Appeal, No. 260, April T., 1954, from judgment of Court of Oyer & Terminer of Greene County, Sept. T., 1953, No. 1, in case of Commonwealth of Pennsylvania v. Andrew J. Waychoff, Jr. Judgment affirmed.
Andrew J. Waychoff, Jr., appellant, in propria persona, submitted a brief.
A. J. Marion, Waynesburg, Special Acting Dist. Atty. for Greene County, for Commonwealth.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 184]
A jury found the defendant guilty on both counts of an indictment which charged, first, assault with intent to commit murder and, second, aggravated assault and battery. The lower court dismissed motions in arrest of judgment and for a new trial and sentenced the defendant to pay the costs of prosecution, a fine of $500.00 and to undergo imprisonment in the Greene County jail for a period of twelve months. Very probably because of the jury's recommendation of mercy, the court stated that if the fine and costs were paid within a period of thirty days, it would consider an application for parole. Instead of accepting the court's offer, the defendant promptly appealed. In a writing addressed to the prothonotary of the Superior Court, defendant requested that his case be considered as submitted on his written brief without oral argument. We have complied with this request.
On June 12, 1953 the defendant, an attorney-at-law, was at his house, which had formerly been occupied by James Homer Jenkins and family, who had been legally evicted therefrom. Their furniture had been stored by the defendant at various places, either in the house, on the porch or in the barn. Jenkins, his wife and Earnest Boonie Crawford stopped their car on the road passing the residence of the defendant, and Jenkins got out, went down the bank to the path leading to the house, where he saw the defendant, and said something to him. The defendant then walked up the path to the porch and into the house, closing the door of the porch. He then unlocked the padlock to the door upstairs and went upstairs, where he secured a loaded double barreled shotgun which he double cocked, went downstairs and walked over to the door, which was closed and barred by a two by four. Some words passed between the two. The gun was
[ 177 Pa. Super. Page 185]
discharged while defendant was opening the door and two shots were fired. Jenkins was wounded in the back of his neck. Defendant contended that the shooting was accidental and, if not accidental, it was done in self-defense.
The lower court did not specify the count upon which sentence was imposed. It could have been imposed only under the assault and battery misdemeanor count because it was a simple imprisonment sentence for a flat term of twelve months in the county jail. It could not have been imposed on the felony charge of assault with intent to kill because it was not for an indefinite period with minimum and maximum limits. Sec. 6, Act of June 19, 1911, P.L. 1055, as amended, 19 PS 1057. Therefore we will not consider any of the questions presented with reference to the count of assault with intent to kill. In Com. v. Logan, 172 Pa. Superior Ct. 365, 369, 94 A.2d 99, we said: "The defendant was convicted on both charges in a general verdict and but one sentence was imposed. Accordingly, if the verdict is valid as to either count in the indictment, the sentence may not be set aside since it does not exceed the maximum penalty which could have been imposed. Commonwealth v. Amto, 148 Pa. Superior Ct. 151, 24 A.2d 681; Commonwealth v. Harrison, 137 Pa. Superior Ct. 279, 8 A.2d 733. We therefore may pass the question whether the proofs are sufficient, under the present indictment, to convict the defendant as accessory or otherwise, of setting up a lottery, and refer to the second count in the indictment upon which the defendant, in our view, was properly convicted."
Where an indictment contains two counts, the court is not bound to state specifically that it sentenced on the second count rather than on the first so long as the ...