157 Pa. 13 | Pa. | 1893
Opinion by
The indictment, on which appellant and his brother were tried, contains four counts respectively charging the defendants therein named, with: (1st) aggravated felonious assault and robbery; (2d) aggravated felonious assault with intent to rob ; (3d) robbery, and (4th) larceny. Two of the defendants, Engle and Snow, had pleaded “guilty.” Appellant and his brother, protesting their innocence, went to trial. The latter was acquitted. The former was found “ guilty of larceny as charged in the fourth count of the indictment,” and recommended to the mercy of the court. ■
The circumstances, attending the commission of the alleged crime as shown by the testimony, are fully stated in the charge of the court. It is unnecessary for us to do more than refer to a few of them incidentally. If the learned president of the oyer and terminer was correct in his view of the law applicable to the undisputed facts, there cannot be any doubt that the crime of larceny at least was committed. It was not shown that appellant was present when the money was taken. On the contrary, the proof of an alibi appears to have been very clear and uncontradicted. If, however, the taking, in the circumstances disclosed by the commonwealth’s testimony, amounted to larceny, and the evidence, tending to prove that appellant was an accessory before the fact, was believed, the jury was warranted in finding as they did. The substance of that evidence is, that a robbery was adroitly planned by him, but the execution thereof was entrusted to Engle, Snow and Brown,
This mere outline of the more prominent facts which the commonwealth’s testimony tends to prove will be sufficient for the purpose of disposing of the specifications of error, the first and second of which complain of the following extracts from the learned judge’s charge :
(а) “You may convict the defendants on the third count of an attempt to rob, and on the fourth count of a larceny, according as you are satisfied and convinced by the evidence in the case.”
(б) “ As to the third count you will say whether the defendants are guilty or not guilty of an attempt to commit a robbery, and ou the fourth count whether they are guilty or not guilty of a larceny.”
. The remaining specification charges error generally “ in submitting to the jury the question of defendant’s guilt or innocence of the crime of larceny as charged upon him in the fourth count of the indictment; there not being sufficient evidence tc warrant the submission of that question.”
So far as Engle and Snow participated in taking the money, the testimony all tends to show that they did so animo furandi, in pursuance of the preconcerted scheme to rob, etc., and were therefore guilty, at least of larceny : Com. v. Eichelberger, 119 Pa. 254.
The ease against appellant turned upon questions of fact which were exclusively for the determination of the jury. To them it was fairly submitted with very full and adequate instructions. If there was any error, it was on the part of the jury; and the only remedy for tliat was in the court below. Neither of the specifications is sustained.
The sentence of the court of oyer and terminer is affirmed, and the record is remitted to the court for the purpose of fully executing said sentence ; and to that end, it is ordered that appellant do forthwith surrender himself into the custody of the sheriff of Lackawanna county.