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COMMONWEALTH v. MOORE (11/12/52)

SUPERIOR COURT OF PENNSYLVANIA


November 12, 1952

COMMONWEALTH
v.
MOORE

COUNSEL

Willis A. MacDonald, Butler, for appellant.

No brief or appearance for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

[ 172 Pa. Super. Page 28]

PER CURIAM.

Defendant was tried in the Court of Oyer and Terminer of Butler County on three bills of indictment

[ 172 Pa. Super. Page 29]

    which charged (1) assault with intent to ravish; (2) indecent assault; and (3) contributing to the delinquency of a minor. He was acquitted on the first two charges, and found guilty of the third -- contributing to the delinquency of a minor. The court thereupon directed the defendant 'to pay the costs of prosecution, and further sentence suspended.' Defendant has appealed.

The appeal will be quashed. We have held that where a defendant is convicted of a criminal offense and sentence is suspended, there is no judgment to support an appeal. Com. v. Mellon, 81 Pa. Super. 20; Com. v. Lipschutz, 89 Pa. Super. 142; Com. v. Torr, 111 Pa. Super. 178, 169 A. 238. See Note, 126 A.L.R. 1210. While this rule is not an inflexible one and will yield in exceptional cases to prevent injustice to a defendant, Com. v. Trunk, 311 Pa. 555, 167 A. 333; Com. v. Ragone, 317 Pa. 113, 176 A. 454; Com. v. Haines, 130 Pa. Super. 196, 196 A. 621; Com. v. Tluchak, 166 Pa. Super. 16, 21, 70 A.2d 657, the facts of this case do not fall within any of the recognized exceptions. See Com. v. Sarricks, 161 Pa. Super. 577, 56 A.2d 323.

Furthermore, the order of the court directing payment of costs does not save defendant's appeal. In Com. v. Cauffiel, 97 Pa. Super. 202, at page 205, appeal refused 298 Pa. 319, 148 A. 311, under like circumstances, this Court said: 'The orders of the court directing the defendant to pay the costs of prosecution and suspending sentence were not sentences within the meaning of the law: Com. v. Hamel, 44 Pa. Super. 464; Com. v. Dunleavy, 16 Pa. Super. 380. The liability of a defendant for costs is not a part of the penalty imposed by the statutes which provide for the punishment of these offenses. Such liability is an incident of the judgment, arising out of our statutes providing

[ 172 Pa. Super. Page 30]

    for the payment of costs in criminal proceedings. Porter, J., in Com. v. Hamel, supra. Until there is a sentence upon a bill no appeal lies.'

The appeal is quashed.

19521112

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