Herman I. Pollock, Defender, Joseph Alessandroni, Jr., Francis E. Marshall, Asst. Defenders, and Thomas E. Cogan, Counsel, all of Philadelphia, for appellant.
Charles C. Gordon, Asst. Dist. Atty., John H. Maurer, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 492]
As to one phase of this case, the Commonwealth has confessed error, and the question is: Was it reversible error?
Through an unprecedented concatenation of strange errors appellant was convicted of mayhem, a crime for which he had not been indicted. To No. 333 January Sessions, 1951, appellant was indicted for burglary with intent to commit a felony, i. e., rape; to No. 334, malicious mischief; and to No. 335, aggravated assault and battery and assault and battery with intent to ravish. The bill, to No. 336, charging mayhem, was ignored by the grand jury. All the charges grew out of one offense. All the indictments, including, contrary to custom, the ignored bill, were brought into court. The able and experienced assistant district attorney failed to observe the ignoramus. Appellant's counsel, a voluntary defender, who is described as 'a competent lawyer but inexperienced in the trial of criminal cases,' endorsed a plea of not guilty, directly under the grand jury's return, without noting that it had been ignored. Whether the trial judge saw the bills does not appear, but in his charge he devoted more time defining mayhem than the other crimes. The jury found appellant guilty of all charges. The court sentenced appellant on bill No. 333, and suspended sentence on the others. Later, but within the same session, upon appellant's motion for a new trial, the court vacated the order suspending sentence in No. 336, and refused a new trial.
[ 169 Pa. Super. Page 493]
These appeals brought up the records in Nos. 333 and 336.
The Commonwealth's testimony tended to prove that appellant threw a brick into the window of a cashier's booth on an elevated station of the Philadelphia Transit Company, and thrust his arm into the booth to seize the female cashier. She left the booth to avoid his assault, and he seized her on the outside, put his hands under her clothing, tearing several buttons on her dress, and, in the struggle, bit her cheek and arm. Because the testimony of the biting was relevant to the charge of burglary with intent to commit rape without a separate indictment for mayhem, the Commonwealth argues that appellant's trial and conviction for mayhem upon the ignored bill was harmless error.
I. It will be observed, to begin with, that appellant's constitutional rights were violated. 'No person shall, for any indictable offense, be proceeded against criminally by information': Constitution of Pennsylvania, art. 1, § 10, P.S. 'In all criminal prosecutions the accused hath a right * * * to demand the nature and cause of the accusation against him * * *': Id. art. 1, § 9. The prohibition in § 10 and the guarantee in § 9 provide and require an indictment as the only process whereby an accused can be brought to trial for an indictable offense. Dauphin County Grand Jury Investigation Proceeding (No. 2), 332 Pa. 342, 354, 2 A.2d 802, 804. 'No man can be tried for a crime except upon a bill of indictment duly found by a grand jury': Hartranft's Appeal, 85 Pa. 433, 453. See 42 C.J.S., Indictments and Informations, § 1; 27 Am.Jur., Indictments and Informations, § 2.
True, under the Act of April 15, 1907, P.L. 62, § 1, as amended by the Act of June 15, 1939, P.L. 400, § 1, 19 P.S. § 241, an accused may 'waive an indictment by a grand ...