77 Pa. Super. 388 | Pa. Super. Ct. | 1921
Opinion by
The defendant was convicted in the court below upon an indictment which charged the larceny of a Buick automobile and he appeals from that judgment. The assignments of error in this appeal are many but they do not all require serious consideration.
The first assignment of error and those bearing the numbers from six to fifteen inclusive, allege that the court erred in refusing to withdraw a juror because of certain remarks of the district attorney, in his opening and closing addresses, to which the appellant excepted. The district attorney in his opening address said to the jury that: “The Commonwealth contended that he (the defendant) took the car in question out of the garáge of the owner; that he sold it to Mr. Baron; and we will show you that he not only sold this car, but sold other cars of somewhat the same character.” We are not satisfied that this statement by the district attorney was so clearly prejudicial to the cause of the defendant as to warrant a reversal of the judgment, if no other error appeared in the case, for it did not allege that the sales of the other cars were not entirely lawful. The case must however, go back for a retrial, and the learned district attorney will no doubt eliminate this objectionable statement from his otherwise admirable opening address. The first assignment of error is overruled.
The learned district attorney and the able counsel for the defendant seem to have entirely lost their tempers in the trial of this case and evidenced a disposition to try each other, rather than the issue raised by the pleadings.
The remarks of the district attorney which are the subject of the tenth specification of error were practically a criticism of the action of the' court in sustaining an objection by the defendant to the attempt of the Commonwealth to introduce evidence1 as to transactions of this defendant which had no connection with the charge being tried or the car which was the subject of the larceny. He said to the jury: “Why shouldn’t we have gone further? Why weren’t — why shouldn’t they have been willing and glad to have shown every transaction this man ever had, if he is as honest as they set him up to be? Why are they afraid of those other transactions they objected to? Draw your own conclusion, gentlemen.” The court had properly rejected the evidence and that ought to have been an end of that particular matter, yet the jury were invited to draw their own conclusions from the very fact that the evidence improperly offered had been rejected. Cases may arise in which it is proper for a district attorney to comment on the refusal of a defendant to permit an investigation of his entire conduct, but the circumstances which would warrant such a course were not present in this case. The tenth specification of error is sustained.
The Buick car in question had been stolen from the garage of the owner, in Delaware County, on the night of August láth. The Commonwealth produced evidence tending to establish that the same car was found in possession of the defendant, in Philadelphia, on August 27th, and that he sold it on that day to Mr. Baron. The defendant, called as a witness in his own behalf, testi
The defendant thus asserting that he had had in his possession a car similar to the stolen car prior to the time of the theft, it was entirely proper for the Commonwealth to ask him whether he had not sold such a car to Mr. Baron three weeks before he sold the car in question, that is before the Moore car was stolen. The second, third and fourth specifications of error are overruled.
The court properly rejected the offer of the defendant to testify as to a conversation he had had with one of the witnesses for the Commonwealth, during the trial of the case, the attention of said witness not having been called to the occurrence when he was upon the stand, and the fifth specification is dismissed.
The learned judge of the court below charged the jury as follows: “Now, gentlemen of the jury, I say there can be no disagreement between counsel and the court as, respects the law, because it is perfectly well settled that if the Commonwealth establishes the fact that a piece of personal property, in this case an automobile, was stolen, and within the space of time that elapsed here between the time it was stolen, and the time it was found in the possession of this defendant, if it was found in his possession — I say within that short
The learned judge of the court below, in instructing the jury as to the purpose and relevancy of evidence as to good reputation of the defendant, said: “The purpose of introducing testimony as to reputation...... — testimony of that kind is not admissible — is not introduced as a direct answer to a charge of larceny or murder or robbery or arson or as the case may be. In- other words, when a person bears a good reputation, and his friends and neighbors come before you and so testify, they are not testifying, if I may use this case as an illustration— they are not undertaking to testify to you that Abe Chester did not steal this automobile. That is not the purpose of this kind of testimony. It is offered for the purpose of creating in your minds a doubt as to whether or not a person bearing the excellent reputation that Chester’s friends and neighbors have given him, is likely to have committed an offense of this kind. It is testimony, gentlemen of the jury, that is introduced for the purpose - of raising, as I say, in your minds a doubt as to the man’s guilt, and you must consider that testimony in connection with all the other testimony that you heard in this case.” We are of opinion that this instruction was not in harmony with the principles established by the decisions of the Supreme Court of this State. Evidence of good reputation produced in behalf of the defendant in a trial upon an indictment, is offered not simply to create a doubt as to the defendant’s guilt, but to establish in the minds of the jury the innocence of the defendant. Such evidence does not raise a distinct issue and is not brought into the case as a mere make-weight. It is substantive evidence material to the issue of guilt or innocence. “We have got beyond all doubt upon this subject, and have firmly established the doctrine, that evidence of good character is to be regarded as a substantive fact, like any other tending to establish the de
The car which was the subject of this larceny was stolen in Delaware County and was found in possession of the defendant in the County of Philadelphia. Counsel for the defendant contended at the trial that there was no direct proof that the defendant was present in Delaware County, and there was, therefore, a failure to establish criminal intent in Delaware County, and requested the court to give a binding instruction that the verdict should be not guilty. The force and effect of evidence establishing that property recently stolen is found in the possession of the accused is not affected by the fact that a state or county line intervenes between the place of the theft and the place of finding: Graves v. State, 12 Wis. 591; particularly is this so where the property is such as that involved in this case an automobile, which may be quickly removed from the place in which it was stolen. The evidence in this case was sufficient to warrant a finding by the jury that the defendant had stolen the car, and as the theft had been committed in Delaware County, the case was properly there tried. None of the remaining assignments of error have merit and they are all dismissed.
The judgment is reversed and a venire facias de novo awarded.