67 A.2d 674 | Pa. Super. Ct. | 1949
Argued March 21, 1949.
Appellant, Thomas Falgiatore, was indicted for a misdemeanor under the Solid Fuels Act of July 19, 1935, P. L. 1356, as amended,
The Act, § 8, as amended, 76 P. S. § 349, provides for summary proceedings for the first, second and third offenses, and defines fourth and subsequent offenses as misdemeanors. To sustain a conviction for a misdemeanor there must be proof of three prior violations and convictions. Cf. Com. v. Calio,
A person named Falgiatore was undoubtedly involved in some capacity in three prior violations. But from the record before us we have not been able to determine whether Thomas Falgiatore was convicted in three prior summary proceedings and whether appellant is actually the Falgiatore involved in them. Appellant could be convicted of the misdemeanor only if the Commonwealth proved beyond a reasonable doubt three prior summary convictions of the very person named in the indictment, and the record submitted to us must show sufficient evidence to sustain the conviction.
The Commonwealth relied exclusively upon the magistrate's dockets. The informations, warrants and other papers comprising the record were not produced. There is a clear intimation inAmerican Bank v. Felder,
We shall not analyze all the docket entries or attempt to point out their deficiencies. One illustration will suffice. We gather from the objections and arguments of counsel in the court below that one docket indicated the issuance of a warrant against Economical Coal Company. Under the company's name appeared in parenthesis "Romano and Falgiatore". A fine of $25 was imposed but the docket does not disclose whether the company, Romano or Falgiatore was adjudged guilty. It does not disclose whether the company was a corporation, or a partnership of which Romano and Falgiatore were members. A witness testified: "If my memory serves me right, Mr. Falgiatore" was present at the hearing, but unless Falgiatore was a defendant, so named in the information and the warrant, his *238 presence at the hearing was without significance. The docket does not exhibit a conviction of Thomas Falgiatore.
The docket entries concerning the other alleged violations, so far as we can determine from the record, are not more satisfactory. Furthermore, apart from the incomplete proof of the dockets, there is not sufficient evidence to sustain the conviction. Appellant did not testify in his own behalf and, except for the dubious reference to his presence at one magistrate's hearing, there is no proof of identification. Unless a defendant admits that he is the person who was convicted in a prior proceeding, there must be independent proof of identification. Cf. Kane v. Com.,
Reversed and defendant discharged.