Appeals, Nos. 130, 132, 133, and 134, April T., 1955, from judgments of Court of Quarter Sessions of Erie County, Sept. T., 1954, Nos. 96, 97, 98, and 99, in case of Commonwealth of Pennsylvania v. Karl E. Morrison. Judgment affirmed.
S. Thaddeus Kwiat, for appellant.
Damian McLaughlin, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 124]
Karl E. Morrison, an architect, 67 years of age, was convicted in the court below upon each of four indictments, consolidated for the purpose of trial, charging him with sodomy committed upon four boys ranging between 12 and 17 years of age. After his conviction the defendant's motion for a new trial was refused and he was sentenced on each bill to pay the costs of prosecution and to undergo imprisonment for an indefinite term, the minimum of which was three and one-half years and the maximum seven years, all sentences to run concurrently. He thereupon took this appeal. The court below directed that defendant's appeal should operate in each case as a supersedeas.
The evidence of the Commonwealth consisted principally of testimony of each of the four boys against whom the offenses had been committed. Jack Russell, 17 years of age, testified he had known the defendant approximately three years, that he had been at the defendant's home at 233 Shenley Drive, Erie, Pennsylvania, various times during the three years he had known him and that he had slept at the defendant's home for about a year during that three year period. He testified that on one occasion when he was staying at the home of the defendant he and Roger Sampson had slept one night on a day bed and the next morning he learned from Roger that the defendant had made
[ 180 Pa. Super. Page 125]
improper advances during the night. He stated the following night when he was awake the defendant committed sodomy upon him by taking his private parts into his mouth. He also testified that during the period he had stayed at the home of the defendant there had been about 10 or 12 similar occurrences, the last time being on March 29, 1954. Lloyd Stiffey, also 17 years of age, testified he had known the defendant for about three years and that he had stayed overnight at the home of the defendant. He stated the defendant had committed sodomy upon him; the last time being in September, 1952 at the defendant's home. Richard Russell, 14 years of age, testified he had known the defendant for four or five years. He stated he had slept at the defendant's home 20 times and that the defendant had committed sodomy upon him on four different occasions, all at the defendant's home. He testified the last such occurrence was about eight or nine months prior to the trial. Arthur Russell, 12 years of age, testified he had known the defendant for four years, had slept at his home about 20 times and that on five occasions the defendant committed sodomy upon him.
There was no denial of the offenses by the defendant who did not testify in his own defense. The defense, however, presented 16 witnesses, some of whom testified they had been at the home of the defendant during some of the times when the Russell boys were there and had neither seen nor heard anything improper. Other defense witnesses testified that Jack Russell had stated the police kept a bright light on him for a long period of time until he signed a statement for them. Still other defense witnesses testified they had known the Russell boys but had never heard them make any complaint about the defendant's conduct.
[ 180 Pa. Super. Page 126]
Appellant contends he was denied a fair trial and his legal rights were violated by the refusal of the trial court to withdraw a juror and discharge appellant on the basis that the indictments set forth a March, 1954 date and sundry other times whereas the Commonwealth failed to prove any date in three of the four cases, and in the fourth case established a March 29 date but the year was not determined. This contention is clearly without merit. The Commonwealth is not restricted to proof of the crime on the exact date stated in the indictment. In Com. v. Levy, 146 Pa. Superior Ct. 564, 569, 23 A.2d 97, we said: "It may be conceded that in the prosecution of crimes of the kind here involved the Commonwealth is not required to prove their commission on the date laid in the indictment, but, failing in that, we think it has the burden, in order to sustain a conviction, of proving their commission upon some other date, fixed with reasonable certainty and being within the prescribed statutory period. ..." See also Com. v. Mourar, 167 Pa. Superior Ct. 279, 281, 74 A.2d 734; Com. v. Gipe, 169 Pa. Superior Ct. 623, 626, 84 A.2d 366. In the instant case the indictments were presented to the grand jury and true bills found on August 31, 1954. The jury could properly consider and convict upon any evidence that showed commission of the crime or crimes charged within two years prior to August 31, 1954. Reference to the testimony of ...