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COMMONWEALTH v. ASHFORD (03/27/73)

decided: March 27, 1973.

COMMONWEALTH
v.
ASHFORD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, June T., 1970, No. 1354, in case of Commonwealth of Pennsylvania v. O'Dell Ashford, Jr.

COUNSEL

John T. Grigsby, III, for appellant.

Henry J. Rutherford, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ.

Author: Per Curiam

[ 223 Pa. Super. Page 414]

This appeal raises the question of whether basic and fundamental error was committed by the trial judge in his charge to the jury defining the offense of aggravated assault and battery without likewise defining the lesser includible offense of assault and battery. Defense counsel took no exception to this portion of the charge.

The issue presented herein has been considered recently in two decisions of our Supreme Court. While recognizing that the precise charge was "incorrect", the Supreme Court held that ". . . appellant's failure to

[ 223 Pa. Super. Page 415]

    take a specific exception to this portion of the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on appeal. Commonwealth v. Jennings, supra at 24, 274 A.2d at 770." Commonwealth v. Sullivan, 450 Pa. 273, 275-76, 299 A.2d 608, 610 (1973).

We, therefore, affirm the judgment of sentence.

Disposition

Judgment of sentence ...


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