17 Pa. Super. 39 | Pa. Super. Ct. | 1901
Opinion by
All the elements of a burglary and a larceny were proved, by uncontradicted testimony. We do not see how a jury could have had any reasonable doubt upon that question. Therefore in submitting it to the jury (see twelfth assignment), it was perfectly proper for the court tó add that there was no dispute in the evidence concerning it. This amounted to no more than saying that if they believed the evidence the commission, of the crimes was established. Nothing was said to bind the jury or to preclude them from deciding the question for themselves on the evidence. Numerous cases might be cited in which much stronger expressions of opinion upon the facts have been held not cause for reversal. See 2 P. & L. Dig. of Dec. 2668; 4 P. & L. Dig. of Dec. 5989. As the learned judge correctly said, the principal question in the case arising upon the evidence was as to the identity of the perpetrators, and this was submitted in a clear, adequate and impartial manner, of which these defendants have no just reason to complain. Nor was there any error in the rulings upon the admission of evidence. The circumstances alluded to in the several assignments of error were corroborative of the positive testimony of the prosecutor that the defendants were the perpetrators of the crime, and for that purpose were admissible in evidence, although not sufficient either separately or together to convict them.
The ruling complained of in the eleventh assignment of error, which was the overruling of the objections of the defendants’ counsel to remarks made by the commonwealth’s counsel in his closing argument to the jury, was not excepted to at the trial. It may be questioned whether these remarks could be brought on the record by an exception taken after the trial was over. Be that as it may, the assignment must be overruled, because, if for no other reason, the trial judge in subsequently sealing the bill of exceptions refused to certify to the correctness of the statement of the language alleged to have been used by counsel. Therefore, the remarks complained of are not properly on the record.
The disposition of a challenge for such cause as is alleged in the fourth assignment of error depends on the finding of a fact, and in passing upon such finding here we must consider the answers of the juror as a whole, and remember that the ex-
The joinder of a count for burglary with one for larceny, both, offenses arising out of the same transaction, did not deprive the defendants of any legal advantage, and was justified by all the precedents both ancient and modern. The proposition, seriously pressed upon the argument, that if upon such indictment the jury found the defendants guilty of larceny, they could not convict them of burglary, is novel, and needs no discussion. They could be guilty of both offenses, and the jury upon sufficient evidence found that they were guilty of both. The count for burglary was sufficient to sustain the sentence, and it is well settled that if there is one count in the indictment which will sustain the sentence it cannot be reversed: Commonwealth v. Bradley, 16 Pa. Superior Ct. , and cases there cited. This is all that need be said regarding the first and seventeenth assignments; but we are not to be understood as implying that there is any defect in either the second or the third count.
All the assignments of error are overruled and the judgment is affirmed.
