80 Pa. Super. 503 | Pa. Super. Ct. | 1923
Opinion by
Appellant was convicted, under the 43d section of the penal Code of 1860, of keeping and maintaining a common bawdyhouse op a place for the practice of fornication. He contends that there was error, 1, in not directing an acquittal; 2, in permitting a witness for the Commonwealth to testify to a conversation between the witness and another person in his absence.
1. Appellant, a divorced man, conducted a drug store in the City of Butler, Butler County, Pennsylvania. He occupied an apartment consisting of a living room, bedroom and kitchen, on the second floor of the building in which the drug store was located and directly over the rear of the drug store. There was in the building one other apartment located on the second floor over the front of the drug store. Entrance to these apartments was by a common stairway from the street. In the rear of the drug store, back of the prescription case, there was a balcony seven, or eight feet above the floor on which there was a double bed. Appellant had one son about seventeen years of age who usually slept with his father in the apartment, but occupied the bed in the rear of the store when the father had company. These facts are undisputed. The Commonwealth produced evidence that on the night appellant was arrested the attention of a police officer was drawn by a noise coming from the apartment; that the time was about one o’clock a. m.; that two young men, one of whom was appellant’s son, and two girls were occupying the bed at the rear of the drug store at the suggestion and with the consent of appellant; that appellant and two men and two women
2. The error charged as to the admission of the testimony of Claire Stakeley, a witness called by the Commonwealth, as to a conversation between her and another witness in the absence of defendant is without merit. This witness had testified to a conversation between her and appellant in his apartment. At this point the record shows the following:
“Q. When did you see Mabel McGill there?
“A. I seen her there one evening; it was just a couple days before the last time I was up there.
“Q. Who was there at that time?
“A. Her; I met Mabel upstairs and we went downstairs and she said: ‘I have to see the old man.’
“Q. You went into the store?
“A. Yes, sir, she said she had to see the old man.
“Q. Did she see the old man?
“A. Yes, sir, she did; she saw the old man, as she calls him.
“Objected to as incompetent.
“Court: Objection overruled and bill sealed.”
There was no objection to any question propounded and no motion to strike out any testimony. The proper practice is to object to the question when propounded. If the question is not objected to and the answer is not responsive to the question, or is incompetent, the proper practice is to move to strike it out, and if the court refuses to do so, take an exception. If that course is not pursued, the right to objection and exception must be regarded as waived: Broadnax v. Cheraw & Salisbury R. R., 157 Pa. 140. Aside from this, however, we are not prepared to say that the testimony was prejudicial to appellant. On the contrary, we are of opinion that it was entirely harmless. It is admitted that at the time re
All of the assignments are overruled, the judgment is affirmed and the record remitted to the court below, and it is ordered that defendant appear in that court at such time as he may be there, called, and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.