
    MORNINGSTAR vs. COMMONWEALTH.
    Where a man defeats a criminal proceeding in the Quarter Sessions by having entered a plea of “Guilty” before the justice, he cannot afterwards withdraw the plea of guilty.
    Error to Common Pleas of Warren County, No. 14 July-Term, 1884.
    B. J. Morningstar was arrested for throwing cajmnne pepper-in H. J. Dreyer’s face, and taken before a Justice of the Peace-
    The facts of the case appear in the opinion of the Court.. whicn was as follows :
    Per Curiam.
    The information before the Justice charged Morningstar with assault and battery only.
    On appearing before the Justice he plead guilty to that» charge.
    
      By the second Section of an Act of Assembly relating to the-counties of Erie and Union, and extended to Warren by. Act. of March 6, 1867, P. L., 354, it was the duty of the Justice to-pass sentence on defendant, which sentence “shall have the full force and effect of a sentence pronounced by the Court of Quarter Sessions in sued cases.” The Justice did not pass sentence, but bound the defendant over to appear at the next Court of Quarter Sessions. At the next Quarter Sessions. Morningstar was indicted; two counts of the indictment charged him with offenses not covered by the information, and a third count charged simple assault and battery.- Morningstar moved to quash the indictment, as to the two counts first mentioned,, for the reason that they charged offenses different from the one-charged in the complaint before the Justice, and as to the other count for the reason that he had already plead guilty to the offence charged in that count in the proceeding before the Justice. The Court quashed the indictment for the reasons assigned by the defendant, and he was discharged.
    Afterwards, on process issued by the Justice, Morningstarwas brought before the Justice for sentence. On his appearance he filed the paper attached to the record protesting that, his arrest was illegal, pleading not guilty, and after reciting the-action of the Court of Quarter Sessions, quashing the indictment before mentioned, he asked the Justice that his former plea might be withdrawn and that he might be permitted to waive an examination, and give bail for his appearance at-the next Quarter Sessions for trial by jury, etc., etc.
    The Justice disregarded the request of the defendant and passed sentence on the plea of guilty, entered by defendant when first brought before him, and in this we think there was-no error.
    Having procured his discharge in the Sessions on the allegation that he had plead guilty before the Justice, and that, therefore the Sessions had no jurisdiction to try him: We think he had no right to withdraw his plea of guilty, and we ask to-be sent, for trial, to the Court whose want of jurisdiction he had successfully maintained.
    
      Having availed himself of the plea of gnilty entered before the Justice to avoid a trial in the Sessions, we think he has no right to complain if he is made to abide by that plea.
    The exceptions are dismissed and the proceedings before the Justice affirmed.
    Morningstar then took a writ of error complaining of the action of the Court in affirming the proceedings before the Justice.
    
      S. T. Neill, Esq., for plaintiff in error,
    argued that the Act of March 6, 1867, P. L., 354, was unconstitutional. That the jury having been sworn, and the evidence been heard, it was •error to discharge the jury, and quash the indictment and deprive the prisoner of his right to a verdict. The discharge of the jury under these circumstances wras equivalent to a verdict for defendant; Commonwealth vs. Cook, 6 S. & R., 577; Commonwealth vs. Clue, 3 R., 498; McFadden vs. Commonwrealth, 23 Pa., 12. Morningstar should have been allowed to wdth•draw the plea of “guilty;” Commonwealth vs. Gerrity, 1 Lackawanna L. Rec., 430.
   • The Supreme Court affirmed the judgment of the Common Pleas on June 9th, 1884, in the following opinion :

Per Curiam.

The plaintiff in error plead guilty to the charge preferred •against him. He availed himself of that plea to avoid a trial in the Quarter Sessions. He cannot now deny that plea, nor avoid its effect.

Judgment affirmed.  