
    Commonwealth v. Randall
    
      P. G. Cober, district attorney, for Commonwealth.
    
      J. A. Berkey, for defendant.
    July 1, 1935.
   Boose, P. J.,

This case presents a complicated record. The defendant was originally indicted to no. 14, September sessions, 1934, for (1) obstructing legal process, and (2) assault and battery. This bill of indictment was found by the grand jury on August 27, 1934, based upon an information alleging that the defendant resisted the service of a warrant issued by Frank J. Springer, a justice of the peace. Upon the trial it appeared the warrant was issued by the burgess of Benson Borough upon an entirely different complaint. Here there was a fatal variance between the allegata and the probata, whereupon the court sustained the defendant’s motion in arrest of judgment and for a new trial. We could do nothing else under the facts and circumstances as presented at the trial.

Subsequently, on November 28,1934, by leave of court, the district attorney laid before the grand jury a second bill against the same defendant charging him with the same offense, and based upon the same information. When this case was called for trial, on December 11, 1934, the defendant again presented a motion to quash, which was sustained.

We now have the district attorney’s motion to revoke the order quashing the second indictment. We have examined the cases cited by the district attorney in his original and supplemental briefs, and they do raise the question of the right of the court to quash the second bill of indictment.

We shall not question the attitude of the district attorney in trying to again press this case to trial. It can only involve the county in a large bill of costs. However, the district attorney is a quasi-judicial officer, and if he feels that the importance and merits of the case warrant a new trial, he may press the ease for retrial.

Decree

Now, July 1, 1935, the rule to show cause why the order quashing the indictment should not be taken off is made absolute, and the case is ordered back on the trial list.  