176 A. 834 | Pa. Super. Ct. | 1934
Argued November 19, 1934. David J. McCord was charged in one indictment containing five counts with (1) assault and battery, (2) aggravated assault and battery, (3) operating a motor vehicle on the public highways while under the influence of intoxicating liquor, (4) violation of the Motor Code in failing to stop at the scene of an accident, and (5) involuntary manslaughter. In another *482 indictment J.H. Waggy was charged with the same offenses. The indictments, aside from the person charged, were identical in phraseology and as to dates, persons affected, and other circumstances. Counsel for defendants being informed that it was the intention of the Commonwealth to try the two defendants before one jury made motions, before plea entered and before the jury was sworn, for separate trials, which motions were refused and the cases were tried together. The jury found the defendant McCord guilty on all five counts and found the defendant Waggy guilty of operating a motor vehicle while under the influence of intoxicating liquor, the trial court having directed a verdict for the defendant Waggy on the other four counts. McCord was sentenced on each count except that for simple assault and battery, sentences to run successively and not concurrently, and Waggy was sentenced on the count on which he was found guilty. Each having appealed, the cases were argued together and will be disposed of in one opinion.
The eighth, ninth, and tenth assignments of error complain of the action of the court in refusing the defendants separate trials. It is strongly urged by counsel for the defendants that, having been separately indicted and the objections having been made before pleas were entered, the judgments must now be arrested. As was pointed out by this court in the case of Com. v. Schmidheiser et al.,
It has long been the custom in the larger counties of *483
this Commonwealth, where the volume of criminal business is large, to try several indictments charging misdemeanors against distinct individuals growing out of the same transaction, with the consent of the parties, before the same jury and at the same time. This practice expedites the trial of cases, saves the time of defendants and their counsel, and has no tendency to deprive the accused of any legal right: Com. v. Stewart,
In Com. v. Danaleczk et al.,
On Monday, May 7, 1934, at about 7:30 P.M., three young women were walking along the left side, as they were moving, of a concrete pavement at Wick Haven when they were struck from the rear by an automobile. One of the girls was killed, another seriously injured, and the third received some minor bruises. The defendants were arrested later the same day while operating an automobile owned by McCord which was alleged to have caused the accident. To sustain the charges, the Commonwealth accounted for the movements of both defendants from an hour or more before the accident until their arrest. During this time, there was abundant proof that the defendants were drinking, were intoxicated, and that each by turns while in that condition operated in Fayette County the automobile which caused the injury. A careful reading of the entire record convinces us that the offenses grew out of the same transactions; that the same evidence was necessary in both cases; and that they were so interrelated that neither case could be made out without using the material evidence in the other case. We have searched the record in vain for evidence of any facts or circumstances from which it might be concluded that either defendant was prejudiced by reason of the consolidation of the cases for trial, and there has not been called to our attention in the arguments any fact showing such prejudice to either of the defendants.
It would not be seriously contended that if one indictment *486 had been found against these defendants for the matters here charged, under the circumstances recited, they could not have been tried together, nor that in the exercise of a sound discretion the court would have granted a severance. In the present day when many of the rigors of the common law have been relaxed, certainly a reasonable distinction could not be drawn between that situation and the one here present. The true rule would now appear to be that just as in cases where a defendant is charged in one indictment by separate counts with different offenses, or where one defendant is charged in separate indictments with different offenses, so likewise where two defendants are indicted for the same misdemeanor growing out of the same matters and circumstances so related that the proofs received in one would be competent in the other, even though the defendants demand separate trials, whether either will be prejudiced by a joint trial and they are therefore entitled to a severance is a matter for the trial court to determine in the exercise of a sound discretion, and the appellate courts will not reverse except for a clear abuse of such discretion. These assignments of error are not sustained.
Nine assignments of error complain that the trial judge assumed toward the appellants and their counsel an antagonistic attitude which was prejudicial to the defendants and, relying on the cases of Com. v. Stallone,
On several occasions, the trial judge interrogated witnesses asking pertinent questions which, however, indicated no bias or feeling but were directed to clearing up doubtful matters or subjects that needed explanation. We believe that the conduct of the trial judge in this respect was in entire harmony with the Code of Judicial Ethics of the American Bar Association: Com. v. Brown, supra.
We find no merit in the assignments of error covering *488
the charge of the court, although we have examined these minutely and with care. Full and ample instructions were given in the general charge on the subject of circumstantial evidence, and it was therefore not necessary to repeat those instructions by answering all of defendants' points. The instructions on the subject of alibi were in strict accord with the rule of the Supreme Court laid down in Com. v. Stein,
The thirty-third and thirty-sixth assignments of error present a more serious question. As we have heretofore indicated, three young ladies were walking near the edge of a concrete pavement, two of them entirely on the berm and the third at times on the concrete. The uncontradicted evidence showed that they were struck from the back by an automobile which was being driven on the wrong side of the road at a rapid rate and that at one instant the young woman who was on the edge of the pavement was knocked a distance of sixty-five feet and instantly killed and the second by the same impact and at the same time was seriously injured. Assuming, for the sake of argument, that the evidence offered was sufficient to sustain a verdict of aggravated assault and battery against the defendant McCord, the operator of the car, under the facts separate sentences for the one act cannot be sustained. The case is ruled by the former decisions of this court in Com. v. Veley,
The judgment of the court of quarter sessions in the case of Commonwealth v. J.H. Waggy, 148 April Term, 1935, is affirmed, and it is directed that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been completed when the appeal in this case was made a supersedeas.
The sentence of the court in the case of Commonwealth v. David J. McCord, 147 April Term, 1935, insofar as the court undertook to sentence for aggravated assault and battery, is reversed and set aside, and the sentence for violation of the automobile code in failing to stop at the scene of the accident shall begin as of the date of the original sentences, and it is directed that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the remaining sentences, or any part of them, which had not been completed when the appeal in this case was made a supersedeas. *490