March 28, 1960
Appeal, No. 246, Jan. T., 1960, from judgment of Superior Court affirming judgments of Court of Quarter Sessions of Clearfield County, Nov. T., 1958, No. 84, in case of Commonwealth of Pennsylvania v. Sami H. Soudani. Judgment modified by setting aside sentence on one count and otherwise affirmed. Same case in Superior Court: 190 Pa. Super.Ct. 628. Indictment charging defendant with aggravated assault and battery and assault with intent to kill. Before PENTZ, P.J. Verdicts of guilty and judgment of sentence entered thereon. Defendant appealed to the Superior Court, which affirmed the judgment of the court below. Appeal to Supreme Court allowed.
Marjorie Hanson Matson, for appellant.
Eugene G. Kitko, Assistant District Attorney, with him Joseph S. Ammerman, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 398 Pa. Page 547]
OPINION PER CURIAM
Appellant, Sami H. Soudani, was found guilty in the Court of Quarter Sessions of Clearfield County and sentenced to 1 1/2 to 3 years on a charge of aggravated assault and battery (misdemeanor) and sentenced to 3 1/2 to 7 years on a charge of assault with intent to kill (felony), both sentences to run concurrently. In addition, a fine of $1,000 was imposed on the second count. Both judgments of sentence and fine were affirmed by the Superior Court. Since both charges arise out of the same transaction, differing merely in degree,*fn1 only one penalty can be imposed after conviction of both. Commonwealth v. McCusker, 363 Pa. 450, 70 A.2d 273 (1950). To hold otherwise would contravene the intent of the legislature and impose double
[ 398 Pa. Page 548]
punishment for the same crime.*fn2 The sentence of relator on his conviction of aggravated assault and battery is set aside. The judgment is otherwise affirmed.