Commonwealth v. Levy

• Decision Date: 10 December 1941
• Docket Number: 110-1942,111-1942
• Citation: 146 Pa.Super. 564,23 A.2d 97
• Parties: Commonwealth v. Levy, Appellant
• Court: Pennsylvania Superior Court

23 A.2d 97

146 Pa.Super. 564

Commonwealth v. Levy, Appellant

Nos. 110-1942, 111-1942

Superior Court of Pennsylvania

December 10, 1941

Argued November 10, 1941.

Appeals from judgments of O. & T. Allegheny Co., Dec. T 1939, Nos. 71 and 72, in case of Commonwealth v. Jesse Levy.

Indictment charging defendant with sodomy. Before Dickey, J., specially presiding.

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

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, related to various rulings of the court below upon evidence.

Judgment reversed.

Harry A. Estep, with him Louis Bowytz, for appellant.

Chauncey E. Pruger, Assistant District Attorney, with him Andrew T Park, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Cunningham, J.

Appellant was convicted in the court below upon each of two indictments charging him with having committed sodomy with Joseph Quigley, eleven years of age. In the indictment at No. 71, December Sessions, 1939, the offense was charged as having been committed on September 30th of that year, and in the indictment at No. 72, December Sessions, 1939, the date laid was October 4, 1939. Both indictments were found December 11, 1939. If the testimony of Joseph Quigley is credible, there is evidence upon the record that the defendant on some unspecified date prior to the finding of the indictments and within the statutory period of limitation committed the offense charged in the indictment at No. 72, (Section 501 of [23 A.2d 98] the Penal Code of June 24, 1939, P. L. 872, 18 PS § 4501) and attempted to commit the crime described in the indictment at No. 71, (Section 502, 18 PS § 4502). But one sentence, a nominal fine, costs and imprisonment in the county jail for not less than 1 1/2 years nor more than 3 years, was imposed; it was pronounced at No. 71 and sentence was suspended at No. 72, upon payment of costs. The court below directed that defendant's appeals from these sentences should operate in each case as a supersedeas.

Twenty assignments of error have been filed. Those in the first group are based upon the contention of counsel for defendant that as the Commonwealth failed to prove the commission of the crimes by defendant on the dates laid in the indictments, or any other definite date or dates within the statutory period, the case should not have been submitted to the jury. These assignments raise the fundamental question involved upon these appeals.

As supplying a background for the case, there was ample evidence that the conduct of the defendant during the summer and fall of 1939, in hailing children along the streets in the vicinity of Turner Hall and St. John's Church, on the South Side of the City of Pittsburgh, and inviting them to take rides in his automobile, became so suspicious as to attract the attention of Father McKavney and the teachers in charge of the schools they attended. The license number of his automobile was noted and the matter referred to the police department. There was evidence that defendant was known to the children as "Jay," "Joe," or "Jack," and that his first contact with Joseph Quigley was on an occasion when the boy was standing along the street with his sister, Gertrude Quigley, sixteen years of age, Josephine Dawida, fourteen, and Eleanor Obradowski, eleven. The defendant upon several occasions took this group of children, or some of them, for a ride in his car and gave them small sums of money with which to buy sodas and candy. Joseph Quigley testified to three occasions upon which he was in the car alone with the defendant after dark. According to the story of the boy, the defendant took him each time to a driveway in the rear of Goldenson's furniture store. Upon the first occasion the defendant's conduct amounted to no more than an indecent assault; upon the second, the crime charged in the indictment at No. 72 was committed, and on the following evening the offense set forth in the indictment at No. 71 was attempted. It was also testified that the children when called to the police station were separately shown a group of photographs and each picked out the picture of defendant as that of the man who had taken them for rides in his automobile, and that in a "stand-up" at the police station in which three men were placed in a line with defendant, each child identified him as the person known to them as "Jay." The car bearing the license number obtained by a janitor at the school was registered in defendant's name.

The testimony both with reference to the date upon which Joseph Quigley first met the defendant and the dates upon which he was alone with him in his car in the driveway is in the utmost confusion.

