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COMMONWEALTH v. NESTOR (06/11/57)

June 11, 1957

COMMONWEALTH
v.
NESTOR, APPELLANT.



Appeals, Nos. 34 and 35, March T., 1957, from judgments of Court Oyer and Terminer of Dauphin County, Sept. T., 1955, Nos. 12 and 13, in case of Commonwealth v. Robert Nestor. Judgments affirmed.

COUNSEL

Arthur L. Goldberg, with him John H. Bream, for appellant.

Martin H. Lock, Assistant District Attorney, with him H. F. Dowling, District Attorney, for appellee.

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

Author: Hirt

[ 183 Pa. Super. Page 352]

OPINION BY HIRT, J.

Two separate indictments charging sodomy, were consolidated for trial and the defendant was convicted on both of them. These appeals are from the judgments of sentence imposed. The defendant contends that there is error in the refusal of new trials. The cases were well tried and there was not even a general exception to the court's charge. The motions for new trials contain the usual stereotyped general averments and nothing more. Under the Rules of Court of Dauphin County, as well as by the general law, defendant was obliged to be specific in the assignments of errors of fact or of law in seeking new trials. He nevertheless rested upon the general averments of his petition although granted an additional period of 30 days in which to file specific reasons for new trials. The lower court however did not restrict the defendant's argument by enforcing the rule of Dugan et al. v. McGara's Inc., 344 Pa. 460, 465, 25 A.2d 718, and neither shall we. We shall discuss the four questions involved as stated by the defendant regardless of whether in strictness they are properly before us.

The defendant complains of the action of the trial judge in consolidating the two indictments for trial, and of the refusal to sequester the witnesses. The consolidation of indictments charging separate and distinct offenses is largely within the discretion of the trial court and where the indictments, as here, are closely related, such consolidation will not furnish grounds for reversal unless the defendant has been prejudiced thereby. Commonwealth v. Krzesniak, 180 Pa. Superior Ct. 560, 567, 119 A.2d 617; Commonwealth v. Ackerman, 176 Pa. Superior Ct. 80, 85, 106 A.2d 886. As to ordering sequestration of the witnesses a trial judge in this State clearly has that power. Commonwealth v. Principatti, 260 Pa. 587, 598,

[ 183 Pa. Super. Page 353104]

A. 53. But whether witnesses shall be excluded from the courtroom, except when testifying, is also a matter within the sound discretion of the trial judge. Commonwealth v. Sloat, 298 Pa. 10, 147 A. 834; Commonwealth v. Turner, 371 Pa. 417, 426, 430, 88 A.2d 915. There was no abuse of discretion here in either respect since the defendant was not prejudiced by the refusal of separate trials nor the refusal to sequester the witnesses, as a review of the record will demonstrate.

The charge in each indictment was sodomy under § 501 of the Act of June 24, 1939, P.L. 872, 18 PS § 4501. Indictment Number 12 involved the charges of defendant's homosexual relations with one Thomas Hoover, on three occasions; Bill 13 involved five acts of sodomy committed by the defendant within the statutory period with one William Dietrich. Consideration of the defendant's contention that the verdicts of the jury are against the weight of the evidence, involves a review of the credible testimony (with some violence however to the sensibilities) somewhat in detail.

In the light of the verdict (Commonwealth v. Schuster, 158 Pa. Superior Ct. 164, 44 A.2d 303) these are the material facts which we must accept: At the time of the trial in January 1956 Hoover was 18 years old. He had first met the defendant about three years before when the defendant came along on his horse and stopped to talk to him. Some time later the defendant picked him up in his automobile and took him home. In June 1953, while Hoover was waiting for a ride one morning the defendant, with one Joseph Schmick (a known sodomist, who now is serving a sentence in a penal institution) in his car, offered to ...


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