Commonwealth v. Holgate , 63 Pa. Super. 246 ( 1916 )

Opinion by

Trexler, J.,

The defendant was indicted for larceny and receiving. A verdict of guilty was rendered on' both counts. Under the proof submitted there was sufficient to warrant a conviction on either depending upon the view the jury took of the evidence.

There are seventeen assignments of error. .We will consider them as grouped by counsel in their argument.

First: The contention of the appellant that no knowledge of the felonious taking on the part of the defendant was affirmatively shown, hardly merits consideration. It is true that the testimony of the defendant and his witnesses as to his receipt of the stolen property was unshaken and uncontradicted, but its credibility was nevertheless for the jury. That testimony may be uncontradicted does not imply necessarily that it is true. It was for the jury to decide whether they should believe the story given by the defendant. Taking all the facts, the guilt of the accused might be inferred from the circumstances, e. g., from the possession of the property after the theft and his not giving a satisfactory account of the manner in which, consistent with his innocence, he obtained it. If he gives an account, the jury must decide upon its credibility: Com. v. Berney, 28 Pa. Superior Ct. 61; Rosenberger v. Com., 118 Pa. 77; Com. v. Ault, 10 Pa. Superior Ct. 651; Wharton’s Criminal Evidence, Vol. II, p. 1509, 10th Ed. They are not bound to believe an incredible story because no witness contradicts it: Shultz v. Wall, 134 Pa. 262.

Second: The question whether the person who had the search warrant was properly authorized to enter the premises where the property was found, was vigorously argued by appellant and it is urged that the court erred in saying, “That when an officer comes with a paper purporting to be a search warrant, we must assume in this proceeding, at least, whatever may be the truth in the matter, he was there properly and that he came there with a search warrant to search these0 premises.” We may accede to the proposition that when one claims the right to enter another’s dwelling in search of property, he may be required to exhibit his warrant.for so doing and such exhibition ordinarily should go so far as to allow the occupant of the premises under proper safeguards to see the paper. We are not however in this case trying the right of the defendant to see the warrant, nor the legality of the constable’s entering upon the premises. The fact remains that the stolen article was found in the barn of the defendant, in a place over which he exercised control, and which he used for his own purposes, and that when the warrant was read, defendant said it was all right, but afterwards ashed to read it, and when refused said he did not care where the constable having the warrant went. What occurred was evidence irrespective of the legality of the search warrant and the collateral issue as to the right of the constable to enter the premises threw no light on the question trying. The instruction of the court that the jury might consider that the constable proceeded properly was merely excluding from their consideration something that should not enter into the decision of the case. Had anyone without a warrant come to defendant’s premises in search of the stolen property, the latter’s acts and declarations would have been proper evidence if offered by the Commonwealth.

Third: The statement of the court that the Commonwealth claims that the defendant’s actions were not “frank, open and fair, which would indicate guilt on his part,” did not assume that this conclusion was necessarily to be drawn but that this was what the Commonwealth asked the jury to do. The Commonwealth had a right to argue this under the evidence that was produced and a reference to it by the court was entirely proper.

Fourth: The jury found the defendant guilty of larceny and receiving. He could not be guilty of both. The court had inadvertently instructed them that they could return a verdict of guilty on both counts. The court, however, arrested the' judgment on the count charging receiving and sentenced the defendant for larceny. Had defendant been sentenced on both counts, he would undoubtedly have just grounds for complaint. He was convicted and sentenced on but one count. Conviction in its legal and technical meaning is not complete until sentence is passed: Smith v. Com., 14 S. & R. 69; County of Cumberland v. Holcomb, 36 Pa. 349; Com. v. Minnich, 250 Pa. 363. There is no difference in effect between a general verdict of guilty and a verdict, of guilty on all counts. If one count sustains the verdict, sentence may be imposed upon that: Com. v. Stern, 58 Pa. Superior Ct. 591 (603); Henwood v. Com., 52 Pa. 424; Com. v. Dudley, 46 Pa. Superior Ct. 337; Stahl’s App., 1 Pa. Superior Ct. 496; Com. v. Goldberg, 4 Pa. Superior Ct. 142; Com. v. Prickett, 132 Pa. 371; Hazen v. Com., 23 Pa. 355.

