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COMMONWEALTH v. MOSES (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
MOSES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lawrence County, Sept. T., 1968, No. 94, in case of Commonwealth of Pennsylvania v. George Moses.

COUNSEL

Carmen F. Lamancusa, Assistant Public Defender, for appellant.

Kenneth E. Fox, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Cercone, J. Wright, P. J., joins in this concurring opinion. Dissenting Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 216 Pa. Super. Page 281]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Concurring Opinion by Cercone, J.:

Appellant was indicted for a violation of the Pennsylvania Liquor Code, found guilty after trial by jury, and sentenced by the court as a second offender though

[ 216 Pa. Super. Page 282]

    the Indictment made no reference to any prior offense. The issue presented to this court was whether or not the sentence as a second offender was improper in view of the Commonwealth's failure to state the prior offense in the Indictment, appellant claiming that Section 494 of the Pennsylvania Liquor Code (Act of April 12, 1951, P. L. 90, 47 P.S. 4-494) made such statement imperative. A reading of that section, however, clearly reveals it pertains to penalty only and does not make the prior offense a part of the substantive offense presently charged:

"Any person who shall violate any of the provisions of this article, except as otherwise specifically provided, shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than $100.00 nor more than $500.00, and on failure to pay such a fine, to imprisonment for not less than one month, nor more than three months, and for any subsequent offense, shall be sentenced to pay a fine not less than $300.00 ...


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