40 A.2d 919 | Pa. Super. Ct. | 1944
Argued October 26, 1944. On March 29, 1944, information was lodged charging George Bausewine, chief of police of the borough of Norristown, with bribery and non-feasance in office. The same day notice was served on the district attorney by the defendant waiving a hearing and also presentment to the grand jury. In compliance with defendant's request and in pursuance of the Act of June 15, 1939, P.L. 400, 19 P. S. § 241, eight district attorney bills were prepared and submitted to his counsel, who made some suggestions for changes in the wording of the bills, which were adopted. On April 3, 1944, the date of the trial, the defendant filed a formal waiver of indictment. Before the case reached the jury six of the bills had been withdrawn from its consideration. The defendant was convicted of bribery and non-feasance in office on the remaining two bills, to wit No. 95 February Term, 1944 and No. 95-5 February Term, 1944, respectively.
We will first give consideration to the appellant's contention that the evidence was insufficient as a matter of law to support his conviction and that the verdict was clearly against the weight of the evidence. This requires a review in some detail of the testimony. The Fraternal Order of Orioles, hereinafter referred to as Orioles, maintained a clubhouse in Norristown in which were operated eight illegal slot machines for at least a period of two years, which included 1943 and a part of 1944. The profits from these machines to the Orioles were shown to have averaged $2,750 a month.
Vincent U. McCafferty, called by the commonwealth, testified that in 1942 a man by the name of Kriebel was the chief steward and that he, assistant steward, drove him to Bausewine's home in 1942. Kriebel having died in January 1943, McCafferty "carried out just as he did." Every month from January 1943 up to and including January 1944 he put $50 in cash in an envelope and delivered it to Bausewine. *538
There appears in the minutes of the house committee of the Orioles as of February 7, 1944, the following: "Agreed that as this club is operated in a strictly legitimate manner, no money to be paid anyone as so-called protection money." There was no proof that any money was paid Bausewine during the month of February. McCafferty said that on March 10, 1944, he received a telephone call about 6 o'clock from the defendant asking him how he was and where he had been. He answered: "Seven o'clock tonight." The defendant replied: "Okay." Shortly after seven that evening John Gilinger, chairman of the house committee of the Orioles in his car drove the witness to Bausewine's home. McCafferty had in his possession the envelope containing $50, which he had previously shown Gilinger. Arriving in front of the Bausewine house he proceeded up the walk and as he was on the porch, Bausewine, who had been sitting at the window, opened the door and received the money. McCafferty was asked with whom he had a conversation as a result of which he made this payment to Bausewine. He replied Mr. Morrow, the president of the Orioles. Gilinger corroborated this testimony relating to the visit to the defendant's house and the delivery to him of the envelope containing the money.
The credibility of McCafferty was vigorously attacked. He had originally stated on March 16, 1944, that the final payment of $50 was made to Bausewine on the evening of March 14, 1944, and subscribed to a written statement to that effect in the office of the district attorney, although he did not appear very positive as to the date. Accordingly the information and the bills of indictment originally alleged March 14 as the date of the last payment. It became apparent subsequently to the district attorney that March 14 could not have been the date on which McCafferty made the final payment as beyond question between 5:00 and 9:00 P.M. on *539 that day the defendant was continuously in a meeting of the Commercial Club, where there were present many prominent citizens of Norristown. The district attorney again interviewed McCafferty in an effort to learn the correct date of this alleged last payment. McCafferty then acknowledged his error and fixed the date as March 10, 1944, explaining that when he made his first statement he was confused, nervous and excited due to the unusual experience of appearing in the district attorney's office, where there were detectives and police present. He explained that he recalled the correct date after talking to his brother Joseph, to whom he had loaned his car on the date the payment was made. That was the reason given for using the Gilinger car. Joseph McCafferty was called and corroborated his brother's testimony as to borrowing his car on March 10.
Bausewine's defense was that he did not know McCafferty and he denied that he ever received any money from him, although he did not specifically deny the telephone conversation to which we have referred. A further defense was that of an alibi. He introduced testimony that between 3:00 and 9:00 P.M. of the evening in question he was several miles away from his home taking a ride with a friend named Lewis; that in the course of this trip they made stops at two different hotels. The proprietors of these hotels, friends of Bausewine, and Lewis were called as witnesses to support his alibi defense.
