Appeal, No. 22, April T., 1957, from judgment of Court of Quarter Sessions of Mercer County, March T., 1956, No. 114, in case of Commonwealth of Pennsylvania v. Walter Phillips. Judgment affirmed.
B. H. Marks, with him Marks & Marks, for appellant.
John Q. Stranahan, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 183 Pa. Super. Page 379]
Appellant was indicted and tried on the charge of aggravated assault and battery in the Court of Quarter Sessions of Mercer County. He was convicted of assault and battery. A motion for a new trial was refused,
[ 183 Pa. Super. Page 380]
and defendant was sentenced to pay the costs of prosecution and a fine of $200, and to undergo imprisonment in the Mercer County Jail for a period of not less than thirty days and not more than ninety days. A supersedeas was granted by the court below.
The bill of indictment charged aggravated assault and battery*fn1 upon one Arthur Hicks on December 19, 1955, by the defendant, Walter Phillips.
It was permissible for the jury to convict defendant of assault and battery (Act of June 24, 1939, P.L. 872, § 708, 18 PS § 4708) under this indictment. Com. v. Bergdoll, 55 Pa. Superior Ct. 186.
The sufficiency of the evidence to sustain the conviction of defendant is not questioned. Defendant contends that certain trial errors require a new trial.
It appears that the prosecution of defendant arose out of an incident occurring on December 19, 1955, near the plant of the Westinghouse Electric Corporation at Sharon. A strike was then in progress. On that evening, about 8 p.m., Arthur Hicks, after completing his work for the day at the plant, was entering a bus which was waiting at a point across the street from the plant entrance. As Hicks boarded the bus, with his back to the door, he was struck on the back of the neck and head, his arms were pinned to his side, and he was dragged backward to the sidewalk. While this was taking place he was beaten and kicked. After getting back on his feet, while his arms were still pinned to his side, he heard the defendant shout, "Drag him off and get the driver and we'll have the bus." While ...