DocketNumber: Appeals 151, 152, 153 and 154
Citation Numbers: 92 Pa. Super. 48, 1927 Pa. Super. LEXIS 259
Judges: Porter, Henderson, Trexler, Keller, Linn, Gawthrop, Cunningham
Filed Date: 10/4/1927
Status: Precedential
Modified Date: 10/19/2024
Argued October 4, 1927. The appellant and Harry Cohen were charged in three indictments with having in their possession and *Page 50 under their control quantities of narcotic drugs, to wit, morphine and cocaine, and in a fourth indictment with conspiracy to sell, deliver, distribute and traffic in said drugs. The appellant was arrested in February, 1927; the indictments were returned March 10, 1927, and the defendants were called for trial five days later. The cases were tried together on all of the indictments before the same jury. The defendant Cohen pleaded guilty. The appellant was not represented by counsel at the trial. A verdict of guilty was returned against him on each of the indictments on March 16, 1927. On March 29, a new trial was applied for nunc pro tunc, which was refused. The appellant now complains (1) That the court erred in requiring the appellant to go to trial in the absence of counsel; (2) In submitting the four cases to one jury and (3) In refusing a new trial on the ground that the defendant was enticed into the commission of the crimes by detectives.
The evidence taken at the trial is not before us but an agreed statement of facts as disclosed by the record and evidence, signed by the assistant district attorney who tried the case, and the defendant's counsel, has been filed in the case, from which it appears that before the trial commenced it was announced to the court that the appellant was represented by Max Aron, Esq., as counsel, who was at the time not present in court but was at Harrisburg in attendance at a session of the State Senate of which he was a member. No appearance had been entered by Mr. Aron on the indictments, nor had a retainer slip been filed, in accordance with the practice in the court. There was no record evidence, therefore, of the engagement of the counsel referred to, nor does it appear that any communication was had between him and the appellant, although a period of several weeks elapsed between the arrest and the trial; nor was any information given to the district attorney's office or to the court that counsel had been engaged as alleged. Witnesses were present from *Page 51
a distance to testify for the Commonwealth and the cases were regularly before the court for trial. The appellant contends that his right to be heard by counsel secured by Article I of section 9 of the State Constitution required that he should have time to procure the presence of the counsel said to have been engaged and the case of Com. v. Jester,
There was no error in submitting the four indictments to one jury. The offenses were misdemeanors of the same character committed in succession by the same defendants in the same circumstances, in the presence of the same parties. All of the transactions could have been introduced in the first indictment tried to show knowledge and intent and no advantage should have resulted to the defendant by trials before separate juries.
The contention that a new trial should have been granted because the appellant was enticed into the commission of the crimes charged is without merit. Nothing on the record gives support to it. There is no denial that the appellant introduced Cohen to the Commonwealth's witnesses and that he was present when several sales of drugs took place. He was active in all the transactions, according to the agreed state of facts, and, even if his participation in the transactions took place at the instigation of the detectives, that would be no defense to the indictments. The subject was recently discussed at length in the case of Com. v. Earl et al.,