Linn v. Commonwealth

Mr. Justice Paxson

delivered the opinion of the court, January 3d 1881.

This cause was removed into this court upon a writ of certiorari specially allowed by the chief justice under the thirty-third section of the Criminal Procedure Act of 31st March 1860, Pamph. L. 427. If anything were needed to vindicate the wisdom of this legislation, it is to be found within the four corners of this record.

The defendant below, who is a member of the bar, was indicted imthe Quarter Sessions of Butler county for the offence of perjury. The defendant had filed exceptions to the sufficiency of bail in error in a cause depending in this court. He accompanied the exceptions with his own affidavit, and it was the statements contained in the affidavit that were alleged to be false. There being no law which required exceptions to bail in error to be sworn to, the oath taken by the defendant was extrajudicial, and if false was not the subject of an indictment for perjury. A motion was made in the court below to quash the indictment upon this ground. Instead of doing so the learned judge proceeded to.try the case upon the mistaken idea that it was his duty to let “the light of day” in upon the transaction. This appears by the charge of the court. After instructing the jury that the oath taken by the defendant was extrajudicial, and for that reason there could be no conviction, the court said: “The defendant may, by a legal’ technicality, escape the consequences of the guilt of legal perjury ; yet he may go out of court stained all over — covered all over with moral perjury. He may go out of court a leper with the sin of moral perjury upon him as white as snow. That question is to be considered by you gentlemen in regard to the costs. That is where we feel constrained to say to you this case comes. We might, by giving the benefit of the doubt or doubts to the accused, *288 have kept this case out of court, but we were of the conscientious belief, and are of that belief yet, that it was important that this prosecution should see the light of day — be spread out so the sunlight might penetrate its every part and particle, and to the utmost extent of the'court, that it should receive the condemnation, the moral condemnation that the act deserves.”

This language is intemperate and unfair. It is many degrees removed from the dignity and impartiality which should mark the judicial character. It is far more objectionable than the charge which this court pointedly condemned in Cox v. Derringer, 1 Norris 258, for the reason, amongst others, that Cox v. Derringer was a civil case, while the issue here involved both infamy and imprisonment.

It is but just to the defendant to say that there was' evidence from which the jury might have found that he intended no wrong; that the affidavit was made and filed under a misapprehension; carelessly, perhaps, but not corruptly. Yet of what avail would such evidence be in the face of the language I have cited from the charge ? Coming as it did with the weight of judicial authority, it could not fail to crush the defendant. The verdict imposing the costs upon him followed almost as a matter of course. The defendant having been sentenced to pay the costs, the Commonwealth’s bill was filed. It included $607.46 for pay and mileage of witnesses. But eight witnesses were examined on the part of the Commonwealth; fees and mileage were allowed to eighty-two witnesses. Upon appeal by the defendant the clerk of the Quarter Sessions reduced the bill to $218.28, which, with the record costs, $29.21, was paid by the defendant. The Commonwealth appealed from the taxation of the clerk and the court below set aside his taxation and sustained the entire bill. The present writ of certiorari was intended to reach this ruling upon the question of costs, and error has been assigned thereto.

We need not discuss our power to review the taxation of costs in this proceeding. The judgment itself must be reversed, and the costs fall with it. It was error to sentence the defendant upon an indictment which charged no legal offence. Had the indictment been good it might have been otherwise. Where it sufficiently charges an offence, a failure to convict for want of evidence does not take from the jury the control of the costs in cases of misdemeanors. But where an offence is neither charged nor proved the jury have nothing to do with the costs, nor have they any duties to perform whatever.

The judgment is reversed, the indictment is quashed, and it is further ordered that the defendant have restitution of the taxed costs so far as they have not been paid out by the clerk, or have been received by the prosecutor below; and that the record be remitted.