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COMMONWEALTH v. BUFORD (09/28/55)

September 28, 1955

COMMONWEALTH
v.
BUFORD, APPELLANT.



Appeal, No. 65, April T., 1955, from judgment and sentence of Court of Quarter Sessions of Allegheny County, November Sessions, 1951, No. 68, in case of Commonwealth of Pennsylvania v. Ben Buford. Judgment affirmed.

COUNSEL

Charles B. Jarrett, for appellant.

Harry A. Estep, with him Charles D. Coll, special Deputy Attorneys General, and Herbert B. Cohen, Attorney General, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, and Ervin, JJ. (woodside, J., absent).

Author: Wright

[ 179 Pa. Super. Page 313]

OPINION BY WRIGHT, J.

The Attorney General of the Commonwealth petitioned the Court of Quarter Sessions of Allegheny

[ 179 Pa. Super. Page 314]

County for the calling of a special grand jury to investigate vice and crime, inter alia, in the Borough of Homestead. Ben Buford was, and is, a police officer in said Borough. Subpoenaed by the Commonwealth, and sworn by the presiding judge, Buford appeared as a witness before the investigating body on February 28, 1951. As a result of his testimony, the special grand jury recommended that Buford be indicted for perjury. On November 9, 1951, the regular grand jury returned a true bill. A motion to quash was overruled and refused. On April 30, 1953, after a four day trial, the petit jury returned a verdict of guilty. Motions in arrest of judgment and for a new trial were denied, and Buford has appealed.

Appellant first contends that the lower court erred in refusing to arrest judgment on the ground, previously set forth in the motion to quash, "that the language of the indictment was vague, indefinite and uncertain". The indictment avers that appellant wilfully, knowingly, feloniously, falsely and corruptly swore that he did not know that gambling establishments, houses of ill fame, lotteries and bootlegging establishments had been operating in the Borough of Homestead, that he had not at any time had notice that such illegal establishments and operations had been conducted in the Borough of Homestead, and that he had not at any time visited and been in any of the said establishments, "which aforesaid statement was false, inasmuch as in truth and fact, as he, the said Ben Buford, well knew on the twenty-seventh day of May in the year of our Lord one thousand nine hundred and fifty, and at divers times prior thereto, had been in a gambling establishment in the said Borough of Homestead, to wit: a gambling establishment on Sixth Avenue, between Ann and Amity Streets, Homestead".

[ 179 Pa. Super. Page 315]

Appellant argues that the indictment "fails to allege a specific address on Sixth Avenue between Ann and Amity Streets where the defendant is alleged to have falsely sworn that he had not visited on May 27, 1950 ... or some circumstances which would pinpoint the premises involved. Furthermore, the indictment fails to include the questions asked and the answers given before the investigating grand jury and clearly designating which answers were material and false". Our conclusion is that the language in question was sufficient to inform appellant of the charge which he was called upon to answer and to protect him against a second conviction for the same offense. See Commonwealth v. Campbell, 116 Pa. Superior Ct. 180, 176 A. 246. In passing upon the sufficiency of criminal pleadings, courts look more to substantial justice than to technicalities: Commonwealth v. Romesburg, 91 Pa. Superior Ct. 559. Over nice exceptions are not to be encouraged, especially in non-capital cases: Commonwealth v. Batch, 120 Pa. Superior Ct. 592, 183 A. 108. Specifications of the evidence to be adduced need not be shown: Commonwealth v. Wilcox, 112 Pa. Superior Ct. 240, 170 A. 455, affirmed 316 Pa. 129, 173 A. 653. As pointed out in the Wilcox case, if an indictment is deemed vague and indefinite, a bill of particulars may be ordered.

Appellant's second contention is that his demurrer to the evidence should have been sustained. At the trial the Commonwealth first introduced the pertinent portion of appellant's testimony before the special grand jury. Michael Hickey then testified that he was familiar with Sixth Avenue between Ann and Amity Streets, that he had been there frequently in 1949, that there were then operating some sixteen to twenty ...


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