Opinion
December 7, 1972.
March 27, 1973.
Criminal Law — Practice — Charge to jury — Failure to specifically except to portion complained of — Pa. R. Crim. P. 1119(b) — Aggravated assault and battery — Assault and battery.
In this case, which raised the question of whether basic and fundamental error was committed by the trial judge in his charge to the jury defining the offense of aggravated assault and battery without likewise defining the lesser includible offense of assault and battery, it was Held that defendant's failure to take a specific exception to this portion of the charge, as required by Pa. R. Crim. P. 1119(b), foreclosed consideration of the issue on appeal.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 466, Oct. T., 1972, from judgment of sentence of Court of Common Pleas of Lancaster County, June T., 1970, No. 1354, in case of Commonwealth of Pennsylvania v. O'Dell Ashford, Jr. Judgment of sentence affirmed.
Indictments charging defendant with aggravated assault and battery and obstructing an officer in execution of process. Before APPEL, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
John T. Grigsby, III, for appellant.
Henry J. Rutherford, District Attorney, for Commonwealth, appellee.
Submitted December 7, 1972.
This appeal raises the question of whether basic and fundamental error was committed by the trial judge in his charge to the jury defining the offense of aggravated assault and battery without likewise defining the lesser includible offense of assault and battery. Defense counsel took no exception to this portion of the charge.
The issue presented herein has been considered recently in two decisions of our Supreme Court. While recognizing that the precise charge was "incorrect", the Supreme Court held that ". . . appellant's failure to take a specific exception to this portion of the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on appeal. Commonwealth v. Jennings, supra at 24, 274 A.2d at 770." Commonwealth v. Sullivan, 450 Pa. 273, 275-76, 299 A.2d 608, 610 (1973).
We, therefore, affirm the judgment of sentence.