Appeals, No. 172 and 173, April T., 1959, from judgment of Court of Quarter Sessions of Allegheny County, Oct. T., 1958, No. 540, in case of Commonwealth of Pennsylvania v. James Anderson. Judgment affirmed.
Pearse O'Connor, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 214]
James Anderson was indicted in the Court of Quarter Sessions of Allegheny County on Bill No. 540 October Sessions 1958 charging two violations of The Penal Code.*fn1 The first count charged an assault with intent to commit murder as proscribed by Section 710, 18 P.S. 4710. The second count charged the carrying
[ 191 Pa. Super. Page 215]
of a concealed firearm without a license as proscribed by Section 628(e), 18 P.S. 4628(e). The case was consolidated for trial with three related indictments involving other defendants. Anderson pleaded not guilty and waived a jury trial. After hearing the evidence, the trial judge entered a verdict of guilty on both counts. Anderson was immediately sentenced to pay the costs, a fine of $50.00, and to undergo imprisonment in the Allegheny County Workhouse for a term of not less than one and one-half nor more than three years. He thereafter presented a motion for a new trial in which the reasons assigned were that the verdict was (1) contrary to the law, (2) contrary to the evidence, and (3) contrary to the weight of the evidence. The court en banc refused to grant this motion. Anderson has appealed. The factual situation appears in the following excerpt from the opinion below:
"On the evening of August 1, 1958 Robert Brown and Harold Bailey went to a poolroom at the corner of Brushton Avenue and Tioga Street in the city of Pittsburgh. They played pool for awhile then went across the street to a tavern called the Honey Dew where they had a few drinks and became intoxicated. Sometime between 11:30 and a quarter to twelve Brown got into an altercation with a man by the name of Henry Bowe and before the affair was over one Walter Anderson, a brother of the defendant James Anderson, got into a fight. Another brother known as 'Bud' then stepped up to Brown and told him he didn't want anybody punching his brother and struck Brown across the mouth. Brown returned the blow and the fight proceeded until some bystanders were able to quell the disturbance. In the meantime, however, some of the participants got their knives out and in some manner Brown's knife was knocked to the ground.
"Brown and Bailey then left the scene and went to the place where they were rooming. Shortly afterwards,
[ 191 Pa. Super. Page 216]
armed with guns, they returned to the scene in Bailey's Lincoln automobile. Before leaving the rooming house, however, they picked up a man by the name of Calvin Perrin who got into the car with them. Bailey was driving the car, Perrin was sitting in the ...