Appeal, No. 51, April T., 1959, from order of Court of Quarter Sessions of Mercer County, June T., 1958, No. 57, in case of Commonwealth of Pennsylvania v. Joseph Marek. Order reversed.
John R. Boland, Jr., for appellant.
William J. Joyce, County Solicitor, with him John Q. Stranahan, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 347]
This proceeding had its inception when a police officer of the City of Sharon, following a raid, filed informations against officers of a fraternal organization in that municipality charging them with setting up a lottery and possessing gambling devices. On June 4, 1958, the Mercer County grand jury ignored the resulting bills of indictment and placed the costs on Michael J. Dunn, Mayor of the City of Sharon, as the real prosecutor. Dunn had ordered the raid, but his name was not endorsed on the indictments as the prosecutor, and he was not called as a witness before the grand jury. Dunn presented a timely petition for a rule on the District Attorney of Mercer County to show cause why the costs imposed upon him by the grand jury
[ 191 Pa. Super. Page 348]
should not be set aside. To the rule granted on this petition the district attorney filed an answer. The County of Mercer was permitted to intervene and also filed an answer. At the time fixed for hearing on the rule, Dunn took the position that the imposition upon him of costs by the grand jury was irregular as a matter of law, and elected not to present any testimony. The court below thereafter discharged the rule.*fn1 Dunn has appealed.
The question before us, apparently one of first appellate impression in this Commonwealth, is whether a grand jury, upon ignoring a bill of indictment, may lawfully impose the costs upon a person neither endorsed on the bill as the prosecutor nor called as a witness. Our answer to this question is in the negative.
Section 62 of the Act of March 31, 1860, P.L. 427, 19 P.S. 1222, which deals with the power of grand and petit juries over costs, reads as follows: "In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall
[ 191 Pa. Super. Page 349]
determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the ...