
    Smith versus Commonwealth.
    1. The pendency of an indictment is not ground for a plea in abatement to a second indictment charging substantially the same offence.
    2. A defendant was indicted for perjury, tried and convicted, and-the court granted a new trial on technical grounds. Thereupon a new indictment was found, charging the same substantive offence. The defendant pleaded, specially, the pendency of the first indictment, and, under protest, not guilty. The district attorney moved to quash the first indictment, or enter a nolle prosequi, to which the defendant interposed objection, and the trial proceed on the second indictment; the jury found a verdict of guilty, and the defendant was sentenced: Held, that there was no error in the record.
    October 18th 1883.
    Before Merc or, O. J., Gordon, Paxson, Trunkey, Sterrett and Clark, JJ. Green, J., absent.
    Error to the Court of Quarter Sessions of Butler county:' Of October and November Term 1883, No. 173.
    Indictment of John Smith, for perjury, No. 31, December Sessions 1882. The defendant filed the following plea :
    And now, to wit, April 16th 1883, the defendant- pleads that there is another bill of indictment pending in the same court at Quarter Sessions, No. 28, of June Term 1882, cliarg-' ing the same act and offence, to which said bill be has already pleaded, and remains undetermined, the defendant having of-’ fered to go to trial thereon, which was deuied ; and for Lis further plea in this behalf, under protest, pleads not guilty to this indictment.
    The first indictment, to No. 28 June Term, 1882, charged ' the defendant with perjury, committed in an oath taken before N. M. Greer, prothonotary; the proof showed that the oath was administered in open court by John Brown, clerk of the prothonotary. The defendant having been convicted on that indictment, the court, on motion, grauted a new trial, on the ’ ground that the allegata and probata did not agree.
    Thereupon, the present indictment was found, charging perjury in the oath so administered in open court, the court having full authority, &c.
    When the case was called for trial, the district attorney moved to quash the former indictment, or to enter a nolle prosequi thereon. To this the defendant objected, and the trial ’ proceeded. At the close of the Commonwealth’s case, the defendant offered in evidence the former indictment, which the ' court rejected. Exception.
    Verdict, guilty. Motions in arrest of judgment and for a new trial were overruled, and the defendant was sentenced. He thereupon took this writ of error, assigning for error, inter alia, the action of the court in compelling the defendant to plead and go to trial upon the second indictment, a prior indictment for the same substantive offence being pending and undetermined.
    
      J. Q. Sullivan and L. Z. Mitchell, for the plaintiff in error.
    
      Charles McCandless (with him W. A. Forquer and A. M.. Cunningham, district attorney), for the Commonwealth.
   Mr. Justice Sterrett

delivered the opinion of the court, November 5th 1883.

The only specifications of error, that are worthy of even a passing notice, are grounded on the pendency of the first indictment, No. 28 of June sessions 1882, found several months before the one on which plaintiff in error was tried, convicted and sentenced. The motions to quash the indictment and in arrest of judgment, as well as the so called special plea and the rulings of the court in reference thereto, etc., are all based on the existence of the prior, pending and undetermined indictment. The several specifications relating to these subjects, respectively, have no other foundation on which to rest, and if that is insufficient they cannot be sustained.

The plaintiff in error was tried on the first indictment and convicted, but the court set aside the verdict and granted a new trial, because the offence was defectively charged, and the allegata and probata did not agree. Instead of attempting to remedy the defect by amendment, a new information was made and another bill duly found and returned by the grand jury. Substantially the same matters are charged in both indictments, as constituting the crime of perjury, but there are such essential points of difference between them, in the manner of charging the offence, that if defendant had been tried a second time on the first indictment, with the same evidence as that given on the former trial, in all probability he would have been acquitted. It is not at all surprising, therefore, that he should demand a trial on the first rather than the second indictment. A trial and acquittal on the former would have afforded him at least a plausible pretext for pleading autrefois acquit to 'the second indictment. The district attorney claimed the right, and, with ■consent of court, elected to try on the second indictment, and at the same time offered to enter a nolle prosequi on the first, or to agree that it be quashed, but defendant objected, and in consequence thereof nothing was done. Under these circumstances,'it is difficult to see any valid objection to the action of the court in sustaining the district attorney and ordering the trial to proceed on the second indictment. The pendency of the first indictment was no obstacle, much less a bar to a trial on the second. How could it be otherwise ? After the verdict was set aside and a new trial granted, the case stood as it did before trial, at issue on the plea of not guilty. The pendency of that issue could not be plead, either as a former conviction or acquittal. Indeed, it is impossible to see how it could stand in the way of a trial on the second indictment. If both indictments were confessedly for the same offence, an acquittal or conviction on either would shield the defendant from conviction on the other. If they were for different offences, he could have no valid objection to being tried on both. It is well settled, on both reason and authority, that the pendency of an indictment is not good ground for a plea in abatement to another indictment in the same court for the same cause. Whenever either of them, — and it matters not which, —is tried and judgment pronounced thereon, such judgment will afford a good plea in bar to the other, either of autrefois convict, or autrefois acquit; but nothing short of a conviction or acquittal will support such a plea: Commonwealth v. Drew, 3 Cushing 279; Regina v. Goddard, 2 Ld. Raymond 920; Whart. Crim. Pleading and Practice, § 431; 2 Hawkins P. C. 309; Fosters C. L. 105; 1 Chitty C. L. 446. If it had not been for the objection interposed by the defendant, the first indictment would have been disposed of by entering a nolle prosequi thereon, or otherwise, before the trial on the second commenced. It follows from what has been said that the so-called special plea was a nullity, and the court committed no error in so treating it.

The subject of complaint in the first specification is the refusal of the court to quash the indictment. In support of the motion to quash, thirteen reasons were urged, the chief of which is the pendency of the first indictment. That reason, as has been observed, underlies nearly all the assignments of error. It has already been considered, and it is therefore unnecessary to add anything to what has just been said on the subject^. There is nothing in any of the reasons assigned that would have justified the court in quashing the indictment.

For reasons already” suggested the second and third specifications, both of which relate to the pendency of the first indictment, are not sustained.

The fourth specification, that “ the court erred in going into the jury box on questions of fact,” etc., as the plaintiff in error expresses it, is an unjust reflection on the learned judge before whom the case was tried. His charge was quite as favorable to the defendant on trial, as he had any right to expect. In it the law of the case was clearly presented, and the facts were fairly submitted to the jury, without any apparent effort, on his part, to invade their province.

The grounds upon which the motion in arrest of judgment was based are clearly insufficient, and hence there was no error in overruling the motion.

The subjects of complaint in the remaining specifications are the rejection and also the admission of the evidence therein referred to. We find no error in any of the rulings of the court on these subjects. There is nothing in the record that calls for a reversal of the judgment.

The judgment of the court of Quarter Sessions is affirmed, and it is ordered that the record be remitted to said court for the purpose of carrying said judgment into effect.  