Commonwealth v. House

Opinion by

Portee, J.,

The testimony embraced by the first specification of error was admitted without an exception having been taken in the court below, and the specification is dismissed. The evidence offered by the defendant, the rejection of which is the subject of the second specification of error, was manifestly founded upon mere hearsay and it was properly excluded. The second specification of error is overruled.

The defendant had in his direct testimony given a minutely detailed statement of his whereabouts and actions between the time of his arrival in Greensburg and the time of the assault with which he was charged. This was manifestly deemed important by his learned counsel — and it would seem correctly so, to draw out the facts. The defendant had testified that during a considerable portion of the time which he spent in Greensburg he had been at the Fisher House, a hotel. There is no necessity for referring to his testimony as to his whereabouts during the earlier hours of the afternoon, but his testimony was very specific as to his whereabouts and acts during the hour immediately prior to and including the time of the assault. He testified that he recalled taking a drink with a young gentleman at the bar of the Fisher House, that that was the last drink which he took there, and that that drink was taken at about five o’clock in the afternoon. The time having been thus fixed, the examination proceeded, after giving details not necessary to set forth, and the defendant testified as follows: “ Q. That was the last drinking you did in Greensburg? A. That was the last drink I had in Greensburg. Q. You came upstairs and stayed in the hotel until about six or after six? A. A few minutes after six. Q. You went downstairs and washed your hands and Mr. Lewis was there? A. Yes, sir.” Then followed certain details as to who helped him put on his overcoat, and then came this question and answer: “Q. You had some liquor in you. Well, when you left the Fisher House — what is your best judgment of the time you left the Fisher House? A. I left the Fisher House about ten minutes after six I should say.” The prosecutrix, Miss Baker, had testified that the assault occurred on Saint Clair avenue, near East Pittsburg street. The store at which the prosecutrix was employed closed at six o’clock, she left the store a little after six o’clock, went along Main street to East Pittsburg street and down that street to Saint Clair avenue, where she separated from her companions, started home along Saint Clair avenue and was shortly afterwards taken hold of and stabbed. The assault must have occurred within a few minutes after six o’clock. If the testimnoy of the defendant, that he was at the Fisher House from five o’clock until ten minutes after six, was true, he might possibly have had time to reach Saint Clair avenue at the time the assault was committed, but his testimony, if the jury believed it, certainly tended to raise a doubt whether he had time after leaving the Fisher House to go to Saint Clair avenue and there quietly wait until the prosecutrix arrived. This being so, it was not reversible error, for the purpose of discrediting and contradicting his testimony, to permit the commonwealth to prove that the defendant had not been at the Fisher House during the time that he had stated, and that he had at twenty-five minutes before six o’clock, been on East Pittsburg street within a short distance of Saint Clair avenue and had run in the direction of that street, although the introduction of that evidence might incidentally show that he had assaulted another female. The third specification of error is overruled.

The fourth assignment, in which the charge as a whole is brought up for review, avers that it did not adequately present to the jury the law and the evidence upon the question of identity, that it failed to refer to the fact that another man was seen to flee from the place of the assault immediately after the occurrence, and that it limited the question of reasonable doubt to that which grew out of the evidence of good reputation alone. With reference to the first complaint, we deem it only necessary to quote the language used by the learned judge of the court below in his charge: “But where the emphasis of this case does rest is upon the question of whether the defendant in this case has been the guilty agent in committing these assaults. It is not enough that some one has done this. It must be this defendant in order that he be found guilty, because the inquiry that we are prosecuting here is prosecuted for the purpose of ascertaining whether or not we have before us the man upon whom the heavy hand of legal punishment should be laid for his discipline and for the example of others. That of course makes it essential that it appear from a consideration of the whole case that this was the man who perpetrated those offenses on that day.” This was certainly a clear and full presentation of the controlling issue of fact in the case, the identity of the defendant with the perpetrator of the offense. As to the complaint of the failure of the court to refer to a certain detail of the evidence, it is only necessary to say that the jury could not have failed to understand the relevancy of the evidence referred to. The learned judge did not in his charge pretend to review the evidence in detail, and said to the jury that he was referring to it “only in vague outline.” It has not been suggested that the reference to the facts was partial or one-sided, and a careful study of it has convinced us that it was absolutely fair. The learned judge after referring to many of the points in the evidence favorable to the defendant said: “In addition to these circumstances and many others that will occur to you, he calls to his aid the testimony of persons who have known him before.” And again, referring to the questions of fact: “You are the court of final appeal. The judge of this court has not anything to do with the determination of that question. The law trusts you to do that which is just to every citizen of the commonwealth and just to the defendant, who is as much under the protection of the laws of the commonwealth as any one else.” It is not inappropriate in this connection to quote the remarks of the Supreme Court in Commonwealth v. Kaiser, 184 Pa. 493: “It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that counsel would consider adequate. In doing so he would run the risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on a particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing.” The charge delivered by the learned judge in the case at bar fully meets this test. The complaint that the charge limited the question of reasonable doubt to that which grew out of the evidence of good reputation alone is not well founded. The court said, upon the general question: “This defendant when he came into court here, and you were sworn to be his triers, was an innocent man. Every man is so presumed until the proofs in the case remove that presumption,” and again, in the concluding portion of the charge: “There is a substantial thing to be dealt with here and that substantial thing is the question of the defendant’s guilty agency in the perpetration of this offense. If he is not guilty you should say so. The commonwealth don’t ask for conviction about which there is a reasonable doubt. . . . While we keep this in mind we are not to act rashly from any impulse of the heart that our own minds do not follow and thus conclude that this is the guilty man, unless the evidence in the case justifies that conclusion, leads you to that conclusion beyond a reasonable doubt.” The fourth specification of error is overruled.

