Butler citizen. [volume] (Butler, Pa.) 1877-1922, 1883-08-01
COMMONWEALTH
VS..
J O HI NJ s WI 1T III.
INDICTED FOR PERJURY
Opinion by Hon. jeremiah S.
Black.

| long detail OF tne laclS dnleceuenI U
the Indictment But write for thos
who know all about it and who will
need no explanation of any allusion
| which | have to make.
On the trial of this cause the de
fendant pleaded former indictment fo
the same offence as still pending, ant
| therefore bar to the second.
If the first indictment was goot
| one on its face, he was still in jeopardy
| and though not fiat bar, like an &C
quittal or conviction, it was defence
| to a new indictment as long as it hung
over his head. The public accusel
cannot pursue party on two tracks al
the same time, unless it be manifest
as matter Of laU, that on one of them
he is in no possible danger of being
sentenced. Here both indictments are
equally good-that is to say, one was
good il the other was. On the first
there had been an actual trial and a
verdict of guilty, but the verdict was
set aside, not because the Indictment
was defective, but because it was not
sustained by the evidence. The indict-
ment charged that the oath had been
administered by the deputy Prothono-
tary-the proof showed that it was ad-
miDistered by the court; therefore, and
therefore only, new trial was granted.
That did not impugn the soundness Of
the Indictment. 1t implied that, in the
opinion of the court, the evidence was
80 far at variance with it that O new
trial was necessary to see whether the
probota could be made to come up to
the allegata. Here then were two in
dictments, on either of which if proved
to be true, he could be legally convict
ed. Had he not clear legal right to
demand that the first one be either
formally abandoned, or else determined,
before he was called on to answer the
second? If this question be answered
in the affirmative, another rises How
could be assert this right except by
pleading the fact
The record shows that he did plead
it, stating the fact and concluding to
the country. The representative of the
Commonwealth denied the fact and
went to the country also. Thereupon
jury was called, came, and were
sworn to try that very issue and the
onus probandi being on the defendant,
he offered the record to sustain the is
sue on his part and the court refused to
let the jury hear it, Whatever the
Judge may think of the plea or its
value in law, he will on reflection see
that he had not right to exclude the
proof Of it from the jury. If it had
been demurred to he might have de-
clcred it insufficient. But when the
Commonwealth conceded its validity
and denied only its truth, it was GER
tainly due to the party-nay to both
parties-that the defendant should be
permitted to show what the truth was.
The error committed in ruling out
this evidence resulted in duplicating
the proceeding against the defendant
after fashion | never saw or heard oi
before. The accusing party pushed the
proceedings upon both indictments
with hostility so unrelenting that be
forced trial on the first indictment
while the jury were considering their
verdict on the second one. The two
lines of deadly assault converged upon
the defendant almost simultaneously
No man shall be twice vexed or put in
jeopardy for the same cause. Here a
man was twice vexed on the same day
for precisely the same cause. Convic
tion or acquittal upon one might have
been pleaded as full defence but the
trials were so timed that he could not
show the result of one to shield him
from the other. He was compelled tC
anticipate by pleading their pendency
which he did, but was not permitted tc
show the truth. The effect of this
ruling was exactly the same as if the
trial on one indictment had taken place
and judgment of acquittal had been
pronounced in time to plead it to the
other, and the court had then refused
to look at the record or let the jury SEE
it.
1t is no answer to this to say thai
the defendant was afterwards acquitted
on the first Indictment On the con-
trary it showed more conclusively than
anything else how much he was wrong
ed. If he had been first tried on the
first indictment and acquitted, his plea
would most undoubtedly have beer
listened to with attention, and the
question of fact and law which now
stands undecided either for him or
against him would have been legally
disposed Of For reasons to be giver
presently | think it would have been a
conclusive defence. But whether this
be certain or doubtful, the defendant
was deprived of a right when he was
pushed into trial and pushed through
it without being permitted to raise the
question.
! have said the first indictment was
good upon its face. There was nc
cause of demurrer, nor was there any
error upon which it could be quashed
The Court set aside the verdict upoI
it because the evidence did not sustain
it in one particular, namely, that i
alleged the oath to have been admins
tered by M. n. Greer, Prothonotary
who had competent authority to ad
minister oaths - whereas the proc
showed that he was sworn by tn
Court. The second Indictment is al
effort to make the allegation conform
to the fact, but it does not succeed. In
stead of stating the simple truth. as th
evidence in both trials showed it to be
that the oath was administered by tt
Court, it is alleged in the second il
dictment to have been administered b
one Brown, who was the deputy {
Greer, that Greer had authority to az