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COMMONWEALTH v. FOX (07/17/56)

July 17, 1956

COMMONWEALTH
v.
FOX, APPELLANT.



Appeal, No. 31, April T., 1956, from order of Court of Quarter Sessions of Lawrence County, June T., 1955, No. 96, in case of Commonwealth of Pennsylvania v. Wilford Fox. Order reversed.

COUNSEL

Alvah M. Shumaker, with him A. G. Helbling, for appellant.

Gilbert E. Long, Assistant District Attorney, with him Perry L. Reeher, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Rhodes

[ 181 Pa. Super. Page 294]

OPINION BY RHODES, P.J.

The defendant, Wilford Fox, was indicted in the Court of Quarter Sessions of Lawrence County on two counts. The first count charges the crime of fornication and bastardy, and the second charges the crime of fornication. A motion to quash the indictment was refused and defendant was tried before a jury on both counts. At the close of the Commonwealth's case, defendant

[ 181 Pa. Super. Page 295]

    moved to dismiss the first count, charging bastardy, and asked for his discharge. The motion was granted by the trial judge on the ground that the Commonwealth failed to prove non-access of prosecutrix' husband. See Act of June 5, 1937, P.L. 1703, § 1, No. 357, 19 PS § 481. Defendant also moved to dismiss the second count because of purported lack of territorial jurisdiction. The latter motion was refused and defendant does not stress this point on appeal.

At the trial defendant rested without presenting any evidence; he merely submitted a point for binding instructions which was refused by the trial judge. The case was submitted to the jury only on the second count charging fornication, and the trial judge so limited his instructions. A verdict of guilty on that count was returned on June 17, 1955. On June 20, 1955, defendant filed a motion in arrest of judgment relating to his conviction of fornication. Before argument thereon he attempted by written request to withdraw the motion. On September 15, 1955, the matter was nevertheless called for argument before the court in banc, and on September 22, 1955, during the next session of court, the motion in arrest of judgment was refused. But the court, on its own motion, ordered a new trial on both counts of the indictment.

The first question for our consideration is whether the order granting a new trial is appealable. Apparently the order does nothing more than grant a new trial, and would place defendant in the same position as though no previous trial had been held. Com. ex rel. Wallace v. Burke, 158 Pa. Superior Ct. 612, 613, 45 A.2d 871. As a general rule an appeal in a criminal case can be taken to this Court only after judgment of sentence or some other final disposition. Com. v. Haimbach, 151 Pa. Superior Ct. 581, 583, 30 A.2d 653; Com. ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 541-543,

[ 181 Pa. Super. Page 296198]

A. 812; Com. v. Gates, 98 Pa. Superior Ct. 591, 594. There is good reason for the rule. An appeal at every intermediate stage of the proceeding would cause hopeless confusion and extended delay. Moreover, before final judgment or a final order, the court could in most instances correct any error relating to matters of a preliminary nature. Although a majority of cases come within this rule, there are exceptions to it. This has been true where the circumstances were unusual and justice required the exercise of appellate review at this stage of the proceeding. Com. v. Trunk, 311 Pa. 555, 565, 167 A. 333; Com. v. Ragone, 317 Pa. 113, 126, 176 A. 454; Com. v. Kilgallen 379 Pa. 315, 320, 108 A.2d 780; Com. v. Gouger, 21 Pa. Superior Ct. 217, 226; Com. v. Tluchak, 166 Pa. Superior Ct. 16, 21, 70 A.2d 657.In Com. v. Gabor, 209 Pa. 201, 203, 58 A. 278, 279, an appeal from an order granting a new trial was heard and the Supreme Court commented: "... as the appellant claims to be ...


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