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COMMONWEALTH v. DESMAIRIS (09/11/69)

decided: September 11, 1969.

COMMONWEALTH
v.
DESMAIRIS, APPELLANT



Appeal from judgment of sentence of Court of Quarter Sessions of Lancaster County, Sept. T., 1967, No. 148-B, in case of Commonwealth of Pennsylvania v. Alphee N. Desmairis.

COUNSEL

Joseph J. Lombardo, for appellant.

H. Rutherford, Assistant District Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J.

Author: Per Curiam

[ 215 Pa. Super. Page 146]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Montgomery, J.:

The arrest in this case was admittedly unlawful since the warrant was not based on a sufficient complaint.

[ 215 Pa. Super. Page 147]

Therefore, it was properly resisted. I cannot justify a conviction on the assumption that appellant had no knowledge of the fact that the complaint had not been signed by his wife. It is just as reasonable to assume that he knew his wife had not gone to the office of the Justice of the Peace to swear out a warrant.

The appellant was found not guilty of the charge of assault and battery. I would grant his motion in arrest of judgment and discharge ...


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