Appeal, No. 40, March T., 1964, from judgment of Court of Quarter Sessions of York County, Aug. T., 1962, No. 14, in case of Commonwealth of Pennsylvania v. Gussie Greer. Judgment reversed.
John R. Gailey, Jr., with him Victor Dell'Alba, for appellant.
Lewis H. Markowitz, Assistant District Attorney, with him Earl R. Doll. Assistant District Attorney, and Daniel W. Shoemaker, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 112]
This is an appeal from the judgment of sentence of the Court of Quarter Sessions of York County by Cussie Greer, the defendant-appellant, after conviction of the violation of the Act of 1939, June 24, P.l. 872, § 511, 18 PS § 4511, for keeping and maintaining a disorderly house; and from the refusal by the court below of his motion in arrest of judgment. He was sentenced to pay a fine of $100.
The defendant was tried and convicted before the Hon. JAMES E. BUCKINGHAM, without a jury. The record discloses that he resided at 221 Oak Lane in record discloses that he resided at 221 Oak Lane in consisted of four rooms, for a period of three to four months; that police officers kept the house under surveillance from 11:55 p.m. on July 28, 1962 until 4:00 a.m., on July 29, 1962; that they saw about twenty people come and go during that period of time; that there is nothing in the record of any complaints concerning the house prior to the raid or any testimony as to the purpose of the surveillance; that the police went in the front and back doors at 4:00 a.m. and found from ten to twenty people, including the defendant; that the police did not hear any noise until "we pulled up to the door"; that officer Goss testified that he couldn't hear anything while they were outside the house. They found five bottles of assorted whiskey, either empty or part full, two gallons of wine, ten empty and one hundred eighteen full cans of beer and three empty and twenty-seven full bottles of beer and three decks of cards; that the defendant told a police officer that he was running the place and that he intended to start a club; that he charged twenty-five cents for beer. The witnesses who purchased the beer did not know who sold it to them; that the people were sitting and talking in the kitchen and living room; there was talking but "I wouldn't say loud"; that there
[ 203 Pa. Super. Page 113]
was no dancing, card playing, immoral acts or drunkenness; that the talking was "just like any people sit and talk and drink, light talk"; that the defendant was searched and no money was found on his person or in the house.
With such a record the judgment must be arrested and the defendant discharged. The evidence does not establish the commission of the misdemeanor charged under the Act of 1939 (supra). He was not charged with violation of the Liquor Code.
Section 511 reads as follows: "Whoever keeps and maintains a common, ill-governed and disorderly house or place, to the encouragement of idleness, gaming, drinking, or misbehavior, and to the common nuisance and disturbance of the neighborhood or orderly citizens, is guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ( $500), or to undergo imprisonment not exceeding one (1) year, or both."
This Court has held that this section defines a misdemeanor long known at common law and did not create a new offense. Com. v. Wesley, 171 Pa. Superior Ct. 566, 91 A.2d 298 (1952). In Com. v. Cicone, 85 Pa. Superior Ct. 316(1925), we said at page 318: "In a broad sense the term 'disorderly house' includes bawdyhouses, common gambling houses, and places of like character. It must, however, be recognized that the specific kinds of disorderly houses which are regarded in law as nuisances per se are bawdyhouses and gaming houses. The other kinds of disorderly houses are nuisances only as they are conducted in a manner to annoy the public; this class includes tippling houses and places of like character. The neighbors who complain of the disturbance ...