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COMMONWEALTH v. AIKENS (11/16/55)

November 16, 1955

COMMONWEALTH
v.
AIKENS, APPELLANT.



Appeal, No. 284, Oct. T., 1955, from judgment of sentence of Court of Quarter Sessions of Philadelphia County, March T., 1955 No. 336, in case of Commonwealth of Pennsylvania v. Octavia Aikens. Judgment affirmed.

COUNSEL

Donald J. Goldberg, with him Garfield W. Levy, Albert S. Oliensis, and Levy & Oliensis, for appellant.

Victor Wright, Assistant District Attorney, with him Christopher F. Edley, Assistant District Attorney, Vincent G. Panati, First Assistant District Attorney, and Samuel Dash, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Rhodes

[ 179 Pa. Super. Page 502]

OPINION BY RHODES, P.J.

This is an appeal by defendant from judgment of sentence of the Court of Quarter Sessions of Philadelphia County. Defendant was indicted on bills of indictment Nos. 335-340, March Sessions, 1955. Each bill charged that defendant unlawfully dealt in, sold and trafficked in narcotic drugs. The trial judge, sitting without a jury, found defendant guilty on all bills. Defendant was sentenced on bill No. 336 to an indefinite term at the Women's Industrial Home at Muncy. Sentence was suspended on the other five bills.

[ 179 Pa. Super. Page 503]

Defendant was convicted and sentenced on May 31, 1955. No motion for a new trial or in arrest of judgment was made or filed before sentence. On June 30, 1955, a paper was filed entitled "Motion for a New Trial and Motion in Arrest of Judgment Nunc Pro Tunc." No action was taken thereon. Rule 41, adopted March 8, 1936, of the Court of Quarter Sessions of Philadelphia County, provides that: "No rule to show cause why a new trial should not be granted will be allowed by the court, unless the judge who tried the cause shall in the first instance entertain a motion for such rule. The motion, if not so entertained, shall at once be overruled." While it appears that such motions may be made any time prior to judgment and sentence, they should be made immediately after rendition of the verdict and before the judge who tried the case. On July 11, 1955, an appeal was taken to this Court. The court below was afforded no opportunity to pass upon the questions which have been raised on this appeal. For this reason the appeal should be dismissed. However, considering defendants' contentions on their merits, the conviction and sentence must be sustained.

The bill of indictment upon which defendant was sentenced set forth that defendant, "did unlawfully and feloniously deal in, dispense, sell, deliver, distribute, prescribe, traffic in and give away a quantity of a certain drug, compound, substance and preparation, being and containing a compound and derivative of opium contrary to the form of the Act of General Assembly in such case made and provided, ..." The specific drug involved in this case was heroin, a derivative of opium.

Section 1 of the Anti-Narcotics Act of July 11, 1917, P.L. 758, as amended, 35 PS § 851, provides in part as follows: "Except as limited in section two of this

[ 179 Pa. Super. Page 504]

    act, the word 'drug,' as used in this act, shall be construed to include: (a) Opium; ... (d) any compound or derivative of opium, ...; or (e) any ...


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