Commonwealth v. Bailey

• Decision Date: 02 March 1928
• Docket Number: 252-1927,253-1927,254-1927,251-1927
• Citation: 92 Pa.Super. 581
• Parties: Commonwealth of Pennsylvania v. Bailey and Ford, Appellants
• Court: Pennsylvania Superior Court

92 Pa.Super. 581

Commonwealth of Pennsylvania v. Bailey and Ford, Appellants

Nos. 251-1927, 252-1927, 253-1927, 254-1927

Superior Court of Pennsylvania

March 2, 1928

Argued October 7, 1927

Appeals by Francis Bailey from judgment of Q. S Philadelphia County-1927, Nos. 912, 913, 916, 917, in the case of Commonwealth of Pennsylvania v. Francis Bailey and Peter Ford.

Indictment for burglary, felonious entry, assault and battery, etc. Before McDevitt, J.

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

Verdict of guilty and the imposition of sentences as recited in the opinion of the Superior Court. Defendant appealed.

Errors assigned, among others, were various rulings on evidence, the charge of the court, and the refusal to direct a verdict in favor of the defendants.

B. D Oliensis, for appellant.

Charles F. Kelley, Assistant District Attorney, and with him Charles Edwin Fox, District Attorney, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

GAWTHROP, J.

Appellant and a co-defendant, Ford, were jointly indicted in eight bills (Nos. 912 to 919, March Sessions, 1927, inclusive). Bill No. 912 charged burglary as defined in Section 135 of the Criminal Code of 1860 (March 31, 1860, P. L. 382); Bill No. 913 charged felonious entry as defined in Section 136 of the Code and its supplements (See Act of March 13, 1901, P. L. 49); Bill No. 914 charged assault and battery upon Dolly Jean Carlin with intent to rob and steal from her; Bill No. 915 charged assault and battery upon Martha Hewes with intent to rob and steal from her; Bill No. 916 charged aggravated assault and battery upon Martha Hewes with intent to ravish her; Bill No. 917 charged aggravated assault and battery upon Dolly Jean Carlin with intent to ravish her; Bill No. 918 charged aggravated assault and battery upon Dolly Jean Carlin with intent to kill her; and Bill No. 919 charged aggravated assault and battery upon Martha Hewes with intent to kill her. All of the offenses were part of one transaction which happened about two o'clock A. M. March 2, 1927, at the room in the Sylvania Hotel occupied by the two women. March 28, 1927, the jury convicted the defendants on Bills Nos. 912, 913, 916 and 917 and acquitted them on the other bills. Immediately after the verdicts were rendered a motion for a new trial was made and argued and overruled. Thereupon a written motion in arrest of judgment was filed. March 30, 1927, the motion was withdrawn and the defendants were sentenced on Bill No. 912 to undergo imprisonment in the State Penitentiary for the Eastern District of Pennsylvania for a term of not less than five years nor more than ten years; on Bill No. 913 to a term of not less than five years nor more than ten years to commence at the expiration of the sentence on Bill No. 912. A sentence of imprisonment for not less than two and a half years and not more than five years, to commence at the expiration of the sentence on Bill No. 913, was imposed on Bill No. 916. No sentence was imposed on Bill No. 917. June 30, 1927, the defendant, Bailey, appealed to this court.

At the argument on these appeals the district attorney asserted that immediately before the imposition of the sentences the defendants agreed to the withdrawal of their motion in arrest of judgment and to accept without further exception or objection sentences imposing imprisonment for a term of not less than twelve and one-half years and not more than twenty-five years. As the records certified to this court did not show any such agreement, we entered an order directing the return of the records to the court below for the purpose of correction and amendment in accordance with the facts. On January 10, 1928, the records as corrected, amended and duly certified were returned to this court. By these records the following facts appear: On the day upon which the sentences appealed from were imposed the appellant and his co-defendant were in the court below and about to be tried before the same judge on bills of indictment charging them with other crimes. Their attorney at that time was Morton Witkin, Esquire. William A. Gray, Esquire, had represented them at the other trial. Mr. Witkin endeavored to make an arrangement with the district attorney and the presiding judge, whereby the defendants would enter pleas of guilty in the cases about to be tried and withdraw any pending motions made for the purpose of overcoming the verdicts which had been rendered against them in the cases involved in this appeal, and that sentences should be imposed as a final disposition of all of the bills of indictment against these defendants. This arrangement involved the disposition of some other bills which were not then before the court, which the district attorney agreed to submit. After consultation between...