99 Pa. Super. 412 | Pa. Super. Ct. | 1930
Argued April 14, 1930. Appellant was acquitted of rape, and convicted of fornication and bastardy. While all of the complaints made here have been considered, only one merits reference. At the conclusion of the evidence and preceding *414 the charge of the court, the printed record shows the following:
"Mr. Smith [attorney for appellant]: We object to the remark of the district attorney in his argument to the jury, in which he stated that the defendant had not denied having intercourse with the prosecutrix, Rosemary Riffle, for the reason the district attorney may recall defendant's first answer was to that very question, `she is a liar.' We ask that a juror be withdrawn and the case continued. By the court: We overrule the motion, and note an exception to the defendant.
"By Mr. Smith: We object to the remarks of the district attorney in his argument to the jury in saying that the defendant might be called a skunk, spelling it out. We believe this is highly prejudicial to this defendant, and, therefore, move that a juror be withdrawn and the case continued on account of improper remarks of the district attorney. By the court: The motion is overruled, and an exception noted to the defendant." The refusal to grant those motions is assigned for error in various assignments.
In charging the jury, the learned trial judge said: "We may say to you further any words or arguments of counsel made in the heat of argument, or any names mentioned that might appear to reflect on the parties, you will disregard — for example, the fact the district attorney referred to a certain word; we believe the word `skunk.' You should not allow that, of course, under any circumstances to govern you in arriving at your conclusion. Counsel on either side in the heat of argument may say something, which if they had time to consider they would not say. It would hardly mean anything to an intelligent jury, and we direct you not to consider that term in any sense in arriving at your verdict."
Standing alone, the facts stated in the motions give an imperfect idea of what occurred, and certainly *415 furnish no ground for reversal within the well known rule.
If, as asserted, the district attorney said that defendant did not deny intercourse with the prosecutrix, the misstatement, if it may be so considered, was immediately corrected by appellant's counsel so that the jurors were not misled. The record shows that defendant was asked this question by his counsel: "The prosecutrix testified you had intercourse with her. What do you say about it?" He answered: "she is a liar." If he had squarely denied it, by saying that he had not had intercourse with her, instead of giving the evasive and irresponsive answer, that "she is a liar," there would have been less ground for the district attorney's assertion that defendant had not denied it; but, if we consider the statement as wholly unwarranted by the evidence, we can still not sustain the assignment of error for reasons to be stated.
The other complaint — that the district attorney said "that defendant might be called a skunk, spelling it out," — is quite unintelligible without the context in which the expression was used; accordingly, at the oral argument in this court, counsel explained that during the argument to the jury, counsel for the appellant pictured for its guidance a sign on which, he said, he would place the word "doubt," and that, in replying to that argument, the district attorney stated that a more appropriate word for the sign would be "skunk." It will thus be observed that the record, as printed, gives a poor idea of the situation that the learned trial judge passed on. In Com. v. Shields,
These complaints call for the application of the rule that an appellate court will not reverse an order made in the exercise of judicial discretion unless abuse of power is shown. The trial judge is in control of the trial, is better informed of what takes place in his presence, and therefore better qualified to pass on the probable effect on the jury of ill-advised argument of counsel than an appellate court; his action is subject to review, but will not be reversed unless (as stated in Com. v. Meyers,
In the light of the consideration given to the matter in the court below as shown by the record, this is not a case in which the rule requires us to reach a different conclusion.
Judgment affirmed.