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COMMONWEALTH v. BUTLER (07/17/52)

July 17, 1952

COMMONWEALTH
v.
BUTLER



COUNSEL

Edmund G. J. Dale, Philadelphia, for appellant.

Thomas M. Reed, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 171 Pa. Super. Page 351]

RHODES, President Judge.

Appellant, Frank J. Butler, was adjudged in contempt by Judge Edwin O. Lewis of the Court of Quarter Sessions of Philadelphia County, and sentenced to serve six months in the county prison.

Appellant had been called before a special grand jury (March, 1951) which was investigating bribery and corrupt solicitation in Philadelphia County. It had been directed to investigate conditions within the county relating to an alliance said to exist between police and other public officials and criminals engaged

[ 171 Pa. Super. Page 352]

    in the operation of lotteries and other forms of gambling, such relationship being maintained through bribery and corrupt solicitation. Appellant was sworn in open court by Judge Lewis who had charged the grand jury.

In testifying before the grand jury, appellant refused to answer any questions beyond stating that he was formerly a member of the police force.*fn1 The transcript of the proceedings disclosed that, when asked the date he was separated from the police force, he replied, 'I refuse to answer that,' and then continued by saying, 'I refuse [to answer] any questions you ask me.' The reason he assigned for this action was that he was out of the police department, and consequently he had no duty to testify. Appellant was then brought before Judge Lewis who was advised of the exact questions that appellant had refused to answer. The questions

[ 171 Pa. Super. Page 353]

    and answers were read to the court by the official stenographer. Appellant's counsel, who was present, informed the court that he had advised his client to answer all proper questions that he might be asked in the investigation. Appellant, in response to the court's inquiry as to his attitude, stated that he persisted in his refusal to answer any questions. It thus appears from the record that the court was advised of appellant's contumacy before the grand jury; that appellant refused in open court to answer any questions, or to testify in connection with the investigation, although given an opportunity; that thereupon the court adjudged him in contempt and imposed sentence.

The objections which appellant has raised to the action of the court below are numerous but without merit.*fn2 We are able to find no legal justification for appellant's conduct. In the first place, appellant did not claim or rely upon the privilege against self-incrimination afforded in Article I, ยง 9, of the Constitution of Pennsylvania, P.S. This privilege is personal and may be waived by the failure to assert it. Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 441, 95 L.Ed. 344, 348; Com. v. Bolger, 229 Pa. 597, 79 A. 113; Com. v. Tracey, ...


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