Appeal, No. 193, April T., 1961, from judgment of Court of Quarter Sessions of Allegheny County, Sept. T., 1959, No. 459, in case of Commonwealth of Pennsylvania v. Herbert James. Judgment affirmed.
Pearse O'Connor, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 111]
This is an appeal from the judgment of sentence of the Court of Quarter Sessions of Allegheny County by Herbert James, the defendant-appellant, after conviction of the charge of aggravated assault and battery; and from the denial by the court en banc of his motions in arrest of judgment and for a new trial.
He was tried before Judge DUMBAULD, a visiting judge from Fayette County, without a jury and found guilty. Post trial motions in arrest of judgment or for a new trial were argued before a court en banc consisting
[ 197 Pa. Super. Page 112]
of WEISS, GRAFF, MCCREARY and DUMBAULD, JJ., and were denied.
As the defendant puts it, the issue is factual. It is whether the credible evidence is of sufficient weight to sustain a charge of aggravated assault and battery.
The defendant, Herbert James, is a police officer of the City of Pittsburgh. He was assigned to the investigation of lottery activities in that city. On June 2, 1959, he made an arrest of one, Alfred Murgie, a known numbers operator, in the B & J Tavern, the place of business of Bane Pivirotto, the private prosecutor. At the time of this arrest Bane Pivirotto was not present in his tavern. On June 4, 1959, together with other police officers, the defendant approached the B & J Tavern and saw Murgie in the neighborhood. He took him into custody and they all entered the tavern. The prosecutor was behind the bar when they entered. The evidence of what took place thereafter is conflicting. The testimony of the defendant and his witnesses, and the testimony of the private prosecutor and his witnesses, tell two divergent stories of what took place in the tavern. The defendant contended that he was performing his duties as a police officer in seeking evidence of numbers writing in the tavern; that he went behind the bar for that purpose; that he did not have a search warrant and was in plain clothes; that he made his identity known to the prosecutor; that the prosecutor attempted to resist his efforts to perform his duties and he then used such force, not violent in any degree, as was necessary to place the prosecutor in custody.
The prosecutor testified that the defendant, not disclosing his identity, in plain clothes, without a warrant, rushed behind the bar and opened his cash register; that when the prosecutor remonstrated, the defendant seized him, beat him with his fists ...