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COMMONWEALTH v. DUFF (05/27/64)

May 27, 1964

COMMONWEALTH
v.
DUFF, APPELLANT.



Appeal, No. 339, Jan. T., 1963, from order of Superior Court, appeal No. 79, Oct. T., 1963, affirming judgments of sentence of Court of Quarter Sessions of the Peace of Philadelphia County, June T., 1954, Nos. 1132 and 1133, Dec. T., 1957, Nos. 106 and 107, and Oct T., 1958, Nos. 761, 762 and 763, in case of Commonwealth of Pennsylvania v. Nathaniel Duff. Judgments reversed.

COUNSEL

Robert N. C. Nix, Jr., for appellant.

Thomas M. Reed, Assistant District Attorney, with him F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 414 Pa. Page 472]

OPINION BY MR. JUSTICE EAGEN

On February 24, 1959, the defendant, Nathaniel Duff, entered pleas of guilty in the Court of Quarter Sessions of Philadelphia County, before the Honorable EARL CHUDOFF, a judge of that court, to six separate bills of indictment charging criminal abortion, and two bills charging conspiracy to commit an abortion. He was placed on probation for a period of twenty-three months on one of the bills charging abortion, and sentence was suspended on all others.

On January 24, 1961, the probationary period imposed expired, and the probation department terminated supervision.

In June 1961, the defendant was indicted in the same court for abortion allegedly committed on August 30, 1960.

On January 4, 1963, after trial before the Honorable DAVID L. ULLMAN, sitting without a jury, the defendant was convicted on the indictment charging abortion in 1960, and was placed on probation for a period of three years.

On January 18, 1963, Judge CHUDOFF, after hearing, "vacated" the suspended sentences imposed on February 24, 1959, on five bills of indictment charging abortion, and imposed a prison sentence in each case of eighteen months to three years, the sentences to run concurrently.

The defendant appealed to the Superior Court from the judgments of sentence. That distinguished court in a four to three decision affirmed, but learned opinions filed by three individual members thereof manifest sharp conflict as to ...


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