Commonwealth v. Bausewine .

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: DREW, Justice.
• Citation: 46 A.2d 491,354 Pa. 35
• Decision Date: 12 April 1946
• Parties: COMMONWEALTH v. BAUSEWINE (two cases).

354 Pa. 35
46 A.2d 491

COMMONWEALTH
v.
BAUSEWINE (two cases).

Supreme Court of Pennsylvania.

April 12, 1946.

Appeals Nos. 143 and 144, January term, 1945 from the judgment of the Superior Court of Pennsylvania at No. 139 (Appeal No. 143) and at No. 140 (Appeal No. 144), October term, 1944, sustaining the conviction of appellant in the Court of Quarter Sessions of the Peace of Montgomery County, as of February Sessions, 1944, No. 95 (Appeal No. 139) and No. 95-5 (Appeal No. 140); Thomas J. Baldrige, President Judge.

George Bausewine was convicted of bribery and nonfeasance in office, his conviction was sustained by the Superior Court, 150 Pa.Super. 535, 40 A.2d 919, and he appeals by permission.

Reversed and defendant discharged.

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and JONES, JJ.

Thomas D. McBride, of Philadelphia, and Edward B. Duffy, of Hatboro, for appellant.

Frederick B. Smillie, Dist. Atty., and David E. Groshens, Asst. Dist. Atty., both of Norristown, for appellee.

DREW, Justice.

Defendant, George Bausewine, was tried and found guilty of bribery and nonfeasance in office when Chief of Police of the Borough of Norristown. His motions in arrest of judgment and for a new trial having been denied, he was sentenced in each case to pay the costs of prosecution and a fine of $100 and undergo imprisonment in the Montgomery County Prison for not less than four months and not more than twenty-three months until the sentence is complied with; the sentences to run concurrently. On appeal, the learned Superior Court sustained the conviction, but, finding the sentences improper, remanded the record to the court below for resentence according to law (156 Pa.Super. 535, 40 A.2d 919). Defendant's petition for the allowance of an appeal to this Court having been granted, these appeals followed.

It is argued on behalf of defendant that the Chief of Police of Norristown is an

46 A.2d 492

‘officer of this Commonwealth’ within the purview of section 303 of the Criminal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 4303. For that reason, he contends, it was improper to proceed against him at common law. Defendant was charged with bribery at common law, as well as under the statute, but it is clear that at the trial the Commonwealth relied upon the former charges of which he was convicted and sentenced. Section 303 provides, inter alia: ‘Whoever shall directly or indirectly * * * give or make any * * * payment * * * of any money * * * in order to obtain or influence the vote, opinion, verdict, award, judgment, decree, or behavior of any member of the General Assembly, ro any officer of this Commonwealth, judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him * * * is guilty of bribery, a misdemeanor * * *.’ (Italics added.) If a borough chief of police is an ‘officer of this Commonwealth’ within the meaning of this section, then defendant obviously could not be indicted, tried or convicted legally on the charge of bribery at common law, because of the provisions of section 1104 of the Criminal Code, 18 P.S. § 5104. That section provides: ‘In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.’

A careful study of section 303, however, convinces us that it was the legislative intent to single out those officers directly responsible to the government of the Commonwealth of Pennsylvania in its state-wide sense who prove unfaithful in the exercise of the sovereignty of the Commonwealth. It was not the intendment to include in this section such local public officer as a borough chief of police. In this connection, we agree with President Judge Baldrige that: ‘Section 303 * * * relates to a thing to be attained or influenced by a bribe. ‘Vote, opinion, verdict, award, judgment, decree or behavior’ are specified. A chief of police had no official relation with any of those matters. Those who come within the provisions of that...