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COMMONWEALTH v. LEE (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
LEE, APPELLANT



Appeal from order of Superior Court, April T., 1970, No. 246, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1970, No. 27, in case of Commonwealth of Pennsylvania v. Raymond Lee.

COUNSEL

Carl Blanchfield, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice O'Brien join in this concurring opinion.

Author: Manderino

[ 454 Pa. Page 527]

Appellant, Raymond Lee, was found guilty in a non-jury trial of two counts contained in a five-count indictment. One of those counts is not involved in this appeal. As to the other count, which was count one of the indictment, appellant claims that the trial court erred in sentencing the appellant under two separate statutes -- the Armed Robbery statute, Act of June 24, 1939, P. L. 872, § 705, 18 P.S. § 4705, and the Carrying Deadly Weapons statute, Act of February 25, 1972, P. L. 79, No. 27, § 1, amending Act of July 30, 1968, No. 227, § 1, 18 P.S. § 4416. The trial court imposed a sentence of three and a half to seven years for the crime of Armed Robbery and another sentence of five to ten years for the crime of Carrying Deadly Weapons (frequently called the "Gun Law"). The sentences were to run consecutively. Post-trial motions were denied and the Superior Court affirmed the judgments of sentence

[ 454 Pa. Page 528]

    in a per curiam order. Commonwealth v. Lee, 220 Pa. Superior Ct. 773, 286 A.2d 410 (1972). An appeal to this Court was then granted.

The appellant contends that the imposition of the sentence for Carrying Deadly Weapons was improper since the grand jury did not return an indictment for that offense. We agree and vacate that sentence.

One cannot be convicted or sentenced for an indictable offense unless the grand jury has approved an indictment covering that offense. Commonwealth v. Komatowski, 341 Pa. 445, 32 A.2d 905 (1943). An indictment by the grand jury charging a statutory offense must do so in the language of the statute. Historically, this requirement was strictly enforced to the extent that the exact language of a statute had to appear in an indictment. The slightest deviation from the exact language of the statute rendered the indictment fatally defective as to that statutory offense. Hamilton v. Commonwealth, 3 Pen. & W. 142 (Pa. 1831); Respublica v. Tryer, 3 Yeates 451 (Pa. 1802). Because the exactness requirement was strictly enforced, the legislature in 1860 mitigated the need for exactness by providing that "[e]very indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of the assembly prohibiting the crime, and prescribing the punishment, if any such there be . . . ." Act of March 31, 1860, P. L. 427, § 11, 19 P.S. § 261 (emphasis added).

The 1860 law did not change the requirement that the indictment contain the language of the statute. It only provided that the language of the indictment be substantially rather than exactly in the language of the statute. The substantial language of the statute must still be contained in the indictment however; otherwise, we could not know what statutory offense the grand jury intended to charge. Without such knowledge, a citizen might be tried for an indictable offense that the

[ 454 Pa. Page 529]

    grand jury did not intend to charge which is prohibited by the Pennsylvania ...


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