10 A.2d 785 | Pa. Super. Ct. | 1939
Argued October 16, 1939. Defendant was arrested in July 1938 on the suspicion that he was guilty of a robbery committed in Lackawanna County about two months before his arrest. He was tried, convicted, and sentenced. The order of the trial court overruling defendant's demurrer to the evidence and the refusal of a new trial are assigned as error. That a robbery was committed is conceded and the issue on the trial of the defendant was one of identity.
The prosecutor Steven Walsh was employed by the McGinley Coal Company as weighmaster working from five in the evening to seven in the morning. He worked alone and was stationed in a small office building on Moosic Road near Old Forge. He testified that about 2:30 in the morning of May 5, 1938 the defendant entered the building, stating that he wanted to use the telephone; that once inside he produced a gun and ordered Walsh to open the door in the partition dividing the office and then robbed him, taking money from his person and a small sum from the cash drawer of a desk in the office.
Two months after the robbery a State police officer brought the defendant to the office of the Coal Company and Walsh testified that on that occasion though he was sure that the defendant was the man, he wanted to see more of him before expressing an opinion. He saw him again at the jail the next morning and after observing him and hearing his voice he positively identified the defendant as the robber. At the trial also, he was positive in his identification.
That this testimony standing alone is sufficient proof *600 of identity, will be conceded. On cross-examination, however, it was developed that at a former trial of this case when asked, "Is there any doubt in your mind that this is the man that held you up?" Walsh replied; "There is a little, yes." and to another similar question; "Well I am not sure of it." There is other testimony to the same effect. On the other hand, elsewhere in his testimony at the first trial he was reasonably positive in his identification, and he accounted for his vacillation by the fact that the night before the case was first tried, he was called over the telephone by an unknown person who suggested that he fail to appear as a witness at the trial and threatened him with injury if he did appear. He explained his failure to identify the defendant unequivocally at the first trial, by saying that he was afraid to tell the truth because of these threats.
Proof of the guilt of the defendant must rest upon the testimony of Walsh alone. Only he identified the defendant and there are no corroborating circumstances outside of his testimony. But in his testimony there is positive identification of defendant which distinguishes this case from the situation presented in Com. v. Sharpe,
There is no merit in the objection of the defendant that the Commonwealth was permitted to reopen its case after resting. "The order of procedure in a trial is largely within the discretion of a trial court" and allowing the Commonwealth to reopen its case under the circumstances here presented was not error: Com. v.Gormley,
The case was submitted to the jury by the trial judge in a fair and adequate charge, with due regard for the rights of the defendant, particularly with reference to the care and caution to be observed by the jury in weighing the evidence as to identity:Com. v. House,
The judgment is affirmed and it is ordered that defendant appear in the court below at such time as he *602 may be there called and that he be by that court committed until he has complied with the sentence imposed or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.