Commonwealth v. Kahn
| Decision Date | 04 January 1935 |
| Docket Number | 539-1934,542-1934,543-1934,540-1934,544-1934,541-1934 |
| Citation | 116 Pa.Super. 28,176 A. 242 |
| Parties | Commonwealth v. Kahn et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued November 20, 1934
Appeals by defendants from orders of Q. S., Philadelphia County, July Sessions, 1934, Nos. 1452, 1543 and 1544, in the case of Commonwealth of Pennsylvania v. Mary Kahn et al.
Indictments for riot and assault and battery. Before Heiligman, J.
The facts are stated in the opinion of the Superior Court.
Verdicts of guilty, and judgments of sentence thereon. Defendants appealed.
Errors assigned, among others, were parts of charge.
Judgments affirmed.
Saul C Waldbaum, and with him Errol White, for appellants.
Vincent A. Carroll, Assistant District Attorney, and Charles F. Kelley, District Attorney, for appellee.
Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.
These six appellants were tried on bills of indictment charging them with riot and assault and battery. The jury returned verdicts of guilty against all of them on both counts.
It appears from the evidence adduced upon the part of the Commonwealth that on Saturday, July 14, 1934, at about noon, the defendants, members of the League against War and Fascism, assembled, along with other members of the league, under a prearranged plan, in front of the German Consulate, at 1420 Walnut Street, in the central part of the City of Philadelphia. Their conceded purpose was to stage a demonstration and to picket as a protest against the imprisonment of one Thalmann, a worker in prison in Germany. They wore placards with the printed slogan, and shouted, "Free Ernest Thalmann; down with Fascism; down with Hitler." The meeting of the 25 or 30 members of the organization and their conduct attracted a crowd of 150 to 200 persons to concentrate at that point. Some mounted police who were passing in that neighborhood saw the disorder and set about to disperse the crowd. The defendants, who appeared to be the ringleaders, interfered with the police in performing their official duty, they violently resisted arrest, and urged the crowd to release them.
The original purpose of the defendants may have been to picket peacefully, but their gathering, as could have been anticipated, resulted in a dangerous, turbulent and shouting assemblage.
The appellants allege, first, that there was a manifest injustice done them in that they were not fairly and properly tried and convicted. There were no exceptions taken by the defendants, who were represented by counsel, to the admission of any of the testimony, nor were there any exceptions to the charge of the learned court below. Under the Act of June 24, 1895, P. L. 212, as amended (17 PS sec. 111 et seq., and secs. 1721-1726), this court has broad powers in reviewing records that come before us, and if we are convinced that a fundamental error has been committed, resulting in a manifest injustice, we may reverse a lower court. It appears conclusively that these defendants were guilty of creating a tumultuous disturbance, resisting officers, and of assault and battery, so that we could not say they were such innocent and inoffending persons that substantial injustice has been done them by the alleged failure of their attorney in the court below to properly protect their rights. The general rule is that a conviction will not be reversed where the alleged error was not raised in the court below by either exception or objection: Com. v. Dickson, 74 Pa.Super. 200; Com. v. Polichinus, 229 Pa. 311, 78 A. 382; Com. v. Delfino, 259 Pa. 272, 102 A. 949; Com. v. Bryson, 276 Pa. 566, 120 A. 552.
The appellants complain, however, that the trial judge did commit a fundamental error in instructing the jury as to the definition of a riot. A reference to his charge discloses that he said to the jury when he defined the crime of riot ...
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