Commonwealth v. O'Brien

• Decision Date: 25 September 1933
• Docket Number: 35
• Citation: 312 Pa. 543,168 A. 244
• Parties: Commonwealth v. O'Brien, Appellant
• Court: Pennsylvania Supreme Court

168 A. 244

312 Pa. 543

Commonwealth v. O'Brien, Appellant

No. 35

Supreme Court of Pennsylvania

September 25, 1933

Argued April 21, 1933

Appeal, No. 35, May T., 1933, by defendant, from order of Superior Court, March T., 1933, No. 18, affirming the judgment and sentence of Q.S., Dauphin Co., March Sessions 1932, No. 165, in case of Commonwealth v. George O'Brien. Judgment reversed and venire facias de novo awarded.

Indictment for bribery. Before WICKERSHAM, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of attempt to bribe, upon which judgment and sentence were passed. Defendant appealed to the Superior Court which affirmed judgment and sentence. Defendant appealed.

Error assigned, inter alia, was refusal of defendant's motion for directed verdict, quoting record.

Judgment reversed and a venire facias de novo awarded.

Charles Edwin Fox, of Fox, Rothschild, O'Brien & Frankel, with him Caldwell, Fox & Stoner, for appellant.

Carl B. Shelley, Assistant District Attorney, with him Karl E. Richards, District Attorney, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

Defendant, George O'Brien, was indicted under section 48 of the Criminal Code of March 31, 1860, P.L. 382, for bribery, the indictment charging that he had offered and promised to give Richard J. Beamish, the Secretary of the Commonwealth, the sum of $20,000 to influence his decision in awarding a contract for the purchase of voting machines for the City of Philadelphia. The jury found him "guilty of attempt to bribe." His motion in arrest of judgment and for a new trial having been overruled, he was sentenced to pay a fine of $5,000 and undergo imprisonment for not more than a year nor less than six months. From the order of the Superior Court affirming the judgment and sentence, this court, on defendant's petition, allowed an appeal.

The facts of the case are stated fully in the opinion of the Superior Court, 107 Pa.Super. 569. It is unnecessary for us to restate them here, inasmuch as we are of opinion that serious and fundamental error in the charge to the jury requires that a new trial be granted. Mr. Beamish, upon whose testimony the case of the Commonwealth depended, testified that defendant, in an interview with him in his office, had said to him, "There will be a nice present in it for you, if the Shoup Machine gets the award," and "There will be $20,000 in it for you if the Shoup Company gets the award." In reviewing this testimony in his charge, the learned trial judge told the jury that Mr Beamish had said that the defendant "said that he would give him $20,000, or the Shoup Company would give him $20,000 if he would award the contract to that company." This variance between the testimony of the witness and the judge's account of it was of...