94 Pa. Super. 535 | Pa. Super. Ct. | 1928
Argued October 25, 1928. Appellant was convicted on two indictments, one charging entry with intent to steal, larceny, and receiving stolen goods; the other charging conspiracy to enter and steal. The first assignment of error is to the refusal to permit a witness called by the defendant to answer the following question: "Do you know how he [appellant] was arrested?" Later when appellant was on the stand he explained that he was not arrested, until, having heard that he was wanted, he went to the City Hall and surrendered himself; he had not been accused of flight; the assignment does not merit discussion.
Three assignments of error are based on three extracts from the charge, which, read together, constitute the instruction concerning defendant's alibi. He also complains of the instruction on reasonable doubt, and that the conviction was not warranted because based (in the words of appellant's brief) on the "testimony of two perjured accomplices utterly uncorroborated, though clearly susceptible of corroboration if true."
The verdict establishes that appellant and three accomplices during the night of December 31, 1927, entered the store of the Public Loan Company in *537 Philadelphia and stole property said to be worth $75,000. Two accomplices (the third is still at large) were tried together, convicted and sentenced several months before appellant was tried; they then denied knowledge of the crime. They were brought from the penitentiary, and testified in appellant's trial that he committed the robbery with them. Appellant testified that one of them had been in his employ in the "bootlegger business" before the robbery. He also testified that on the night of December 31 he was at his home with his wife at 9:30 and "went out — me and Jimmie, a friend of mine [who "used to be in the bootlegger business, once"], I stood with them until about 4 o'clock in the morning. We went home and we played the radio then and then went to sleep." In cross-examination he said that "we went up Market Street after midnight — about that — 1 o'clock, and played the radio until about 4 o'clock......" He testified that he was "now in the undertaker business" but had been in the "bootlegger business until this summer." He was contradicted by the Chief of County Detectives, who testified that in an interview with him after his arrest, he informed the detective that on December 31 he had been soliciting orders for liquor, that he left his house about 11:30 p.m. and went to the Dunbar Theatre and remained there until 2:30 a.m. When reminded that January 1st was Sunday and that the theatre could not be open, he insisted, so the witness stated, that he went to the theatre and saw the New Year's parade, although the parade took place on Monday, January 2nd, and not on Sunday, January 1st.
The court instructed the jury concerning the consideration to be given to the testimony of accomplices, stating that while the jury might find a verdict on their evidence alone, it should only be done after the jury had "carefully scrutinized their testimony"; *538
that "it must be scrutinized with care on your part, bearing in mind that they are accomplices, and they are criminals, who by their own word took hand in the robbery." Appellant now complains that the evidence of the two convicts should not have been submitted to the jury without corroboration. The complaint is without merit; it is settled in this Commonwealth that (excepting the bribery cases within the proviso to section 49 of the Act of March 31, 1860, P.L. 382) corroboration is not essential: Cox v. Com.,
Coming now to the alibi, it may be said at once that in his charge the judge used an inappropriate expression; we are convinced, however that in the circumstances, the expression was harmless and not the subject of reversal. It may be recalled "that the object of a trial before a jury is to ascertain, with as much certainty as can be attained in a human tribunal, the guilt or innocence of one charged with crime. When as the result of such a trial a verdict has been rendered against the prisoner, it ought not to be set aside by the trial judge, or by proceedings in a court of error, unless in some essential particular the trial has been erroneous. No merely technical or formal objection not affecting the result should be listened to." Com. v. Mudgett,
A line or two are selected from the charge as basis for the complaint that the jury could entertain no reasonable doubt that did not arise from all the evidence, thus depriving appellant (so the argument goes) of the benefit of a reasonable doubt arising from any part of the evidence. Certainly a reasonable doubt *541
may arise from part of the evidence (Com. v. Green,
Judgment affirmed.