
    Commonwealth v. Lewandowski et al., Appellants.
    
      Criminal law — Perjury—Witnesses — Alleged disqualification — Conviction — Judgment—Act of March, SI, 1860, section II, P. L. S88.
    
    The fact that a witness admitted that he committed perjury before a magistrate, as to facts relating to the case, does not disqualify him from being a witness in the quarter sessions. Where conviction is made the ground of some disability or special penalty a final adjudication by judgment is essential; and when the law speaks of conviction it means a judgment, and not a verdict, which in common parlance is called a conviction.
    
      Criminal procedure — Indictment—Sufficiency—Waiver.
    Where a defendant goes to trial without raising the question of the sufficiency of the indictment he cannot, after conviction, object to the information on the ground that it failed to properly specify the crime.
    Argued April 26, 1920.
    Appeal, No. 106, April T., 1920, by defendants, from judgment of Q. S. Allegheny County, May Sessions, 1918, No. 285, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Anton Lewandowski, Peter Wicinski and Prank Breczinski.
    Before Porter, Henderson, Head, Trexler, Keller and Linn, JJ.
    Affirmed.
    Indictment for conspiracy to cheat and defraud. Before Swearingen, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.
    
      At the trial the plaintiff presented the following points:
    1. That under the pleadings and the law the verdict of the jury should be “not guilty.”
    2. That the indictment in this case is not based upon sufficient facts derived from the information.
    3. That the information contains a statement of no overt acts or circumstances forming a conspiracy, upon which an indictment could be framed or a conviction had.
    4. The indictment charging nakedly a conspiracy to defraud is insufficient in law to put the defendants on trial, or justify a conviction.
    5. The indictment charging nakedly a conspiracy to defraud is insufficient in charge and circumstances as well as law, to find a verdict of guilty as to the defendants on trial.
    6. The principal witness of the Commonwealth, Anthony Levendowsky, being admittedly an accomplice, a verdict should not be based upon his evidence unless corroborated, and particularly in this case because of the fact that he admitted that he had committed perjury at a previous hearing involving substantially the same facts as are in this case, being that he swore that his name was Levendowsky and now swears that it was not and is not Levendowsky.
    7. That the verdict should be for the defendants for the reason that the principal witness, not only being, an accomplice and an admitted perjurer, but testified against his codefendants under a promise either expressed or implied and confirmed by the circumstances that he was to enjoy immunity, partial or complete,
    8. The court is requested to charge the jury that the testimony of an accomplice must be scanned carefully and his motives considered and that he is testifying with the hope, if not belief, that he will receive some immunity or consideration for testifying against Ms codefendants.
    The court refused all of the points as submitted.
    
      Errors assigned were various rulings on evidence, answers to points as above quoted and refusal of motions in arrest of judgment and for a new trial.
    
      W. J. Brennen, and with him L. W. Barach, for appellant.
    
      W. E. Walsh, Assistant District Attorney, and with him Harry H. Rowand, District Attorney, for appellee.
    July 14, 1920:
   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 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 it that had not been performed at the time this appeal was made a supersedeas.  