The offense charged in the indictment is that the accused "knowingly" inserted or caused to be inserted "false figures __________ in the tally paper" and "return sheet," not that he failed to discover possible frauds perpetrated by others.
In order to have the evidence against one, prosecuted for a criminal offense, presented to a jury, the proofs relied on must show, (1) that the offense alleged was in *Page 436 fact perpetrated; and (2), when this is established, that the person indicted took part in its commission. When the evidence relied on by the Commonwealth fails to show these essential facts beyond a reasonable doubt, and the accused requests the trial court so to instruct the jury (as he did in the present instance), if the request is refused, defendant is entitled, on appeal, to be discharged from his recognizance: Pauli v. Com.,89 Pa. 432, 436; Com. v. Ruddle, 142 Pa. 144, 149; Com. v. Harris, 168 Pa. 619, 628; Com. v. Yost, 197 Pa. 171, 177; Com. v. Barrett, 28 Pa. Super. 112, 114, 116. In connection with the foregoing cases, we may state that a reversal without further order "ipso facto operates to discharge the accused": 12 Cyc. 944, sec. h.
Of course, a criminal charge may be sustained by circumstantial evidence, but such proofs must show guilt beyond a reasonable doubt. It is a principle of the criminal law that every fact essential to a conviction must be proved beyond a reasonable doubt, for, as said by Mr. Justice BROWN, in Com. v. Yost, 197 Pa. 171, 175, when a defendant is in a "criminal court, nothing is to be presumed against him," meaning no fact material to the case of the Commonwealth. The rule on review is stated in 17 C. J. 223, thus: "The appellate court cannot presume the existence of essential facts not warranted by the evidence."
Here, while a judge who sat on the return board gave testimony to the effect that there were more votes tallied and returned for a certain candidate than were marked for him on the ballots, and that there were less votes tallied and returned for another candidate than marked for him on the ballots (evidence which was objected to and should have been excluded on the grounds that the writings themselves were the best and therefore the only proper proofs of the facts the Commonwealth was then seeking to establish), yet the prime factor relied on to convict defendant was the circumstance that certain ballots found in the box were apparently mutilated. There *Page 437 is no proof whatever that defendant took any part in marking or changing the marks on these ballots. So far as the evidence goes, every one of them may have been badly marked and erasures made thereon by the voters themselves; but, however that may be, defendant was charged only as a clerk of the election board, and, under the law, such officers do not handle the ballots, they merely assist in tabulating them from the facts called out by other election officials. The record is entirely bare of proof that defendant committed, or took part in, any of the false or fraudulent acts charged, or that he was in fact present at the count of the votes or in any manner officiated therein or even that the name Alex. Cover signed to the papers, was in fact his signature, the only item of evidence offered to connect him with the offenses alleged being the fact that the election tally and return sheet have a name on them which is similar to his.
As well stated in the unanimous opinion of the Superior Court, reversing the judgment of the Quarter Sessions of Cambria County (83 Pa. Super. 402, 407-8): "The district attorney contented himself by merely offering proof of alleged irregularities, erasures, etc., appearing in the ballots when produced before the return board; there was not an iota of testimony in the case connecting [defendant] with the commission of the crime [alleged], or showing [he was] in a position to commit it. __________ This appellant, by appearing in court and pleading [not guilty] __________ may have admitted that he was the Alex. Cover named in the indictment, but he did not thereby admit that he was one of the __________ acting clerks of the election board __________ or waive proof of that essential fact __________; it was a necessary averment of fact which, in order to secure conviction, had to be proved __________ and this the Commonwealth wholly failed to do. It is just as reasonable to ask for a conviction of larceny by proof that goods were stolen, without connecting the [particular] defendant [at bar] with the *Page 438 theft, as to attempt to secure conviction for violating the election laws by evidence that, when the ballot box was opened, the ballots showed erasures, etc., but without proof as to who were the members of the election board and in a position to alter the ballots. __________ In the ordinary course of his duties as clerk, appellant was not required to handle any of the ballots which it is alleged bore unlawful erasures or insertions. If he went outside the line of the duties marked out for him by statute and participated in __________ unlawful conduct, some evidence in support of that fact should have been produced. __________ Zeal in the prosecution of violators of our election laws is always to be commended, but it is best to exhibit it in the careful preparation of the case and in the production of the necessary proof; convictions may not be sustained even as to election cases without evidence supporting the material averments of the indictment."
The authorities cited in the majority opinion, to sustain the rule that "identity of name is prima facie evidence of identity of person," are on the civil side of the law where the rule as to proof beyond reasonable doubt does not prevail; as said by the Superior Court, the most that the facts of the case at bar proved was that defendant Cover was the same Cover named in the indictment, not that he acted as a clerk of the election or was present at or took part in the commission of any of the offenses charged by the indictment. Section 10 of the Act of May 23, 1887, P. L. 158, 161, expressly provides that "The neglect or refusal of any defendant actually upon trial in a criminal court to offer himself as a witness [shall not] be treated as creating any presumption against him," yet the majority opinion treats defendant's "absence of denial" that he was an active election officer as sufficient to create the presumption that he was in fact such an officer.
Since the evidence adduced was wholly insufficient to take the case to the jury, defendant was entitled to acquittal as a matter of law and, under well-established *Page 439 rules of criminal jurisprudence, he cannot now properly be put to another trial for the purpose of affording the Commonwealth an opportunity of filling up the gaps in its proofs; on such a rule as that, one charged with a criminal offense might be obliged to stand trial innumerable times until his powers of resistance were exhausted. Such is not, and never has been, the law of Pennsylvania.
In this case, at the close of the evidence as presented, defendant was entitled to have his request for binding instructions affirmed, which, necessarily, would have led to his immediate discharge at our hands. "Common law rules prevented any action by appellate courts on reversal except to discharge the prisoner" (12 Cyc. 940, section c); now we can render such judgment as should have been given by the trial court, and in our opinion the accused ought to be discharged on appeal where the evidence in the trial court was insufficient to establish the offense (State v. Crawford, 98 S.E. (W.Va.) 615, 617; People v. Gaige, 23 Mich. 93, 95); this view accords not only with the best opinion elsewhere, but with the prior judgment of our court. In Com. v. Yost, 11 Pa. Super. 323, defendant was acquitted of the criminal charge of maintaining a nuisance by polluting the water of a stream used for domestic purposes; the Commonwealth appealed (the case being within the very limited class where the State has that right); the Superior Court, assuming many facts suggested as existent by the evidence, but (in the view of the Supreme Court) not proved, set aside the verdict, reversed the judgment, and "ordered that the case be again tried." On appeal, we said (197 Pa. 171, 176, 177) defendant was entitled to binding instructions because, being "in a criminal court," "nothing was to be presumed against him," and the facts essential to his conviction had not been proved; that the evidence being "insufficient to establish guilt __________ as charged, it is the duty of the trial court on request to direct a verdict of not guilty," and that, "for the reasons stated," as "the defendant should have been *Page 440 acquitted," the Superior Court erred in ordering a new trial; hence we reversed. Now, the majority, in effect, reverses the Superior Court for not doing the very same thing which we said in the Yost case it erred in doing, namely, ordering a new trial where the evidence in the original trial was insufficient to sustain a conviction. In addition, the record before us contains no indication that on another trial better evidence of guilt will be presented.
According to the law as we understand it, the Superior Court was right in ordering the discharge of defendant, and for this reason we are constrained to enter our dissent from the order of the majority, which modifies the judgment of the Superior Court and subjects appellant to a new trial.