We are unable to find any satisfactory evidence upon the record fixing the date upon which the defendant attempted to have Joseph Quigley commit sodomy upon him, as charged in the indictment at No. 71. If that date could be fixed, the date of the completed offense by defendant upon the boy, as charged in the indictment at No. 72, would also be fixed because under the testimony a period of only twenty-four hours intervened between these occurrences. The testimony of Joseph Quigley was that the completed offense charged at No. 72 was committed between 7 and 8 o'clock P.M. on some date in August or September, 1939, while they were parked in the driveway, and that the attempt to commit the offense charged at No. 71 occurred at the same place, on the following evening. Only one date was fixed with any degree of certainty and that was the birthday of Gertrude Quigley -- September 4th. Another date fixed with reasonable certainty was the day upon which school began that fall -- September 6th. At page 21a of the record, Joseph Quigley, referring to the offense charged in the indictment at No. 72, fixed the time as a week before his sister's birthday and said defendant gave him a quarter that evening. Upon cross-examination the boy said, at page 47a, the offenses were committed in August, but at pages 48a and 50a he testified, "Them two times he took me out was in September. That was in September the two times he took me out." We are unable to agree with the statement of counsel for the Commonwealth that the boy testified in chief that the offense was committed the next day after school started. The answer, "The next day," at the top of page 24a, obviously means the next day after the first offense was committed.

An excerpt from his testimony on cross-examination beginning on 49a reads: "Q. Didn't you say it happened a week before your sister's birthday? A. No, it was in September. Q. Why should you say sure it was in September? A. Because it was close to my sister's birthday. Q. Now, then, September 4th -- were you out with him September 1st? A. Yes, and September 2nd. Q. September 1st and September 2nd. A. September 1st and September 2nd. Q. Those are the dates you were out with him, is that right? A. Yes. Q. By yourself? A. Yes."

If this testimony by the Commonwealth's principal witness stood alone, it might be sufficient to support a finding of the commission of the crimes on September 1st and 2nd. But it does not stand alone.

The boy's sister, Gertrude Quigley, also a material witness for the Commonwealth, testified that the occasion upon which defendant took the group of children, including her brother Joseph, out in his car for the first time, and which was the first time defendant met her brother, was after her birthday and after school had started, i. e., some time after September 6th. Josephine Dawida, another member of the group, called by the Commonwealth, said defendant took them riding about the end of September. Eleanor Obradowski, the fourth member, said she did not know when it was.

After the Commonwealth had rested the assistant district attorney trying the case moved for and was granted permission to reopen the Commonwealth's case and amend the date of October 4, 1939, laid in the indictment at No. 72, to September 30, 1939, the date set out in the indictment at No. 71.

It is difficult to understand why that amendment was desired. We find no evidence upon the record establishing either September 30th or October 4th as the date of the commission of the crime charged in either indictment, and the positive testimony of Joseph Quigley was that they were committed upon successive evenings.

It may be conceded that in the prosecution of crimes of the kind here involved the Commonwealth is not required to prove their commission on the date laid in the indictment, but, failing in that, we think it has the burden, in order to sustain a conviction, of proving their commission upon some other date, fixed with reasonable certainty and being within the prescribed statutory period -- five years in the present case (Act of April 6, 1939, P. L. 17, 19 PS § 211) and not two years as assumed by the trial judge.

In other words, where a particular date or day of the week is not of the essence of the offense, the date laid in the indictment is not controlling, but some other reasonably definite date must be established with sufficient particularity to advise the jury and the defendant of the time the Commonwealth alleges the offense was actually committed, and to enable the defendant to know what dates and period of time he must cover if his defense is an alibi.

"In the laying of time, any date may be fixed within the statutory period, and the averment will be supported by proof that the offense occurred at another date within that time, unless time is an element of the crime charged, as in violation of Sunday laws": Sadler's Criminal Procedure in Pennsylvania, (Second Edition, 1937) ...