Commonwealth v. Lewandowski

Opinion by Trexler, J.,

The appellant, with two others, was charged with conspiracy to cheat and defraud. One of the defendants, Lewandowski, pleaded nolle contendere. The others were found guilty. The first two questions raised by the appellant may be considered together. They attack the sufficiency of the information and indictment. The indictment charges the crime in the language of the Act of March 31, 1860, section 128, P. L. 413. Section 11 of the Act of March 31, 1860, P. L. 433, provides “Every 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.” The indictment in this case being in the words of the act we see no room for argument left to the defendant. If the defendant desired a more specific charge he should have asked for a bill of particulars: Com. v. McCoy, 10 Pa. Superior Ct. 598 . “Where the object is unlawful the means by which it is accomplished are not material ingredients in the offense and therefore in such a case it is never necessary to set them forth”: Hazen v. Com., 23 Pa. 355 . Moreover the defendant went to trial without raising t'he question of the sufficiency of the indictment. The section of the act last *515 above referred to provides, “Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn and not afterward.” The objection to the information should also have been raised prior to plea entered: Com. v. Hooper, 55 Pa. Superior Ct. 518 .

The other position taken by the appellant is, that “a conviction cannot be sustained upon the testimony of an accomplice, who admitted that he committed perjury before a magistrate as to facts relating to this case, the testimony of the witness being indispensable for a conviction.” We may question the assertion that the testimony was indispensable, but even if it was, it could not be excluded. The Act of March 31, 1860, section 14, P. L. 388, provides that “on conviction” for perjury sentence as therein defined may be imposed and the defendant “shall forever be disqualified from being a witness in any matter in controversy.” When the law speaks of conviction, it means a judgment and not a verdict which in common parlance is called a conviction: Tilghman, C. J., in Smith v. Com., 14 S. & R. 69. When conviction is made the ground of some disability or special penalty a final adjudication by judgment is essential: Com. v. Miller, 6 Pa. Superior Ct. 35 . In the latter case it was held that one found guilty by a verdict of a jury of perjury but not sentenced is a competent witness in the trial of others on the charge of subornation of perjury for which the witness was tried: See Com. v. McDermott, 224 Pa. 363 ; American Bank v. Felder, 59 Pa. Superior Ct. 166 ; Com. v. Auerbach, 71 Pa. Superior Ct. 54 . The point is so well settled, that further comment would be useless.

All the assignments are overruled and the judgment is affirmed and it is ordered that the defendant, appellant, appear in the court below at such time as he may be there called, and that he be by the court committed until he has complied with the sentence or any part of *516 it that had not been performed at the time this appeal was made a supersedeas.