Opinion
October 22, 1925.
February 26, 1926.
Practice C.P. — Granting of new trial — Discretion of lower court — Directed verdict.
The trial judge cannot be required to entertain a motion to direct a verdict of acquittal until the conclusion of all the testimony.
The granting of a new trial is in the discretion of the trial court. On appeal the trial court will not be reversed except for plain error, or abuse of discretion. Matters not raised in the trial in the court below will not be considered on appeal.
Appeal No. 31, April T., 1926, by defendant from judgment and sentence of Q.S. Allegheny County, February Sessions, 1921, No. 942, in the case of Commonwealth v. Gabor D. Popp et al. Appeal of Gabor D. Popp.
Before PORTER, HENDERSON, TREXLER, KELLER, LINN and GAWTHROP, JJ. Affirmed.
Indictment for embezzlement. Before REID, J.
The opinion of the Superior Court states the case.
Verdict of guilty, on which judgment of sentence was passed. Defendants appealed.
Error assigned was, among others, the court's refusal to direct a verdict for the defendants.
A.C. Purdy, of Scott and Purdy, for appellant.
Benjamin Lencher, Assistant District Attorney, and with him Samuel H. Gardner, District Attorney, for appellee.
Argued October 22, 1925.
There are two assignments of error. The first charges the court with error in refusing the defendant's motion at the close of the Commonwealth's case, to the effect that the court direct a verdict for the defendants. This motion was overruled. The trial judge cannot be required to entertain a motion to direct a verdict of acquittal until the conclusion of all the testimony. This matter was fully discussed in Commonwealth v. Sonis and Sonis, 81 Pa. Super. 205, by our Brother PORTER, now President Judge, and it will not be necessary to repeat what was there said.
The second assignment is directed to the refusal of the court to grant a new trial. The granting of a new trial is in the discretion of the trial court. It will not be reversed except for a plain error or abuse of discretion. Class and Nachod Brewing Co. v. Giacobello, 277 Pa. 530. We have read the record and the verdict was fully justified by the testimony. Furthermore, in all the reasons assigned for a new trial in the court below, there is no suggestion that the court committed an error such as is referred to in the argument on appeal. The uniform rule in the appellate courts is: they will not consider matters that have not been raised in the trial in the court below. As there is nothing properly before us in this case, we sustain the judgment without further consideration of the questions presented by the appellant.
The assignments of error are overruled. The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.