The record having been remitted by this court to the court below for correction and having been returned properly certified, the fifth specification of error has no foundation in the record as it now stands.

The sixth specification assigns for error the following language of the court, used when charging the jury as to the effect of evidence of good reputation, — “On the other hand, — still speaking about the evidence with relation to reputation, if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has had a good reputation is not a defense.” Had this been all that the learned judge said upon the subject it might have been fairly subject to the criticism, by the Supreme Court, of the charge in Commonwealth v. Cate, 220 Pa. 138, that: “It would be confusing to jurors and might lead them to disregard evidence of good character altogether, if from all the other evidence in the case they reached the conclusion that the defendant was guilty. This would clearly be error. ” The specification of error in the present case, however, wrests a single sentence of the charge from the context, while the charge as a whole is clear and unambiguous. A complete answer to the construction attempted to be put upon this single sentence, by the specification of error, is to be found in the immediate context. The learned judge, having in the opening of his charge stated as strongly as could be desired the legal presumption of the defendant’s innocence until that presumption was overcome by proofs, used the following language when instructing the jury as to the effect of testimony as to the good character of the defendant: “For that very reason it is then when a man is so attacked, and he has hitherto deported himself as to give his neighbors a good opinion of him in that respect, that he may call on that good opinion and bring it in here as part of his defense. Although it is different in character from the other testimony in the case, it is not to be regarded as a mere makeweight to be thrown carelessly into a case, but is a part of the testimony that is to be considered in the case, because, as we shall presently tell you, it is the business of the commonwealth to make out a case beyond a reasonable doubt, and it may be in some cases, that where a man has previously borne a good reputation, and that is shown to the jury, that the existence of that good reputation may of itself generate a reasonable doubt in your minds as to whether he was the guilty man or not. That is one of the items of evidence in the case and it is to be considered along with the other evidence in the case.” The charge then proceeds to define a reasonable doubt, and does so in a manner of which even this appellant does not complain. Having thus satisfactorily explained the nature of a reasonable doubt, the court recurred to the effect of such a doubt resulting from the introduction of evidence as to good character, and in this part of the charge occurs the sentence assigned for error. The whole of this part of the charge is in the following language: “If there is such a doubt that prevents your arriving at' a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand, — still speaking about this evidence with relation to reputation, — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense, that is the material that you make use of in ascertaining whether or not he is guilty and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple.” These instructions certainly made it clear to the jury that they were to consider good character, if established, as a substantive fact, which might of itself give rise to a reasonable doubt of the guilt of the defendant and entitle him to an acquittal; that they were not to consider the testimony of good character as a mere makeweight, but were to weigh it with all the other evidence in the case in determining the question whether or not the defendant had been proved guilty beyond a reasonable doubt. That it, testimony as to good character, was the material that they were to make use of in ascertaining whether or not he was guilty, and that they must look at that and all the other evidence in the case in passing upon the question. The charge upon this branch of the case was a correct statement of the law: Commonwealth v. Eckerd, 174 Pa. 137; Commonwealth v. Harmon, 199 Pa. 521; Commonwealth v. Beingo, 217 Pa. 60; Commonwealth v. Dingman, 26 Pa. Superior Ct. 615; Commonwealth v. Miller, 31 Pa. Superior Ct. 309. The sixth specification of error is overruled.

The judgment is affirmed, and it is ordered that the defendant appear in the court below and that he be by that court committed to serve such part of his sentence as had not been performed at the time this appeal was made a supersedeas.