158 A. 600 | Pa. Super. Ct. | 1931
Lead Opinion
Argued April 30, 1931.
The appellant was indicted for bribery, the charges being that she gave (1) two police sergeants the sum of $44, and (2) a patrolman the sum of $10, as bribes to permit her to set up, maintain and conduct an illegal lottery, commonly known as the "Number game" or "Clearing House game" (See Com. v. Banks,
Two grounds for reversal are urged by her present counsel, who did not represent her on the trial.
(1) It is contended that the judgment should be reversed because of the court's failure to withdraw a juror, when the assistant district attorney, in addressing the jury told them that if acquitted in this case, "the defendant will continue to run her despicable business and continue to rob the poor."
The Commonwealth's officer should not seek to inflame the jury by referring to matters not in evidence, or by drawing deductions from the evidence which are not strictly legitimate or fairly warrantable, with the same end in view: Com. v. Nicely,
The language used by the assistant district attorney in this case was less harmful to the defendant and more warranted by the evidence than was employed in a number of cases in which the Supreme Court or this court refused to interfere. See Com. v. Del Vaccio,
(2) Two police sergeants and a patrolman testified on the trial to the matters averred in the indictment, and the Commonwealth produced and offered in evidence the forty-four dollars in currency which the sergeants, according to their story, had received from the defendant and which they at once turned over to their superior officer and marked so as to be able to identify it. The defense was a denial of the entire story; a denial that she ever knew the police officers, *202 ever met them or talked to them, or attempted to bribe them or secure police protection for a lottery, or gave them any money for that or any other purpose. Defendant testified and was corroborated by her maid, and in part by her husband's sister-in-law, that she was at home sick in bed on the two occasions (Sept. 28, 1930 at 1:30 A.M. and Sept. 29, 1930 at 8:30 P.M.) when the officers said she had approached and attempted to bribe them. The trial judge called the jury's attention to the full and complete denial of the defendant; to the corroboration of her witnesses; to the presumption of innocence in her favor; and told them that unless the Commonwealth had proved her guilt beyond a reasonable doubt she was entitled to the benefit of the doubt and to an acquittal; that before they could find her guilty they must believe from the evidence in the case that she met the police officers as testified to by them and gave them the money for the specific purpose testified to by them; in other words, that if they had any reasonable doubt as to her being present with the officers and giving them money to secure protection for her lottery, as testified to by them, they must acquit her.
Appellant's present counsel now complains, and contends that the judgment should be reversed, because the trial judge in his charge did not call her defense an "alibi" and instruct the jury that the defendant was required to establish such defense only by the preponderance of the evidence, and not beyond a reasonable doubt. But a reference to the foregoing will show that the judge placed no burden of proof whatever on the defendant, but charged the jury unless they found beyond a reasonable doubt that the defendant was present with the officers and gave them money for the corrupt purpose before mentioned, they should acquit; that if they had any reasonable doubt arising out of the evidence as to her presence with the officers as *203 testified to by them and her giving them the money for the specific purpose mentioned by them they must render a verdict of "not guilty." In the circumstances of this case had the court charged the jury as the appellant now asserts it should have done, we would probably have had her counsel here asserting, with more merit, that error had been committed because it placed the burden of disproof by a preponderance of the evidence on the defendant, when the burden of proof beyond a reasonable doubt rested at all times and as to all essential matters on the Commonwealth.
Appellant relies on two decisions of the Supreme Court, and if followed without discrimination and with no regard to the facts of those cases, they might support her proposition; but even so, we reverse only for harmful error, and if the court below charged the jury more advantageously to the defendant than she was entitled to, she has no just ground for complaint.
The cases relied on by the appellant are Com. v. Andrews,
As said before, that was a prosecution for first degree murder, in which the court below had specifically referred to the burden on the defendant of proving his alibi; and the Supreme Court, undoubtedly, had that in mind. See Com. v. Szachewicz,
Strictly speaking an alibi is not a purely affirmative defense. It is also a traverse of the charge (Rudy v. *206
Com.,
The third or additional assignment of error is overruled. The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as she may be there called and that she be by that court committed until she has complied with the *207 sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.
Dissenting Opinion
I must dissent from the majority opinion of the court. I think the court has erred in overruling the third assignment of error, in which complaint is made that the trial judge failed to charge the jury as to the nature, purpose and degree of persuasion necessary to establish the alibi offered by defendant. In this connection the learned trial judge charged as follows: "The defendant in her defense testified that she was not there, that she never saw the officers, that she never knew the officers; that she was not in Germantown on the occasions when the officers have testified that she was there and gave them this money." He reiterated this by saying: "Mrs. Stein, the defendant, has testified, as I have charged you, that she never saw these officers before; that she did not know them; that she had no contact with them as policemen or officials, law enforcement officials." And later the court said, "The defendant, as I have said, directly, specifically and positively denied the whole transaction. A maid employed by the defendant testified that the defendant was in bed, ill, upon the three evenings in question. The sister-in-law of the defendant has testified that the defendant was ill at home in the house, 6514 North 16th Street, on the occasion when the officers have testified positively that the defendant was in Germantown and gave them this money for the purpose as I have already stated to you."
It will thus be seen that the jury was fully instructed as to the nature of the defense and that the whole purpose of the testimony of defendant and her witnesses was to show that defendant "was not in Germantown on the occasions when the officers have *208
testified she was there and gave them this money." In this respect defendant had no just complaint. In Commonwealth v. Durlin,
However, on the question as to the degree of persuasion necessary to establish the defense of alibi, the charge of the learned trial judge is silent. He instructed the jury correctly as to the burden of proof resting on the Commonwealth to establish defendant's guilt "beyond a well-founded, reasonable doubt" and that if such a doubt existed, defendant was entitled to the benefit of it, but not a word was said as to the duty of defendant to make out her affirmative defense by the "preponderance of the evidence" (Myers v. Com.,
I am certain this was error, and I cannot agree it was harmless. It may have caused the jury to believe that it was necessary for the defendant to convince them of the genuineness of her alibi beyond a reasonable doubt. So much was said of the burden of proof on the Commonwealth that the jury may have gotten the impression that the same burden concerning her defense rested on the defendant. There is no sound reason why the jury should have thought otherwise. Any doubt regarding the mind of the jury in this regard must be resolved in favor of the defendant.
It seems to me that the law is well settled that the trial court in viewing the testimony in support of an alibi as arrayed against that of the Commonwealth showing guilt, should instruct the jury as to its nature, its purpose, and the degree of persuasion necessary to establish it: Com. v. Barrish,
It is urged by the Commonwealth that counsel for defendant, at the conclusion of the court's charge, asked for no specific or further instructions. It was unnecessary that he do so. Defendant had a right, even though no request was made for the instruction, to have the jury fully advised as to the difference between the burden resting on the Commonwealth to establish guilt, and that resting on the defendant with respect to the alibi set up: Com. v. Andrews,
It may well be, as contended by the Commonwealth, that the whole effect of the charge was more favorable to defendant than that to which she was entitled, but as said in Commonwealth v. Andrews, supra, at page 604: "How are we to know that the jury did not reject the defendant's alibi because the evidence supporting it did not measure to the high degree which excluded all reasonable doubt? If they did, it was a most serious mistake into which they fell because they were not instructed to avoid it; if they did not, their avoidance of the mistake was not due to any warning they had received from the court.
I would sustain the third assignment of error, reverse the judgment and award a new trial.
LINN, J., concurs in this dissent. *210