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COMMONWEALTH v. ROSE (03/20/69)

decided: March 20, 1969.

COMMONWEALTH, APPELLANT,
v.
ROSE



Appeal from order of Court of Quarter Sessions of Montgomery County, June T., 1967, No. 148, in case of Commonwealth of Pennsylvania v. Joseph Rose.

COUNSEL

William T. Nicholas, Assistant District Attorney, with him Richard A. Devlin, Henry T. Crocker and George W. Tracy, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellant.

Vincent A. Cirillo, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 214 Pa. Super. Page 51]

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Montgomery County quashing an indictment of perjury against appellee Joseph Rose.

On June 20, 1967, appellee was tried on charges of fornication and bastardy, the jury returning a verdict of acquittal. In his defense, appellee testified that he could not have engaged in intercourse with the prosecutrix in February 1964 because he was enrolled in an

[ 214 Pa. Super. Page 52]

Army training course in Aberdeen, Maryland from February 2, 1964, until March 20, 1964. In rebuttal, the Commonwealth presented the Sergeant responsible for Pennsylvania Army National Guard personnel records who testified that the records indicated appellee had received his final discharge from the Army about 5 months prior to his alleged attendance in the training course. At the close of the trial, the District Attorney requested the trial judge to sit as a committing magistrate and hold appellee on a charge of perjury based on the conflict in testimony. Over the objection of appellee, this request was granted and appellee was held for court on $100 bail. Appellee's subsequent indictment for perjury was quashed by the court below, precipitating this appeal by the Commonwealth.

The court below granted appellee's motion to quash the indictment on the grounds that the perjury statute did not apply to false statements given under oath to influence a jury verdict, that appellee could not be indicted for perjury after having been acquitted, and that the trial judge acting as committing magistrate failed to comply with the Rules of Criminal Procedure relating to pre-indictment proceedings. We hold that the court below erred in quashing the indictment.

The perjury statute provides:

"Whoever wilfully and corruptly makes false oral or written statements, or testimony upon oath or affirmation, legally administered either before any committee of the legislature, or in any judicial proceeding, matter or cause which may be pending in any of the courts, or before any judge, magistrate or mayor, or before any arbitrator, prothonotary, clerk, notary public, commissioner or auditor, . . . or preparatory and for the purpose of obtaining any rule or order of ...


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