The defendant claims further that his arrest was the result of a frameup; that Gilinger, chairman of the house committee of the Orioles, was a brother-in-law of Captain Butler of the Norristown police force, against whom he had made formal charges of falsifying his alleged resignation from the state police and accepting a bribe while a member of that organization and that it was he in retaliation who was the instigator of this prosecution. *540
It is true that some of the commonwealth's testimony was circumstantial. Chief Justice MAXEY in an opinion in Commonwealthv. De Petro et al.,
This question naturally arises: What prompted the extraordinary minute of the house committee? It will not require an inordinately suspicious mind to conclude that there was some basis for its passage. It is a reasonable inference that the Orioles subsequently concluded for reasons that were persuasive, to continue the monthly payments notwithstanding the minute of the house committee. Under the evidence adduced the trial judge would have committed clear error if he had withdrawn this case from the jury's consideration, as there were controversial questions of fact for their consideration. If they believed, as they apparently did, that these payments were made and were for the purpose alleged, the verdict was warranted. We have no difficulty in concluding that the evidence was sufficient to support the conviction.
Nor can we say that the verdict was so clearly against the weight of the evidence as to convict the trial judge of abuse of discretion in not granting a new trial. He had the benefit of seeing and hearing the witnesses and expressed the opinion that the verdict was not so shocking to his conscience as to warrant the granting of a new trial, as "a very fair minded" jury heard the case. The granting or refusal of a new trial in criminal, as well as civil, cases on the ground that the verdict is against the weight of the evidence, is a matter largely *541
within the sound discretion of the trial judge: Commonwealth v.Croce,
The appellant's next contention is that the Chief of Police of Norristown is an officer of the commonwealth within the meaning of the statute defining bribery and that under the well recognized rule where a crime is punishable by statute a defendant cannot be proceeded against at common law: § 1104 of 1939 Criminal Code, supra,
We will turn now to consider section 303 of the Criminal Code of 1939, supra,
Is the chief of police of Norristown an officer of this commonwealth? Section 1125 of the General Borough Act of May 4, 1927, P.L. 519, Article XI, as amended June 24, 1939, P.L. 689,
Houseman v. Commonwealth,
Some of the cases cited by the appellant involves members of the state police. This defendant cannot be compared to a superintendent of the state police, or to a member of that force. They are officers of the commonwealth appointed and subject to removal by state officials and paid out of state funds.
In Commonwealth v. Norris,
The appellant further asserts that the conviction under bill No. 95-5 is invalid. This bill is endorsed on the back "Obstructing Justice and the Administration of Government" and charged that defendant ". . . . . . being then and there chief of police of the Borough of Norristown, and by virtue of such office being then and there charged with a public duty to uphold, maintain and enforce the ordinance of the said Borough and the laws of the Commonwealth, did corruptly refrain from doing his official duty in permitting the Fraternal Order of Orioles Nest No. 152, Norristown, Pa., to set up, maintain and exhibit certain gambling devices, to wit: slot machines . . . . . .; and further that he, the said George Bausewine, did conduct himself on the said fourteenth day of March A.D. 1944, and divers other times within two years last past, so as to injure or tend to injure, obstruct and prevent public justice and the administration of government, against the peace and dignity of the Commonwealth of Pennsylvania."
The court ruled the first part of this bill could be sustained as a charge of non-feasance in office, failing *545 to discharge his duties, and as such submitted it to the jury, but withdrew from its consideration the second part charging obstruction of justice. No valid objection can prevail to having two or more counts included in one bill where they are founded on the same facts and arise out of the same offense.
Appellant claims that this was a fundamental and prejudicial error in that he was called upon to answer a new and different charge than that averred in the bill. He concedes, as indeed he must, that the caption is not part of the indictment (Brown v.Commonwealth,
The last objection that the sentence is invalid must be sustained. The court imposed sentence on each bill, directing the defendant in each case to pay a fine of $100 and undergo imprisonment in Montgomery County prison in single and solitary confinement at labor for not less than 4 months and not more than 23 months until the sentence is complied with. The sentences to run concurrently. The appellant was convicted of misdemeanors at common law. Under Pennsylvania common law, felonies are punishable by solitary confinement and hard labor, but misdemeanors are punishable by fine and imprisonment:Commonwealth v. Gable, 7 S. R. 423, 435.
Under section 1101 of the Penal Code of June 24, 1939, P.L. 872,
The Act of June 19, 1911, P.L. 1055, § 6, as amended by the Act of June 29, 1923, P.L. 975, § 1, 19 P. S. § 1057, authorizing imposition of sentence for indefinite term, applies only to crimes punishable by imprisonment in a state penitentiary:Commonwealth ex rel. Guiramez v. Ashe, Warden,
As there is no defect in the indictment or error in the trial it is not necessary to reverse the proceedings, but as the sentence is improper the record will be remitted for the passing of a proper sentence: Commonwealth of Pa. v. Williams and Breese,
We have carefully considered this record and read with interest the exhaustive brief of counsel for the appellant. All the questions discussed therein have been carefully considered. We are convinced that appellant had a fair, impartial and legal trial. Practically all the legal positions taken by him were adopted by the trial judge and he has not complained of any inadequacy or unfairness in the charge.
The conviction is sustained, but the record is remanded for resentence according to law.