Commonwealth v. Viscosky
Argued March 10, 1924.
Appellants were jointly charged with having maliciously destroyed a railroad bridge belonging to the Baltimore Ohio Railroad Company. The indictment contained two counts; the first charging a felony under the Act of May 9, 1913, P.L. 186; the second a misdemeanor under the Act of March 31, 1860, P.L. 382, pl. 147. They were convicted on both counts, but sentenced on only the first. Sentence on the second count was suspended, and the assignment as to that count need not be considered: Com. v. Mellon,
The bridge was blown up by the use of an explosive on July 17, 1923, while a coal strike was in progress. It formed part of the railroad company's spur to a nonunion mine which was being operated during the strike. The accused were all union strikers. The only direct evidence of their participation in the crime was furnished by John Goodisky, also a striker, an accomplice, whose testimony implicated all of the appellants, but placed the more active direction of the outrage on Viscosky, Kulchek and Ramsell, the last-named the secretary of the local union. Most of the numerous assignments of error filed relate to the examination of this witness and the charge of the court concerning his testimony.
The trial judge allowed the defense the widest latitude in the cross-examination of this witness as respects any promise, inducement or reward offered him in connection with his evidence. He was fully interrogated as to the circumstances under which he made his statement to the officials who arrested him, where it was made, who were present, who paid his expenses to Pittsburgh and return, and while there, whether any money was paid him by anybody or any promise made directly or indirectly if he would tell the story of the dynamiting; who furnished his bond for him, where he had been living since, who paid his hotel bills and expenses while attending court, with whom he had discussed the story, and whether anything was said indicating that he would be treated leniently if he told such a story — in short, he was most searchingly examined. After having elicited all the facts from which a jury might infer the state of the witness's mind and determine whether he was telling the truth in denying that any money, reward, promise, immunity or leniency had been offered him for testifying in the case, counsel for the defendants asked him whether he expected any leniency or to be treated any different than the defendants because of the testimony he was giving. This was objected to by the Commonwealth and *Page 100 was excluded by the court "until facts have been produced under this cross-examination upon which expectations might be based."
It is unquestionably the law in this State that a very wide latitude is permitted in the cross-examination of an accomplice and the most searching questioning is allowed in order to test his veracity, show his feeling or animus against the defendants, disclose his interest, and discover whether any promise, reward, immunity or leniency has been held out, offered or indicated to him in return for his evidence: Kilrow v. Com.,
The second, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth assignments may be considered together and must be overruled. The offer to prove that the witness Goodisky had said to Walter Kachosky about a week before the explosion that they could clean out the scabs and get a lot of money for it, was of no possible relevancy in this case and shed no light on Goodisky's feelings toward the appellants nor on his interest in this prosecution. The appellants were not "scabs." That opprobrious term is applied by strikers to men who exercise their right to work when the union orders a strike. None of the men who were alleged to have had part in the blowing up of the bridge were "scabs"; they were all strikers and union men. So as to the offer to prove that Goodisky had said that he could get a fellow from Illinois and a few other radicals to blow up the fan house and tipple and clean up Jerome [the nonunion mine]. It was not done, and the remark shed no light on Goodisky's animus towards the defendants nor disclosed any promise or inducement leading him to testify against the defendants. If Goodisky had been asked concerning these statements and had denied them, he could not have been contradicted, as they were wholly collateral: Hester v. Com.,
We think the court was sufficiently clear and explicit in its charge as to the caution to be exercised by the jury in convicting the defendants upon the uncorroborated evidence of an accomplice. As pointed out by Prof. Wigmore (2d ed., vol. 4, section 2056, p. 353), this is not a rule of evidence but merely a counsel of caution. "There is no rule of law in this State that forbids a conviction on the uncorroborated testimony of an accomplice: Ettinger v. Com.,
In Com. v. Haines,
Nor do we think the other exceptions to the charge are well taken. That portion which relates to the presumption of innocence was almost in the language approved *Page 106
by the Supreme Court of Indiana in Anderson v. State,
We are not satisfied that the court abused its discretion in refusing to permit the defendants' counsel to cross-examine the witness Horgan called to testify on their behalf, [28]. It does not appear that the witness had made any statement to defendants' counsel contrary to his testimony on the stand, as in Com. v. Spardute,
The order of procedure in a trial is largely within the discretion of the court and even if the evidence of Friedline, Zimmerman and Griffith might have been offered in chief, its admission in rebuttal was not reversible error: Carroll v. Com.,
We do not deem it necessary to refer to the other assignments in detail. We have considered them all, but find in them no reversible error. They are all overruled. Nor do we feel that we should grant appellants' unsupported motion, presented at the argument, and remit the record to the lower court with authority to reinstate the rule for a new trial, on the ground of after-discovered evidence. From a careful reading of the evidence in the case, and especially the cross-examination of Goodisky, [Record, 69a] we are inclined to the belief that the defendants either had some knowledge of the alleged meeting in Johnstown or could have secured it by due diligence in time for the trial.
The judgments are affirmed and it is ordered that the defendants severally appear in the court below at such time as they may be there called and that they be by that court committed until they have complied with their respective sentences or any part thereof which had not been performed at the time the several orders of supersedeas were entered in these appeals. *Page 108