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COMMONWEALTH v. MCSORLEY ET AL. (12/29/53)

December 29, 1953

COMMONWEALTH
v.
MCSORLEY ET AL.



COUNSEL

C. William Kraft, Media, Sidney L. Wickenhaver, Robert L. Trescher, C. Brewster Rhodes, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellant.

J. Harold Hughes, Asst. Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty., Raymond R. Start, Dist. Atty., Media, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, Jj.

Author: Gunther

[ 174 Pa. Super. Page 636]

GUNTHER, Judge.

These five defendants were charged and found guilty under two indictments. The first indictment had three counts: (1) conspiracy to riotously assemble and assault, (2) conspiracy to riotously assemble to make great noise, riot, tumult and disturbance, and (3) conspiracy to riotously and routously demolish, destroy and damage property. The second indictment charged riot. All the defendants were found not guilty of riotous destruction of property. Defendant McSorley was found not guilty of assault and battery and the indictments charging assault and battery by the other defendants were withdrawn from the jury.

The testimony revealed that the defendants were among a large group of men who drove up to the Delaware County jail, which was being demolished by workmen, and entered the premises issuing threats. They proceeded to attack several workmen and damaged all the equipment on the premises before beating a hasty retreat. Only these five were apprehended. The incident arose apparently because of a dispute concerning unionism.

The defendants contend first that the trial judge made an error of omission in his charge. When he charged with respect to the conspiracy counts, he defined conspiracy in general terms, but failed to define the specific crimes under each conspiracy count, viz., assault and battery, riot, and riotous destruction of property. The trial judge did, however, define these crimes fully when discussing the indictments of the substantive offenses themselves. Further, it is pointed

[ 174 Pa. Super. Page 637]

    out that he failed to instruct the jury as to the separateness of the counts of conspiracy. It is now argued that this probably misled the jury into an inconsistent verdict, in that they returned not guilty verdicts as to two of the three substantives offenses, yet returned a guilty verdict as to conspiracy to commit all three offenses.

A review of the record reveals that all the crimes involved were properly defined in the charge, and the issues were substantially and fairly covered. No request for further instructions was made. Defendants cannot now complain of inadequacy of definition, unless it can be shown that such omissions contributed to the jury's verdict. Commonwealth v. Bozzi, 169 Pa. Super. 206, 82 A.2d 303. The defendants now offer the weak suggestion that the jury was probably confused. There is no basis for such contention, for all the crimes, including conspiracy, were adequately defined. It is true that conspiracy is not a self-defining term, but it was defined in the charge, as were the substantive offenses, although not in juxtaposition. The charge as a whole reveals no fundamental error, but, at most, a non-prejudicial inadequacy to which exception was not taken. There is also no merit to the argument of inconsistency in the verdict. The evidence was sufficient to warrant a verdict of conspiracy to commit all three crimes, which were in fact committed, but was weak in identification of these defendants as the persons directly responsible for assault and battery and destruction of property. The verdict of guilty on all conspiracy counts does not force the conclusion that the jury was misled into believing they could not separately assess each count, in view of the overall fairness and adequacy of the charge.

The defendants further contend that conspiracy to riot is not an indictable offense ...


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