61 Pa. Super. 423 | Pa. Super. Ct. | 1915
Opinion by
The defendant was twice tried. His first trial resulted in a conviction of murder in the first degree. This judgment was reversed by the Supreme Court in an opinion by Mr. Justice Stewart, Com. v. Exler, 243 Pa. 155. The second trial (and here appealed) was on the charge of rape under the Act of May 19, 1887, P. L. 128, which reads as follows: “If any person......who being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, such person shall be adjudged guilty of felonious rape......” Appellant contends that if a verdict for statutory rape could have been returned upon the indict
To carnally know and abuse any woman child under the Act of 1887, there must be penetration or an attempt to have intercourse. There must be at least contact of the sexual organs: Wharton’s Criminal Law, 11th Ed., Vol. I, Section 684, p. 855; 33 Cyc. 1421. In this case the proof of penetration, the necessary fact to show that the crime was committed, and that the defendant was
The eighth and ninth assignments complain of the manner in which the jury was selected. It arose in this manner: after the first juror was called, sworn on his voir dire, and examined, the district attorney objected to this practice as irregular and requested that the box be filled before any challenges were assigned. The trial court sustained the district attorney’s contention, whereupon the remaining nineteen jurors were called and examined on their voir dire. Challenges were then made under the Act of 1901. The trial court, in its opinion overruling the motion for a new trial, held that the practice of examining jurors on their voir dire in homicide, was irregular in other criminal cases; that the regular practice in these cases was to call all the jurors into the box, examine them on their voir dire, and challenge therefrom, allowing challenges for cause where it could be shown to exist, and if not, the challenges to be regulated by the Act of 1901. This, we take it, is the customary practice throughout the Commonwealth. It is the practice in Allegheny County. Trial courts should be permitted to regulate this practice. Where this is done, or a method of procedure is established by long continued custom, and these regulations do not offend against the Act of 1901, and there is no abuse of discretion or impairment of some right of the defendant, such rules or methods will not be disturbed by this court. It
The objection to juror Willis is not well founded. It does not come within the rule laid down in Com. v. House, 3 Pa. Superior Ct. 304, and the ruling of the trial court on the objection made was in accordance with Com. v. Crossmire, 156 Pa. 304 (10th assignment).
We agree with the trial court in its holding that the petition for the return of personal property did not set forth sufficient facts to bring it within the rule of Weeks v. U. S., 232 U. S. 383 (11th assignment).
The court withdrew from the jury’s consideration the testimony of Beech as to the sacks of bran sold, and they were sufficiently instructed as to this testimony (12th and 13th assignments).
Assignments fourteen to nineteen, inclusive, complain of the charge of the court, and the answers to points. They are without merit; as is also the twentieth assignment, relating to the offer of the undergarments of the deceased, identified by the mother. For the purpose of identification, these garments were competent.
The objections to the remarks of the district attorney cannot fairly be the subject of error. He was the Commonwealth’s officer, charged with an important duty. It included, a presentation of the case as its circumstances demanded. We need not dwell on this further. The language used was a fair statement, considering the nature of the offense charged and the evidence presented (21st, 22d, and 23d assignments).
Much stress is laid on the testimony of Mary Hricz,
The twenty-seventh assignment is without merit. We have reviewed the evidence with much care and are fully satisfied that the jury was warranted in reaching the conclusion that a statutory rape had been committed on this young girl, and. that this defendant was the author of the crime.
All the assignments of error are overruled, the judgment is affirmed.