Fifth: The court failed to charge as to the presumption of innocence but did instruct as to reasonable doubt. The defendant’s counsel did not call the attention of the court to the omission. When the charge is just to the prisoner and the points fully answered the court will not as a general rule be convicted of error for not having instructed on a point which was not presented: Zell v. Com., 94 Pa. 258; Com. v. Winkelman, 12 Pa. Superior Ct. 497; Cathcart v. Com., 37 Pa. 108; McMeen v. Com., 114 Pa. 300; Com. v. Caraffa, 222 Pa. 297; Com. v. Pacito, 229 Pa. 328; Com. v. Duffy, 49 Pa. Superior Ct. 344; Com. v. Zappe, 153 Pa. 498; Com. v. Morrison, 193 Pa. 613.

The defendant is entitled to instruction that if a reasonable doubt exists it must resolve itself in his acquittal: Com. v. Duffy, supra; Com. v. Devine, 18 Pa. Superior Ct. 431; Com. v. Deitrick, 221 Pa. 7; Com. v. Hoskins, 60 Pa. Superior Ct. 230; Com. v. Andrews, 234 Pa. 597.

Is the mere omission to charge as to the presumption of innocence in the absence of a request so to do, reversible error? Was the court in addition to the instructions as to reasonable doubt required to instruct as to the presumption of innocence? At the argument at bar, the defendant relied on the case of Coffin v. U. S. 156 U. S. 432. There it was held that reasonable doubt is the result of proof, not the proof itself whereas the presumption of innocence is one of the instruments of proof going to bring about the proof from which reasonable doubt arises. The one is the cause, the other the effect, and that one is not the equivalent of the other and that a failure to instruct in regard to presumption of innocence excluded from their minds a portion of the proof created by law. The above statement has been severely criticised by both Wigmore and Cbamberlayne, and what is claimed to be its fallacy exposed in detail in Thayer’s Preliminary Treatise on Evidence, Appendix B, p. 551. The conclusion reached by the Supreme Court has not been followed in a number of states, and in Agnew v. U. S., 165 U. S. 36, it is stated that the declaration in the Coffin case that legal presumptions are treated.as evidence has a tendency to mislead. The whole question of the presumption of innocence is at length discussed in Chamberlayne on Evidence. We quote from Sec. 1174, “All that is properly contained in the expression “presumption of innocence” may be restated with a sufficient approximation to exactness in stating that in a criminal case it is the duty of the government to prove every material allegation set forth in the indictment against the prisoner beyond á reasonable doubt.” Wigmore on Evidence, Sec. 2511, is to the same effect. The “presumption of innocence” is in truth merely another form, of expression for a part of the accepted rule for the burden of proof in criminal cases, i. e., the rule that it is for the prosecution to adduce evidence and ■ to produce persuasion beyond a reasonable doubt.” It follows, if this be correct, that proper instructions as to reasonable doubt, accord to the defendant all that he is entitled to in regard to the subject of presumption of innocence, and that if the latter be referred to, it is merely in amplification or further explanation of the former, and is not to be regarded as a “portion of the proof created by law,” in regard to which failure to instruct is error. We are convinced that the weight of authority is against the appellant’s contention, and that the court did not err in not charging as to the presumption of innocence when he had already charged as to reasonable doubt, and that if defendant desired instructions on this particular phase of the subject, he should have requested the court so to do.

Sixth: The trial judge failed to allude to the corroboration of the defendant by a witness. He referred to the testimony of the defendant in which he received the wagon, and if the defendant wished further reference to this branch of the defense, he should have asked for it. Both sides of the case were fairly presented and the failure to comment on the testimony of one witness which, as to some facts, corroborated the testimony of the defendant, was not reversible error. Even in a capital case, where the trial judge misquotes testimony of a witness, his attention should be called to it, otherwisé it is not the proper subject of complaint on appeal: Com. v. Razmus, 210 Pa. 609. We feel sure in the case at bar that in no part of the charge was any injustice done to the defendant.

We have considered all the questions in the case which require attention and conclude that the learned trial judge did not commit error.

The assignments of error are overruled. The judgment is affirmed, and it is ordered that the' defendant, appellant, appear in the court below at such time a& he may be there called, and that he be by the court committed until he has complied with the sentence or any part of it that had not been , performed at the time this appeal was made a supersedeas.