Commonwealth v. Green
82 A. 250
Pa.
1912
Check Treatment

Opinion by

Mr. Justice Moschzisker,

The defendant was convicted of murder of the first degree upon purely circumstantial evidence. At about seven o’clock on the morning of July 30, 1910, the body of Catherine Clohessy was found with some marks upon the throat, and the coroner’s physician testified that the deceased came to her death through asphyxia caused by external violence. She had left her place of business in the vicinity of the spot where her remains were subsequently located about nine o’clock on the previous evening, and she then had in her possession a hand bag, a pocket book and some religious emblems. On that evening the accused was paying a visit in the neighborhood and left for his home at about nine o’clock, passing the place in question. A written statement given by the defendant to the police after his arrest, in which he described his movements at the time of the alleged murder and stated that he had found the pocket book and the religious emblems and had given them to a woman named Barton, from whom they were subsequently recovered, was introduced in evidence by the commonwealth. The defendant did not take the stand in his own behalf. The district attorney in addressing the jury referred to the possession of these articles by the prisoner and said: “There is no one on earth who can tell how these things came into the *294possession of the prisoner but the prisoner.” Counsel for the accused immediately objected, had the remark duly spread upon the record, and now assigns it for error.

Section 10 of the Act of May 23, 1887, P. L. 158, provides that the neglect or refusal of any defendant, actually on trial in a criminal court, to offer himself as a witness, may not be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial. In Com. v. Foley, 24 Pa. Superior Ct. 414, where the district attorney remarked, “You have this woman here without a denial,” Judge Qrlady truly said: “This privilege of the defendant would be of little value if the fact that she claimed its protection could be made the basis of an argument to establish her guilt. ... In spite .of the reasoning and refining which may be urged, there was but one deduction to be drawn from the remark as made under the circumstances, namely, that the refusal of the defendant to testify in her own behalf was significant of her guilt and tended to prejudice the jury against her defense.” In the case at bar the strongest evidence against the prisoner was his possession of the property of the deceased, and the remark complained of could have conveyed but one thought to the jury, and that was that the prisoner had not taken the stand to explain how he came by those articles. The district attorney who tried the case may not have meant to breach the statute, but his remark was in the nature of an adverse reference to the neglect of the defendant to offer himself as a witness, which the jury might well have regarded as creating a presumption against the accused. The effect of the remark should have been corrected by setting aside the verdict and granting a new trial.

Since the specification of error just treated of calls for a reversal, it is not necessary to elaborate upon the other assignments further than to say that the written statement of the accused offered by the commonwealth was part of the evidence in the case and should have been referred to in the charge, and that the use of the word *295“satisfies” in the instructions brought upon the record by the fifth assignment of error was at least inopportune. Standing alone, this latter part of the charge might have conveyed to the jury the impression that the burden was upon the defense to convince them that the deceased had died a natural death. But when we read the instructions as a whole we find that the trial judge plainly told the jury that the burden was upon the commonwealth “to prove a death by violence beyond a reasonable doubt”; to “exclude the hypothesis that death occurred by accident, mistake, or by natural causes,” and that “unless the commonwealth had proved beyond a reasonable doubt that the decedent died by an act of violence at the hands of another person, and if so, that the defendant was that other person, you must acquit.” On the whole we are not convinced of reversible error in any of the specifications excepting the sixth, which covers the remark of the district attorney; that assignment is sustained, and the others are overruled.

The judgment is reversed with a venire facias de novo.