Commonwealth v. Weiner

• Decision Date: 27 December 1930
• Docket Number: 220-1930
• Citation: Commonwealth v. Weiner, 101 Pa.Super. 295 (Pa. Super. Ct. 1930)
• Parties: Commonwealth v. Harry Weiner, Appellant
• Court: Pennsylvania Superior Court

101 Pa.Super. 295

Commonwealth v. Harry Weiner, Appellant

No. 220-1930

Superior Court of Pennsylvania

December 27, 1930

Argued September 30, 1930.

Appeal by defendant from judgment and sentence of O. & T SchuylkillCounty-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. SnyderDistrict Attorney, M. M. Burke and Otto E. Farquhar, for appellee.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham and Whitmore, JJ.

OPINION

Whitmore, J.

The defendantappellant 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, 1928he 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 1929he 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 Countycourt 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.SeeCommonwealth v. Magid and Dickstein,91 Pa.Super. 513.

As to the second assignment of...