279 Pa. 465 | Pa. | 1924
Opinion by
On the morning of February 24, 1922, the dead body of Sylvester Carlisi, a coal miner, was discovered at Florence, Jefferson County, in the back yard of James Puglise. There was a small rope around the neck by which the body was suspended from the limb of an apple tree with the knees touching the ground. Some eighteen days thereafter Puglise and Vincenzo Mazarella, the defendant, were arrested and jointly charged with the murder of Carlisi. They were tried separately and Puglise was twice convicted of first degree murder; his first conviction having been set aside by this court in Com. v. Puglise, 276 Pa. 235. After his second conviction Mazarella, herein called the defendant, was tried and convicted of murder of the first degree, and, from sentence imposed thereon, brought this appeal.
A careful examination of the record discloses errors which call for reversal. Puglise on each trial of his own case testifies in effect that he was entirely innocent and had no knowledge as to the death of Carlisi; he also
Peter Spinelli, county detective, investigated the death of Carlisi and with other officers arrested the defendant on the morning of March 14, 1922, at his home in Florence; at which time the latter denied any knowledge of or complicity in the death of Carlisi. This denial was repeated on the road to jail; and, later the same day, when Spinelli told him he had been implicated in the murder by a statement of Puglise and explained to him the contents thereof, defendant replied that such statement “was a lie fifty thousand times.” Puglise was brought in at once and reiterated the statement; then, after a pause, estimated at two or three minutes, Spinelli asked defendant what he had to say, whereupon the latter raised his hand and said, “Christo la sape,” which words literally mean, “God knows,” but when used in connection with raising the hand are understood in that part of Italy from which Spinella and defendant came as a solemn protestation of innocence. Permitting the Commonwealth to prove this conversation and refusing to strike out such proof was error. Statements made in the presence of a defendant cannot be used as evidence against him unless he acquiesced in them affirmatively or by his silence when he should have spoken. Here the fact that defendant did not immediately, and before being asked, again deny the statements is of no significance. He had just told the same officer, Spinelli, who informed him of what Puglise said, that it was “a lie fifty thousand times,” and was not bound to repeat it: People v. Collins, 234 N. Y. 365, 137 N. E. 753; Underhill’s Criminal Evidence (3d ed.), p. 297. Again, Puglise did not speak there until asked, and defendant would naturally do the same. It cannot be said defendant acquiesced in what he emphatically and repeatedly denied. In the face of such denial the statements could not be offered in evidence (Com. v. Johnson, 213 Pa. 607;
Puglise’s evidence was that the crime was committed at about eight o’clock p. m. Defendant was a miner working night shifts, which usually extended from approximately two to ten o’clock p. m., and he offered evidence tending to show that on the evening in question (February 23, 1922) he worked in a coal mine, over a mile from Puglise’s home, until nearly ten o’clock, and it was shown that he and his buddy mined and loaded nine cars of coal during that afternoon and evening; in connection therewith, defendant offered to show the amount mined by others on the same day in the same general section of the mine. This might have thrown light on the question of whether defendant was at work that evening and should have been admitted, subject of course to any relevant explanation.
In the case of Com. v. Puglise, supra, and in Com. v. Crossmire, 156 Pa. 304, we hold expert opinion competent as to the cause of death, and it is equally so as to the inability at times to discover such cause.
Puglise testified that at the time of the alleged homicide defendant was armed with a black handled revolver; therefore, in answer to the latter’s denial of ever having had such a weapon, it was competent for the Commonwealth to offer proof that on a former occasion he had such a revolver in his possession; but excluding therefrom whatever might tend to show an independent offense. See Com. v. Gibson, 275 Pa. 338; Com. v. Haines, 257 Pa. 289.
It is not necessary that the contents of a deceased’s stomach sent away for chemical analysis be so identified as to preclude the possibility of a doubt (30 C. J. 220) and in our opinion the trial judge did not err in admitting in evidence the result of such analysis in the instant case; although the identification would have been more complete had Dr. Narr, to whom the package was addressed, been called as a witness.
There was no proof that Mrs. Puglise did more than fail to report the alleged offense; hence, the trial judge properly held she was neither an accomplice of the defendant nor an accessory after the fact. See Com. v. Loomis, 267 Pa. 438.
As the case is reversed on other grounds it is unnecessary to pass upon the complaint of the conduct of counsel; however, we suggest that at the retrial the able counsel for the Commonwealth keep better in mind the fact that he is a judge advocate (Com. v. Bubnis, 197 Pa. 542) and must take no unfair advantage of the defendant.
As the testimony of Mr. and Mrs. Puglise came from a discredited source it should be very carefully scrutinized, as it also should because it came from an inter
There is nothing in the other numerous assignments of error which seems to call for discussion.
For the reasons above given the judgment is reversed and a venire facias de novo awarded.