Harry S. Kalson, Marjorie H. Matson, Pittsburgh, for appellant.
Samuel Strauss, Wendell G. Freeland, Asst. Dist. Attys., James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 82]
The defendant Alfred J. Ackerman was the Justice of the Peace in the Borough of Whitaker, Allegheny County. Eighty indictments against him were consolidated for trial before the same jury. In the indictments there were thirty charges of Cheating by Fraudulent Pretenses, eight charges of Extortion, forty charges of Misdemeanor in Office, one charge of violation of the Motor Vehicle Code and one charge of Conspiracy. The jury found the defendant guilty on fifty-seven of the charges, and returned verdicts of not guilty on eighteen indictments. There were four charges in which demurrers were sustained; one charge was nolle prossed. J. B. Bolden a deputy constable and co-defendant in the conspiracy and other charges was tried before the same jury upon twenty-six indictments and was convicted on all of the charges. The matter came before the lower court on motions in arrest of judgment and for a new trial on behalf of defendant Ackerman. Similar motions on behalf of Bolden were withdrawn.
At the argument before the court en banc only the motion for a new trial was stressed. Frank Graff, P. J., who, specially presiding, tried the case, discussed the reasons advanced by the defendant in a comprehensive opinion and, speaking for the court en banc, refused a new trial. Sentence of imprisonment in the Allegheny County Jail for a term of two years was imposed on defendant's conviction of Misdemeanor in Office on Bill 162; it was 'further ordered and directed that defendant be and is hereby removed from the Office of Justice of the Peace of Whitaker Borough'. Sentences were also imposed on each of the defendant's convictions on
[ 176 Pa. Super. Page 83]
Bills 293, 165, 130, 122, 41 and 53, in no instance for a term of imprisonment of more than two years, all to run concurrently in the county jail with the sentence imposed at No. 162 May Sessions 1953. Sentence on the conviction of defendant in every other case was suspended.
Prior to trial the defendant Ackerman had moved to quash 42 indictments charging misdemeanor in office, for the reason that under § 1104 of The Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 5104, one may not be indicted for the common law offense of misdemeanor in office when he is also indicted for a specific offense under the Criminal Code, upon which the charge of misdemeanor is founded. After argument before a court en banc, the motion was refused. The court's reason for the refusal, as stated by Braham, P. J., specially presiding as a member of the court en banc, was that in each instance the common law charge was broader than the charge of the statutory offense and on that ground it was held that both may stand. The opinion cites Com. v. Falls & Sykes, 107 Pa. Super. 129, 162 A. 482 and Commonwealth v. Yerkes, 86 Pa. Super. 5, in support of the principle that where misdemeanors are of equal rank and the proof of one involves one more fact than another there is no merger of the offenses.
In the present appeals the defendant contends that consolidation of the indictments with the charges against Constable Bolden and the trial of all of them before the same jury deprived him of due process of law, in violation of the Constitution of the United States and of this Commonwealth. He also questions three of the convictions of Misdemeanor in Office on the ground alleged that the acts charged in the indictment, as proven at the trial, constitute statutory offenses. In other cases here on appeal it is contended that the defendant's guilt is not established by the proofs.
[ 176 Pa. Super. Page 84]
There can be no difference of opinion as to what constitutes a denial of due process in the trial of one accused of crime: 'As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice'. Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 290, 86 L.Ed. 166. 'Due process of law' * * * means a course of legal proceedings according to those rules and principles which have been established * * * for the protection and enforcement of private rights'. Commonwealth v. O'Keefe, 298 Pa. 169, 148 A. 73, 74; Commonwealth v. Strada, 171 Pa. Super. 358, 90 A.2d 335. But the question, where consolidation of cases is involved, is not to be answered by a mere reckoning of the number of the total charges submitted to a single jury. Something more is involved. Cf. Commonwealth v. Quinn, 144 Pa. Super. 400, 19 A.2d 526, in which fifty indictments against three defendants were properly consolidated for trial, and Commonwealth v. Reilly, 125 Pa. Super. 340, 189 A. 768, where 61 bills were submitted to the same jury. The general rule has been thus stated: 'In the absence of substantial prejudice to accused, the court in its discretion may generally consolidate or try together two or more indictments involving similar or connected offenses'. 23 C.J.S., Criminal Law, § 931. (Emphasis supplied.) To the same effect is our statement of the principle in this language: 'It is the settled rule that the consolidation of indictments, charging separate and ...