162 A. 482 | Pa. Super. Ct. | 1932
Argued July 12, 1932.
The relators, William Falls and D. Harvey Sykes, formerly two constables in Delaware County, petitioned the court for their release, alleging that sentences imposed upon them were illegal and unauthorized by law. Sykes was indicted and found guilty of extortion, bribery, violating the liquor laws, malfeasance, misfeasance and nonfeasance in office, and conspiracy, and was sentenced under each indictment to pay a fine and undergo imprisonment in jail for one *131
year, except under the indictment charging conspiracy, where the sentence imposed was two years, to run successively, which is in accordance with the law: Halderman's Petition,
The appellants contend that these cumulative sentences are void; that the crime of malfeasance, etc., in office included the other offenses; and as they have served the time imposed for that offense, they are entitled to their discharge. If unauthorized sentences were imposed, an application for a writ of habeas corpus was the proper procedure: Com. ex rel. Wilhelm v. Morgan,
The sole question for determination is whether or not the sentences imposed were for separate and distinct offenses.
In support of the position that the crimes were merged into the offense of malfeasance, etc., in office, the appellants cite Com. ex rel. Ciampoli v. Heston,
This case is not within the spirit or the letter of those decisions, as we are dealing with entirely different facts. The testimony in this case discloses that on one occasion a conspiracy was formed by the appellants to lease a barn for the manufacture of liquor; at a later date the liquor was manufactured; at a different time money was received for protecting the still and permitting it to be operated without their interference. These charges did not grow out of one transaction; they were separate and distinct offenses, occurring at various times, covering a period of about one and a half years, for which the legislature has prescribed different penalties. The maximum sentence for conspiracy is two years; bribery, five years; extortion, one year; malfeasance, etc., one year; manufacturing liquor, etc., three years. A distinction exists, both as to law and time. Furthermore, these offenses are not felonies but misdemeanors, and there is no legal merger where crimes are of an equal grade and based upon different facts. In Com. v. McGowan et al., Parsons Select Equity Cases, Vol. 2, p. 341, the court said: "The rule I take to be this, that as a conspiracy is but a misdemeanor, and when its object is only to commit a misdemeanor, it cannot be merged, even if the object of the conspiracy is accomplished. For where two crimes are of equal grade it is difficult to see how there can be a legal technical
merger." See also Com. v. Gillespie, 7 S. *133 R. 469; 1 Trickett on Pennsylvania Criminal Law, p. 414; Com. v. Corcoran et al.,
True, the indictment for malfeasance in office was based on charges of extortion, bribery and violation of the liquor laws. The essence of that offense is a breach of official duty. If the misconduct happens to consist of the commission of other misdemeanors, there is no merger. An offender cannot escape punishment for the other offenses; they are independent crimes — the same as an agreement to commit a misdemeanor is a conspiracy. But, as we have seen, that offense is exclusive of the acts that follow; the latter is but evidence of the former. So, the other crimes, while evidence of malfeasance in office, are separate and distinct offenses. Each indictment required proof of an additional fact which the others did not.
Judgments affirmed.