Commonwealth v. Hettig , 46 Pa. Super. 395 ( 1911 )

Per Curiam,

The first two assignments are overruled for the reasons given by Judge Staples, specially presiding, in his opinion discharging the rule for new trial and for arrest of judgment. In addition to the reasons given by him in discussing the question sought to be raised by the third assignment, it should be noticed that the facts upon which the assignment is based do not appear of record, and the rule is that a motion in arrest of judgment must be based on some matter appearing on the face of the record: Delaware Division Canal Co. v. Commonwealth, 60 Pa. 367; Com. v. Duff, 7 Pa. Superior Ct. 415; Com. v. Zayrook, 30 Pa. Superior Ct. 111. Moreover, it is not alleged in the assignment that the testimony of Williams was given under compulsion, either actual or constructive; nor is that testimony set forth in the assignment or anywhere in the record, so as to enable us to judge whether its production before the grand jury was prejudicial to any right of these appellants. It is thus seen that this assignment must be overruled for substantial as well as technical reasons.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Luzerne county with direction that the judgment against each of the appellants, Stewart Hettig, Richard Thomas and James Moore, be fully carried into effect, and to that end it is ordered that each of said appellants forthwith appear in that court, and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.