Appeal, No. 55, Oct. T., 1954, from judgment of Court of Quarter Sessions of Centre County, May T., 1953, No. 162, in case of Commonwealth of Pennsylvania v. Donald L. Ray. Judgment affirmed.
Eugene W. Lederer, for appellant.
Edward Friedman, Deputy Attorney General, with him Edward L. Willard, Special Counsel, Ralph Snyder, Deputy Attorney General and Frank F. Truscott, Attorney General, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright and Ervin, JJ. (woodside, J., absent).
[ 177 Pa. Super. Page 156]
OPINION BY RHODES, P. J.,
The question presented on this appeal is whether section 51 of the Act of March 31, 1860, P.L. 427, 19 PS § 831, precludes the conviction and sentence of defendant, Donald L. Ray, for the crime of robbery. When convicted of this felony, defendant was in process of trial for riot, a misdemeanor, for which he was subsequently convicted. It appears that the robbery was committed by defendant, a penitentiary inmate, when he forcibly took a revolver from a guard at the beginning of a riot in which defendant and other inmates of the same institution participated.
Defendant was indicted on September 1, 1953, at No. 162, May Sessions, 1953, in the Court of Quarter Sessions of Centre County, on the charge of robbery. On the same day this defendant was also charged at No. 161, May Sessions, 1953, with the crime of riot. True bills were returned by the grand jury in both cases. The bill of indictment charging defendant with riot set forth that the offense occurred on January 19, 1953, and thereafter. The riot charge grew out of a general disturbance by the inmates of Rockview Prison Farm, Western State Penitentiary, Centre County, Pennsylvania, between January 19 and 22, 1953, in which the inmates seized several guards, disarmed them, and held them as hostages; seized control of the penitentiary and locked and barricaded the exits and entrances; set the contents of the buildings on fire, and otherwise destroyed property; disturbed the peace; seized guns and went about armed; acted in concert and proceeded to execute their purpose with violence;
[ 177 Pa. Super. Page 157]
and wrought general havoc, alarming and terrifying the public. See Com. v. Zwierzelewski, 177 Pa. Superior Ct. 141, 110 A.2d 757. The charge of robbery was based on defendant's taking a loaded revolver by force from a penitentiary guard during the first hour of the riot which extended over a four-day period, January 19th to January 22d.
On Tuesday, September 15, 1953, defendant was first called for trial on the indictment charging riot (No. 161, May Sessions, 1953), together with fourteen other co-defendants. The trial for riot continued from Tuesday, September 15th, to Saturday, September 19th, at which time the court ordered an adjournment so that one of the jurors could attend the funeral of a relative in another state. The jurors who had been impaneled to try the fifteen defendants for riot were given the usual admonition and were directed to return on Tuesday, September 22d, to hear the charge of the court, and thereupon deliberate upon their verdicts. Meanwhile, on Monday, September 21st, the defendant was called for trial on the indictment charging robbery. He entered a plea of not guilty, was tried before a judge and a jury, and was found guilty on the same day. On the day following, Tuesday, September 22d, the jury which had been selected to try the defendant and fourteen others resumed deliberation and returned a verdict of guilty as to each. After having been convicted of robbery, defendant filed a motion in arrest of judgment on the ground that section 51 of the Act of March 31, 1860, P.L. 427, 19 PS § 831, was a bar to such conviction. The trial court overruled defendant's motion and imposed sentence on the indictment charging robbery of which he had been found guilty by the jury.
On this appeal appellant contends that, under the circumstances here present, section 51 of the Act of March 31, 1860, ...