39 Pa. Super. 502 | Pa. Super. Ct. | 1909
Opinion by
The defendant was a judge of election, and as such was intrusted with and had in his custody for safe-keeping and delivery to the prothonotary of the court of common pleas of Lackawanna county, the triplicate election returns, tally papers and other returns and papers used in counting the votes cast at an election held on November 3, 1908. He was charged with unlawfully defacing, altering and changing a certain tally paper of the said district, by adding after the name of Morgan Thomas, a candidate for the office of county commissioner, fifty-three tallies, thereby changing the said tally paper so that it appeared that Morgan Thomas, candidate, had received 136 votes for the office of county commissioner instead of eighty-three, which were actually received.
At the conclusion of the commonwealth’s case the first and second counts of the indictment were withdrawn from the consideration of the jury. The defendant was convicted, and on his appeal to this court he urges that the trial judge erred in charging the jury as follows: “The question has been argued before you as to when it was the duty of the judge of election to bring the returns into the office of the prothonotary. I say to you, as a matter of law, that it was the duty of this defendant to bring the returns to the county seat and file them in the office of
The foregoing is an excerpt from the charge and does not fully represent the whole thought expressed to the jury. Moreover, the act of 1903 was not involved in the case, and was improperly interjected into the trial by the defendant’s counsel. It had nothing to do with the issue under the indictment, and the evidence clearly shows that this defendant had’in his possession tally papers which had been mutilated or forged, without any explanation being given. The trial judge went farther than was necessary, in adding that they could take the requirements of the act of 1903 into consideration, and if the defendant had been misled or misguided by that act of assembly, it would be a good defense in that prosecution.
The only other assignment of error relates to remarks made by the district attorney in the presence of the jury in the close of his argument, which are admitted to be as follows: “If a note was given by a man to another for 1136 and it was shown to have been altered, and there was no explanation as to the alteration, that could be used as a presumption against him.” There was no reference to the fact that the defendant did not go upon the witness stand in his own defense, and no comment was made of his failure so to do. The attention of the court was promptly called to the remarks of counsel and an exception was taken. The court asked the defendant’s counsel if he desired to have a juror withdrawn and the case continued, when counsel replied that they did not have to ask for that, as they understood it, and elected to stand on the exception alone.
The attention of counsel was called to the propriety of asking • for the withdrawal of a juror, which suggestion was declined. They elected to go to the jury on the main facts of the case, and on the record as they have made it. They come within the rule laid down in Commonwealth v. Weber, 167 Pa. 153, viz.: There is no distinction between admission of improper evidence and improper argument. It is the duty of counsel to aid the court, by their learning and fidelity, in the administration of justice; any other rule of duty would probably lead to very undesirable results; because, without it, the most effective defense that astute counsel could make for criminals with a hopeless case on the evidence, would be, by silence, in order to invite errors of omission and commission by the court and opposing counsel, with the object of securing reversals on review; and thus by persistent, expensive and vexatious appeals, wear out the prosecution.
The proper practice is a motion for the withdrawal of a juror and continuance of the cause: Com. v. Windish, 167 Pa. 164; Com. v. Greason, 204 Pa. 64, and a number of other cases.
The words of the district attorney were doubtless forcible and illustrative, and brought quite keenly to the minds of the jury the facts in the case, but they were not more than this, and
The assignments of error are overruled. The judgment is affirmed.