Opinion
October 6, 1960.
November 15, 1960.
Argued October 6, 1960. Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
Appeals, Nos. 10, 11, and 12, March T., 1961, from judgments of Superior Court, April T., 1960, Nos. 98, 104, and 106, affirming judgments of Court of Quarter Sessions of Allegheny County, March T., 1959, No. 417, and June T., 1959, Nos. 128, 129, and 429, in case of Commonwealth of Pennsylvania v. Sam Grosso et al. Judgments affirmed; reargument refused December 2, 1960.
Same case in Superior Court: 192 Pa. Super. 513.
Indictments charging defendants with conspiracy and being concerned in the managing, conducting and carrying on of a lottery. Before LEWIS, J.
Verdicts of guilty and judgments of sentence entered thereon. Defendants appealed to the Superior Court which affirmed judgments, opinion by ERVIN, J; GUNTHER, J., dissenting as to Anthony Bruno. Appeal to Supreme Court allowed.
Samuel Dash, with him Thomas A. Livingston, and Henry Mustin, for appellants.
William Claney Smith, Assistant District Attorney, with him George H. Ross, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.
The judgments of sentence are affirmed on the opinion of Judge ERVIN for the Superior Court, 192 Pa. Super. 513, 162 A.2d 421.
I cannot concur in a judgment which so flagrantly violates every concept of justice and fair play which I feel is part of our administration of criminal law. While I agree with the majority that the conviction of the appellant Grosso be affirmed, I must dissent from the rejection of the contentions of appellant Bruno.
By this judgment of affirmance the majority approves procedures which permit the trial of defendant "A" together with defendant "B" on charges for which "A" has not been indicted with "B", and which on the face of "B's" indictment are not related as to facts, time and place to the charges for which "A" has been indicted. As long ago as Commonwealth v. Schmidheiser, 111 Pa. Super. 283, 169 A. 572 (1933), the Superior Court reversed a conviction because " 'The defendants were charged in separate indictments and they could not, against their protests, have been tried at the same time.' " This was proper because in Schmidheiser, as in the instant case, there was nothing on the face of the indictments which showed any relationship between the two offenses. The Superior Court affirmed its Schmidheiser position in Commonwealth v. Dauphinee, 121 Pa. Super. 565, 183 A. 807 (1936), but properly did not apply Schmidheiser to the situations in Commonwealth v. Dixon, 179 Pa. Super. 1, 115 A.2d 811 (1955); Commonwealth v. Smith, 186 Pa. Super. 89, 140 A.2d 347 (1958), and Commonwealth v. Evans, 190 Pa. Super. 179, 154 A.2d 57 (1959). In Dixon, Smith and in Evans, consolidation of indictments relating to different transactions and different defendants was permitted because there existed in each of these cases one general conspiracy charge linking every one of the defendants tried together. Since a general conspiracy charge was absent in Schmidheiser, absent in Dauphinee and absent in the instant case, the conviction of Bruno should have been reversed. Each case relied upon by the Superior Court to justify its affirmance of Bruno's conviction is readily distinguishable from the rule of Schmidheiser and Dauphinee.
In Commonwealth v. Russo, 177 Pa. Super. 470, 111 A.2d 359 (1955), the defendants were tried separately. The Superior Court's discussion in that case concerning consolidation had to do with the consolidation of indictments against the same defendant. Here we have separate indictments charging different defendants with separate offenses. Commonwealth v. Lehman, 166 Pa. Super. 181, 70 A.2d 404 (1950), also deals with the consolidation of separate indictments against the same defendant. Commonwealth v. Kaysier, 166 Pa. Super. 369, 71 A.2d 846 (1950), again deals with separate indictments against the same defendant. Commonwealth v. Schultz, 168 Pa. Super. 435, 79 A.2d 109 (1951), deals with separate indictments against two defendants for the same burglaries. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), deals with separate indictments against three defendants for the same robbery. Commonwealth v. Zwierzelewski, 177 Pa. Super. 141, 110 A.2d 757 (1955), deals with fifteen separate indictments against fifteen defendants for the same prison riot. Commonwealth v. Morrison, 180 Pa. Super. 133, 118 A.2d 263 (1955), deals with two separate indictments against two defendants for the same offense of interfering with a witness. Commonwealth v. Giambrone, 183 Pa. Super. 283, 130 A.2d 254 (1957), deals with the consolidation of trials of three defendants seized in the same gambling raid and indicted for the same offense. Commonwealth v. Nestor, 183 Pa. Super. 350, 132 A.2d 369 (1957), deals with two separate indictments against the same defendant. In Commonwealth v. Krzesniak, 180 Pa. Super. 560, 119 A.2d 617 (1956), there were nine bills of indictment, eight charging arson and one charge for setting a junked car afire. The defendant was named on all of these bills of indictment.
Since I cannot reconcile the action taken by the Superior Court and the majority herein with the established safeguards which have surrounded our administration of the criminal law, I dissent.
Mr. Justice MUSMANNO and Mr. Justice BOK join in this dissenting opinion.