George D. Kline, Michael von Moschzisker, and Thomas D. McBride, all of Philadelphia, for appellant.
John H. Maurer, Dist. Atty., Raymond V. John, Asst. Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 344]
As in Com. v. Wadley, 169 Pa. Super. 490, 83 A.2d 417, the Commonwealth has confessed error as to one phase of this case, and we hold that the error vitiates appellant's conviction.
The indictment (No. 251 October Sessions, 1949) upon which he was convicted and sentenced contained three counts. The first charged assault and battery upon Doris Bergman, who was 13 years old at the trial and 10 or 11 years old at the time of the alleged offense.
[ 170 Pa. Super. Page 345]
The second charged aggravated assault and battery, but a verdict of not guilty was directed as to that offense. The third count, captioned on the endorsement of the bill as, 'assault and battery with intent to ravish' charged that appellant with force and arms on said Doris Bergman 'unlawfully did make another assault with intent her the said Doris Bergman contrary to the form of the Act of General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.' From it were omitted the words 'forcibly and against her will, to have unlawful carnal knowledge of her', the words necessary to constitute a charge under The Penal Code of June 24, 1939, P.L. 872, § 722, 18 P.S. § 4722. He was convicted on the first and third counts, and also on another indictment to which further reference will be made. He was sentenced: 'Not less than 3 years nor more than 6 years at separate and solitary confinement at labor in the Eastern State Penitentiary.'
Manifestly he was sentenced on the third count, for although the sentence exceeded the maximum prescribed by The Penal Code, § 722, supra, it could not have applied to the first count, the penalty for which is simple imprisonment.*fn1 Appellant was tried, convicted and sentenced, the Commonwealth admits, for a crime for which he had not been indicted, a grave violation of his constitutional rights which is not saved
[ 170 Pa. Super. Page 346]
by the doctrine of harmless error.*fn2 Com. v. Wadley, supra. 'Convicetion upon a charge not made would be sheer denial of due process.' Chief Justice Hughes in De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278. See also Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.
Absent other reversible errors an appropriate remedy, suggested by the Commonwealth, would be remission of the record to the court below with direction to impose sentence for assault and battery only. However, the record reveals other trial errors, most of which have become academic by the elimination of the third count from the indictment, ...