Appeal, No. 244, Oct. T., 1959, from judgment of Court of Quarter Sessions of Chester County, Feb. T., 1957, No. 186, in case of Commonwealth of Pennsylvania v. Stephen Bilinski. Judgment affirmed.
William J.C. O'Donnell, with him Herbert Linsenberg, and Meltzer & Schiffrin, and O'Donnell & O'Donnell, for appellant.
John E. Stively, Jr., District Attorney, for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).
[ 190 Pa. Super. Page 403]
This is an appeal by the defendant appellant, Stephen Bilinski, from his conviction and sentence in the Court of Quarter Sessions of the Peace of Chester County for assault and battery.
The undisputed facts reveal that on Sunday, October 28, 1956, John Kenelly, age 53, a steelworker resident of Phoenixville, Pennsylvania, being in a condition that he described as "half drunk or a little more" was in the Trio Restaurant in Phoenixville having something to eat. At the time, the appellant in company with one John Geri, was riding in the appellant's automobile. Kenelly knew both men and accepted an offer from them to take him home. He got into the car, a stop was made on the way to his home, a fight ensued and Kenelly charged the two men had assaulted and robbed him of $140.
The appellant was charged with the crimes of robbery, robbery with an accomplice, robbery by violence, aggravated assault and battery and assault and battery. All the charges were submitted to a jury, excepting aggravated assault and battery, upon which charge the court below directed a verdict of acquittal. After trial by jury, he was acquitted of all charges except assault and battery.
A motion in arrest of judgment, on the grounds that the verdicts were inconsistent and contrary and that there was insufficient evidence to sustain the verdict of guilty of assault and battery, was denied by the court below. The appellant was sentenced to pay a fine of $100, the costs of prosecution and undergo imprisonment in the Chester County Farms for a period of 9 months.
The appellant raises two questions by this appeal for our consideration: (1) Under the Act of June 15, 1951, P.L. 585, 19 PS § 871, should the motion in arrest of judgment because of the insufficiency of evidence
[ 190 Pa. Super. Page 404]
to sustain the conviction have been granted? and (2) Was the sentence of 9 months imprisonment for the crime ...