Com. of Pa. v. Falls And Sykes

• Decision Date: 10 October 1932
• Docket Number: 228-1932,227-1932
• Citation: 162 A. 482,107 Pa.Super. 129
• Parties: Com. of Pa. v. Falls and Sykes, Appellants
• Court: Pennsylvania Superior Court

162 A. 482

107 Pa.Super. 129

Com. of Pa. v. Falls and Sykes, Appellants

Nos. 227-1932, 228-1932

Superior Court of Pennsylvania

October 10, 1932

Argued July 12, 1932

Appeal by realtors from order of Q. S., Delaware County, September T., 1931, No. 1626 and December T., 1931, No. 141, in the case of Commonwealth of Pennsylvania v. William Falls and D Harvey Sykes.

Petition for writ of habeas corpus.

The facts are stated in the opinion of the Superior Court.

The court dismissed the petition. Realtors appealed.

Error assigned, among others, was the order of the court.

Affirmed.

John E McDonough and with him R. Paul Lessy and Michael S. Reps, for appellant.

Louis A. Bloom, Assistant District Attorney and with him William J. MacCarter, Jr., District Attorney, for appellee.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ. Before MacDade, J.

OPINION

Baldrige, J.

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 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, 276 Pa. 1, 4, 119 A. 735. Falls was indicted and convicted of the same offenses, except that of violating the liquor laws, and a like sentence imposed under each indictment.

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, 278 Pa. 395, 123 A. 337.

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, 292 Pa. 501, 141 A. 287, where the relator was sentenced for the possession and sale to various persons of narcotic drugs in violation of the Act of July 11, 1917, P. L. 758, sec. 4, (35 PS sec. 854), which provides that "no person shall have in his possession . . . . sell . . . . or give away, any of said drugs." He was charged in two counts, first, possession of drugs, and, second, sale. For a violation, the act carries a sentence not exceeding five years. Sentence was imposed for ten years. The court held that, even if a separate sentence for possession and sale was permissible, the facts disclosed that they were successive steps in the same transaction and the one necessarily involved the other and they merged and constituted but a single offense. The same conclusion was reached in Com. v. Basha, 80 Pa.Super. 320, where the relator was charged with possession and unlawful transportation of intoxicating liquor, which was treated as but one transgression of the law. In Com. v. Bailey et al., 92 Pa.Super. 581, we held that it was error to impose sentences on Bailey, charging burglary in one indictment and felonious entry under another, as "the offense of entering was merged in the higher offense of breaking and entering; the greater includes the less: Johnston v. Commonwealth, 85 Pa. 54, 65."

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 s...