Commonwealth v. Weiner
| Decision Date | 27 December 1930 |
| Docket Number | 220-1930 |
| Citation | 101 Pa.Super. 295 |
| Parties | Commonwealth v. Harry Weiner, Appellant |
| Court | Pennsylvania Superior Court |
Argued September 30, 1930.
Appeal by defendant from judgment and sentence of O. & T Schuylkill County-1929, No. 662, in the case of Commonwealth v. Harry Weiner.
Indictment charging the defendant with receiving stolen goods. Before Houck, J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.
Error assigned, among others, was the charge of the court.
Cyrus M. Palmer, and with him Joseph G. Seesholtz, for appellant.
Jas. J Gallagher, Dep. District Attorney, and with him C. A. Snyder District Attorney, M. M. Burke and Otto E. Farquhar, for appellee.
Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham and Whitmore, JJ.
The defendant appellant was convicted in the court below on an indictment charging him with having received stolen goods, to-wit, a lot of copper wire, knowing the same to have been feloniously stolen, taken and carried away; he was sentenced and the court below made an order that this appeal should operate as a supersedeas.
The appellant assigns as error (1) the court's refusal to quash the indictment, (2) that the court erred in refusing to withdraw a juror due to a remark of the district attorney in his opening address to the jury, (3) that the court erred in its charge to the jury relative to the doctrine of reasonable doubt, and (4) that the trial judge erred in pronouncing sentence upon the defendant.
As to the first assignment of error, it appears from the record that the information against the defendant was made on February 6, 1928 and on April 1, 1928 he entered bail for his appearance at the next term of court. The indictment, however, was not presented to the grand jury at the next term of court on the first Monday of May, 1928, as the alderman's return was not filed until April 25, 1929, more than a year after the bail was entered. The indictment was presented to the grand jury and a true bill found on May 9, 1929. Before a plea was entered or the jury sworn the defendant moved to quash the indictment on the sole ground that no notice was given to the defendant that the indictment was to be presented to the grand jury at May Sessions 1929. As the record did not disclose service of notice on the defendant, the Commonwealth, before any other witnesses were sworn and immediately after the motion to quash was made, called one Robert L. Evans, a constable, who testified that at least several days before the beginning of the May Sessions of 1929 he mailed a letter to the defendant, notifying him that this case, which he identified by number and term in the letter, was scheduled to be tried on a certain date during the May term of 1929 and that the defendant was to be present at the Schuylkill County court house. This evidence was not contradicted by the defendant and all the record discloses is the notice to the defendant as testified to by the constable. Although the defendant contends that this notice was not sufficient, he must have received the notice in due time as he was present with counsel when the case was called. He was not prejudiced because he had an opportunity to challenge the array of grand jurors at any time before entering his plea. See Commonwealth v. Magid and Dickstein, 91 Pa.Super. 513.
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Commonwealth v. Lopinson
... ... law then controlling, a challenge to the grand jury could be ... entered Either before or after an indictment was returned; ... the only time [427 Pa. 293] limitation was that it be entered ... before the plea in court. See Commonwealth v ... Weiner, 101 Pa.Super. 295 (1930); Commonwealth v ... Magid & Dickstein, 91 Pa.Super. 513 (1927); and, 17 ... P.L.E. Grand Jury § 4. However, when such a challenge ... was entered, the burden was upon the complaining party to ... establish the facts to support the challenge. See ... Commonwealth ... ...
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Com. v. Lopinson
...or after an indictment was returned; the only time limitation was that it be entered before the plea in court. See Commonwealth v. Weiner, 101 Pa.Super. 295 (1930); Commonwealth v. Magid & Dickstein, 91 Pa.Super. 513 (1927); and, 17 P.L.E. Grand Jury § 4. However, when such a challenge was ......
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Commonwealth v. Bruno
... ... 513 (1927). It also has been ... considered in cases where grand jury action was postponed and ... the indictments were returned by a subsequent grand jury ... Commonwealth v. Gross, 161 Pa.Super. [203 Pa.Super ... 547] 613, 56 A.2d 303 (1948); Commonwealth v ... Weiner, 101 Pa.Super. 295 (1930). In some of those cases ... the fact of notice to the defendants of when their cases were ... to be considered by the grand jury was disputed. However, ... lack of notice has been held not to be prejudicial in itself ... because the defendant is privileged to ... ...
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Com. v. Bruno
...the indictments were returned by a subsequent grand jury. Commonwealth v. Gross, 161 Pa.Super. 613, 56 A.2d 303 (1948); Commonwealth v. Weiner, 101 Pa.Super. 295 (1930). In some of those cases the fact of notice to the defendants of when their cases were to be considered by the grand jury w......