Appeals, Nos. 224 and 225, Jan. T., 1949, from judgments of Superior Court, Oct. T., 1949, Nos. 40 and 33, respectively, affirming judgments of Court of Quarter Sessions of Philadelphia County, Sept. T., 1948, Nos. 1159 and 1162, in cases of Commonwealth of Pennsylvania v. Joseph McCusker and Same v. Joseph McClain. Judgment against McCusker on indictment No. 1159 set aside, on indictment No. 1162 affirmed; judgment against McClain affirmed.
Michael von Moschzisker, with him Thomas D. Mcbride and McBride, Lipschitz, Woolston, Berger & Bohlen, for McCusker, defendant.
John Patrick Walsh, with him Leon Rosenfield, for McClain, defendant.
Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for Commonwealth.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
This is an appeal by the defendants from the judgment of the Superior Court affirming their convictions and sentences.
Defendants were jointly indicted on Bill No. 1159 upon the charge of taking a female child under the age of sixteen years for immoral purpose and of inveigling and enticing her for the purpose of sexual intercourse; and on Bill No. 1162 for aggravated assault and battery, and assault and battery with intent to rape. Both defendants signed a waiver of trial by jury.
After trial the court found both defendants guilty on Bill No. 1159 and each was sentenced to a term of not less than two and a half years nor more than five years in the Eastern State Penitentiary. On Bill No. 1162 McClain was found not guilty and McCusker was found guilty and received a consecutive sentence of not less than two and a half and not more than five years in the Eastern State Penitentiary. The appeals of both defendants were argued at the same time.
At about 10 P.M. on September 18, 1948, Patricia Bonner, aged thirteen years, left her home in North Philadelphia to visit a friend in Germantown. She became lost and finally boarded a route 47 trolley. She
alighted from this trolley at about 1 A.M. Sunday in South Philadelphia, a section of the city unfamiliar to her. She walked around for a while and becoming tired, she sat down on some steps to rest. a group of boys her own age passed her and she got up and started to walk again. The boys told her to go to a certain place, which was a warehouse yard. A group of "big" boys approached and the younger boys ran away. The younger boys were either in or near the warehouse yard when they saw the older boys approaching. The older boys brought Patricia into the warehouse shack, where she was discovered by the police officers. She testified that upon her arrival at the shack five or six of the boys either had intercourse with her or attempted to do so. A guard at the Marine Quartermaster's summoned the police when he saw the group entering the yard. The police officers came to the warehouse shack where they found McCusker "on top" of the child, who was lying on the floor of the shack with her clothes up around her neck. McCusker was immediately placed under arrest. Another of the group, a boy named Boyle, tried to escape but another officer captured him. The defendant McClain was found hiding under a truck approximately twenty-five feet from the place where McCusker and the ...