60 A.2d 397 | Pa. Super. Ct. | 1948
Argued March 16, 1948. Clifton J. Roberts, appellant, was indicted and tried by a jury for incestuous statutory rape.1 The jury was unable to agree upon a verdict and was discharged. At the second trial, appellant was found guilty and sentence duly imposed. This appeal seeking a new trial is based (1) on the lower court's refusal to grant a continuance of the case to the succeeding session of the court, (2) to alleged prejudicial remarks by the trial judge and (3) *45 that the verdict was against the weight of the evidence.
A detailed recital of the shameful debauchery is unnecessary. We are all of the opinion that there was ample evidence to support the verdict, that the defendant had a fair trial, and that appellant's argument that the testimony of the Commonwealth's witnesses was "incredible," "improbable," "absurd," "unworthy of belief," "ridiculous," "beyond comprehension," and "inconceivable," in the circumstances of this case is one which should have been addressed to a jury and not to this Court. No complaint is made by appellant to the charge of the trial judge with regard to its fairness, completeness or propriety. It cannot be said as a matter of law that the jury in returning a verdict of guilty acted capriciously and without regard to the testimony.
Applications for continuance are addressed to the sound discretion of the trial judge and the action taken thereon in the absence of manifest abuse thereof, will not be disturbed:Commonwealth v. Schurtz,
Before the completion of the case appellant's son, Charles Roberts, appeared and testified. The testimony of his wife, Mary Roberts, who was not called as a witness at the former trial, would have been merely cumulative. Refusal to grant a continuance where the testimony of the absent witness would be merely cumulative does not constitute an abuse of discretion:Commonwealth v. Deni,
In regard to the character witnesses, Vosburg and Straub, the record reveals they were available and at the time of the trial were attending to their daily occupations. The facts set forth in the second motion for continuance were not supported by affidavit, except as to both Roberts, or by other evidence; it did not show where the witnesses were, what efforts were made to secure *47
their presence or that they could be secured at a later date. It is idle to assume that the appellant was prejudiced by their absence at the second trial, because it resulted in a guilty verdict, whereas a disagreement followed the former trial at which they, excepting Mary Roberts, testified. No sound purpose may be served by indulging in such sophistry. Such argument has the habiliments of mere guess, speculation and conjecture. Even though appellant does not complain it might as well be said that the failure to call at the second trial witnesses, other than Vosburg and Straub, who likewise testified at the former trial, caused the guilty verdict. As stated in Commonwealth v. Rouchie,
Moreover, the court was not unduly severe; it appears that after the jury had been discharged after disagreement at the first trial, a continuance upon appellant's application was granted to the next session of criminal court. In all these circumstances, therefore, it cannot be said that the trial judge was guilty of an abuse of discretion in refusing appellant's motion for a continuance.
What was said in Commonwealth v. Crandall,
Appellant's contention that the remarks of the trial judge2 in the presence of the jury had the effect of impeaching the credibility of his witness, is without merit. The remarks of the court concerned its recollection of the witness's prior inconsistent testimony. In view of the witness's admission that the court's recollection was correct, we fail to see how such remarks could possibly have the prejudicial effect ascribed to them by the appellant. Especially where, as here, they bring to light the true facts. See Commonwealth v. Martin,
We have reviewed the entire record, have carefully perused and examined counsels' written arguments and we are satisfied that the appellant was given a fair and impartial trial, and that the evidence fully supports the verdict and judgment.
The assignments of error are overruled, the judgment of the court below is affirmed and defendant is directed to 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 its sentence or any part of it that had not been performed at the time the appeal was made a supersedeas.