Opinion
April 19, 1948.
July 23, 1948.
Criminal law — Practice — New trial — Term of court.
In the absence of an allegation of fraud or its equivalent, the common law power of the lower court to set aside a judgment and sentence and grant a new trial expires with the end of the term in which the judgment was entered.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and FINE, JJ.
Appeal, No. 102, Oct. T., 1948, from decree of Oyer and Terminer and Quarter Sessions, Lancaster Co., June T., 1947, No. 184, in case of Commonwealth v. Gilbert R. Carpenter. Appeal dismissed.
Indictments charging defendant with sodomy, assault with intent to commit sodomy and solicitation to commit sodomy. Before SCHAEFFER, P.J.
Verdict of guilty on all counts and judgment of sentence entered thereon; defendant's petition for new trial nunc pro tunc refused. Defendant appealed.
Frank J. Strassner, Jr., with him Herbert L. Maris, for appellant.
John W. Beyer, Assistant District Attorney, with him John Milton Ranck, District Attorney, for appellee.
Argued April 19, 1948.
Appellant was tried and convicted in the court below, and on September 11, 1947, he was sentenced. On February 6, 1948, five months after sentence and long after the expiration of the term at which he was sentenced, he filed a petition for rule to show cause why a motion for new trial should not be allowed nunc pro tunc. Appellant's sole complaint was that the evidence was insufficient to sustain a conviction. This appeal is from the order of the court below refusing to grant a rule in accordance with the prayer of the petition. In the absence of an allegation of fraud or its equivalent, the common law power of the court below to set aside the judgment and sentence and grant a new trial expired with the end of the term at which the judgment was entered. Com. v. Grow, 48 Pa. Super. 373, 380. See, also, Com. v. Monaghan, 162 Pa. Super. 530, 58 A.2d 486.
Appeal is dismissed.