defendant claimed that such was not proved.
Appellant argues that the verdict of not guilty in the homicide trials was a finding of his innocence. This is a colloquialism and as a matter of law is incorrect. Such a verdict only established that the Commonwealth did not prove, beyond a reasonable doubt, one or more
[ 170 Pa. Super. Page 468]
of the ingredients necessary to convict. In Commonwealth v. Greevy, 271 Pa. 95, 114 A. 511, the defendant had been acquitted on an indictment charging murder; was thereafter placed on trial for involuntary manslaughter and convicted; and on his appeal the Supreme Court said, 271 Pa. at page 101, 114 A. at page 513: '* * * but this [the verdict in the murder indictment] does not mean, as defendant asserts, that every defense he interposes [on the murder indictment] is established, for he cannot point to any one of those defenses, and say it was upheld by the jury.' In the instant case there was no finding by the jury in the murder and manslaughter indictments that this defendant was upheld as to any one of the defenses he presented.
In Commonwealth v. Moon, 151 Pa. Super. 555, 30 A.2d 704, 708, our now President Judge Rhodes stated: 'The test in the plea of autrefois acquit * * * is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. * * * [citing, inter alia, Commonwealth v. Forney, 88 Pa. Super. 451].'
Obviously the evidence in the present assault and battery case would not have been sufficient to secure a conviction in either the murder or manslaughter trial, if for no other reason than because the Commonwealth did not offer ...