¶1Dissenting Opinion,
¶2I do not agree with the view of the majority of this court that the learned trial judge committed error in refusing to grant a continuance because final judgment had not been entered in the case on the trial of which the perjury is alleged to have taken place. This court has said in Commonwealth v. Garvey, 65 Pa. Superior Ct. 56, “We are not yet prepared to go so far as to declare it to be legally impossible to try a defendant charged with perjury until after the determination of the judicial proceeding in which the alleged false oath was taken.” “The rule is one of convenience and propriety, addressed to the sound discretion of the court and the attention of the court should be called to the matter before entering upon the trial.” I think this was a correct statement of the law and is in accord with the weight of the authorities. In 30 Cyc. 1424 we find, “In practice the prosecution for perjury is frequently continued until the proceeding in which the perjury is alleged to have been committed has been ended. But it is a rule of convenience only, and the court trying the criminal charge may, in its sound discretion, proceed to trial and final verdict, notwithstanding the other case is still pending.”
¶3“This is, and has been the settled practice upon this subject; a practice so firmly established that it has acquired the authority of a rule of law, which is, nevertheless, a rule capable of being relaxed by the court”: Rex. *226v. Ashburn, 8 C. & P. 50 (34 Eng. Com. L. 603), quoted in Com. v. Moore, 9 Pa. C. C. Rep. 501.
¶4The perjury was alleged to have taken place in an interpleader proceeding in which defendant’s wife, Belle Hilton, was claimant, and the Liebig Manufacturing Co., defendant. The case was tried in 1914 and resulted in a verdict for Mrs. Hilton. The present trial on the charge of perjury was held April 16, 1917. Mrs. Hilton apparently did not choose to reap the benefit of the verdict by paying the jury fee. As was said by the learned trial judge, “His wife (Mrs. Hilton.) was the successful party in the trial in the Common Pleas. She could obtain no benefit by paying the jury fee, except to recover her costs, as she never parted with the possession of the mules which were the subject of the trial. She might be willing to lose her costs and never pay the jury fee if her husband’s trial could be postponed indefinitely by such a course.” The only alternative would have been for the Commonwealth or some one on its behalf to pay the jury fee. There is no reason why the unsuccessful litigant should pay the fee and thus have judgment entered against him unless he desires to appeal. In this case apparently both parties to the suit were satisfied to let the matter rest with the rendering of the verdict. There is no question that the court had jurisdiction of the subject of the controversy, and that the testimony falsely given was material. I think this is a case affording an exception to the rule and that the lower court showed a sound discretion in refusing a continuance.