268 Pa. 25 | Pa. | 1920
Opinion by
On January 27, 1919, between 12 and 12:30 a. m., Bronislaw Myskowski was found dead in his bedroom, his throat having been cut with a sharp instrument. Defendant, who lived at a boarding house about six hundred feet distant, was placed under arrest early the
The fourth and fifth assignments complain that the trial judge erred in failing to instruct the jury on the meaning of the word “alibi” and as to the burden of proof relating to the defense. Defendant testified he spent the better part of the evening at home and shortly before 12 o’clock went outside for a few minutes and then to bed and slept until awakened by the officers who arrested him. Before retiring he requested his boarding mistress to call him at six o’clock. His statement of the time he retired is corroborated by the woman, and the fact that he was asleep in his bed at the time of his arrest was testified to by the officers. Defendant’s boarding house keeper further testified she usually heard the least noise at night and did not hear defendant leave the house after going to his room. It is conceded that defendant did not remain outside the door of his boarding house more than two or three minutes immediately before retiring. In commenting on the testimony offered to establish an alibi, the trial judge did not define to the jury the meaning of the term, nor did he in fact use the word in his instructions, but, in referring to various matters of defense, said: “There are the witnesses who testified to the occurrences at Plorio’s house on Sunday afternoon. This does not directly bear upon the crime, but it is only given as part of defendant’s history, accounting for his whereabouts during the entire day......there is the testimony of the two Yanchulas and of Tony himself, as to the time he retired, as to the last they knew about him on Sunday evening, how he remained up until about
The jurors were thus, in effect, instructed that if would be their duty to acquit defendant if his testimony as to Ms whereabouts was sufficient to create in their minds a reasonable doubt of his having committed the act. This instruction gave him the benefit of all testimony tending to establish an alibi. The mere fact that the court did not specifically instruct that the defense was an alibi and define the meaning of the term to them is not reversible error under the circumstances. The jury must certainly have understood that if they believed the testimony of defendant that he went to bed before twelve o’clock and remained there until near morning, he could not have committed a crime between those hours at another place. The actual affirmative proof of an alibi for the entire time during which the crime was committed, from 12 to 12:30 a. m., rested almost wholly upon the testimony of defendant and upon his credibility. The reference to the matter of defense, though brief, gave defendant every benefit to which he was legally entitled and permitted the evidence of an alibi to warrant an acquittal if it raised in the minds of the jurors a reasonable doubt as to defendant’s guilt. This is substantially the rule approved in Briceland v. Commonwealth, 74 Pa. 463, 470.
The eleventh and twenty-first assignments complain of the insufficiency of the charge in defining reasonable doubt. In Commonwealth v. Andrews, 234 Pa. 597, this court stated (page 608) it to be the duty of the trial judge in every murder trial to define to the jury the
The twelfth assignment is to that portion of the charge in which the trial judge stated — “our common experience is that men go along for a long while with fine reputations, so that they can always prove a good character in court, and yet do commit crimes.” While this clause, standing alone, might be properly subjected to the criticism that it minimized the importance of character evidence, yet, when read in view of what immediately preceded and followed, the entire instruction as to the weight to be given such evidence was not improper. The complete statement relating to this assignment was that — “Evidence of character is substantial
The twenty-eighth assignment is to the refusal of the trial judge to sustain defendant’s challenge for cause of one of the jurors. The juror testified on examination as follows: “Q. Have you any prejudice against Italians as a class? A. Well, I think — yes. By the Court: Q. Is your prejudice against Italians such as would prevent you from giving to him a fair trial, as a man? A. Well, as a race they are too much for — murder. Q. You should not give any opinion concerning a race, you are simply to answer the question. Couldn’t you give this man a fair trial, as a man? A. I could give him a fair trial as a man, yes. Q. Without being influenced by any feeling that you may have against Italians as a class? A. Yes. Q. The same fair trial as you would give any other man in this case, if you happened to be a juror? A. Yes. Q. You could do that, and you would? A. I
The thirteenth assignment is to the action of the trial judge in permitting the jurors to take out with them certain microphotographs of exhibits formally offered in evidence, though the original photographs were not. Both, however, had been used and referred to by court and counsel in the course of the trial. Had the photographs been offered in evidence they would, no doubt, have been admitted, in which case the court could properly have permitted them to be taken out by the jury. No objection was made to them at the time, nor until four months after the trial, when defendant’s counsel, from an examination of the record, discovered the exhibits had, in fact, been used by the jury in their deliberation. Under the circumstances, and in view of the fact that the photographs in no way altered the original object duly admitted in evidence and in possession of the jury, the error was not harmful to defendant and the oversight in not formally offering the photographs in evidence is not sufficient ground for reversal.
The twenty-third assignment is to the action of the court in sustaining the Commonwealth’s objection to an offer made by defendant to show the relations of deceased’s wife with men other than defendant. Such evidence would have introduced entirely irrelevant matters having no connection with the issue then being tried,
The twenty-fifth assignment complains of the admission of evidence of statements made by deceased’s wife to defendant while under arrest and after having been taken to the town hall. Defendant asked, “What is the matter, Helen?” and she replied, “You know what you say on Friday, you fix him, you tell him you fix, and you fixed,” and that to this statement defendant made no reply. The testimony was properly received and is within the rule that where one is charged with a crime and having opportunity to speak remains silent and makes no denial of the accusation, his silence may be considered by the jury as a circumstance in determining his guilt: Com. v. Zorambo, 205 Pa. 109; Com. v. Aston, 227 Pa. 112. The contention is, however, that defendant being an Italian and deceased’s wife Polish, neither understanding the language of the other, and comparatively little English, the court should have instructed the jury that if they found defendant did not understand what was said they should disregard the incident entirely. While silence under circumstances indicating a person failed to understand what was said could not be used as an admission (Catanzaro v. Penna. R. R., 230 Pa. 305), defendant and deceased’s wife both spoke English at the time of the arrest and had sustained intimate relations for a considerable time, consequently defendant evidently understood her answer to his question.
The twentieth assignment complains that the court in the charge prominently presented the theory and main features of the prosecution and ignored those of defendant. The trial lasted a week and the testimony covers seven hundred and fifty printed pages, while the charge of the court covers over thirty pages. At the end of the charge the trial judge, after referring to matters offered in defense, said “all these circumstances are still fresh in your mind and it would be idle for me to detail them at length,” following this language by asking counsel
We deem it unnecessary to consider separately the remaining assignments and merely state an examination of them shows they are without merit.
The judgment is affirmed and the record remitted to the court below for the purpose of execution.