Commonwealth v. Rogo , 71 Pa. Super. 109 ( 1919 )

Opinion by

Porter, J.,

The appellant was convicted in the court below of perjury, charged to have been committed at the trial, in the Court of Oyer and Terminer of Lackawanna County, of one Anthony Malinaro for the murder of Alfred Viola also known as Jim Malvase. The alleged perjury consisted of the testimony of the appellant that he had a conversation with Viola, the deceased, shortly after the latter had been wounded and was in a buggy in front of Rizzo’s hotel, that appellant, addressing the wounded man, said “What is the matter with you, Jim?” and that Viola replied, using a vile epithet, “He shoot me with my own arm.”

Testimony may be material, and properly assigned for perjury, either where it tends to directly prove or disprove one side or the other in the main issue, or where under the established rules of evidence it indirectly tends to do so by crediting or discrediting other evidence or the testimony of another witness. In some cases the materiality may be determined by reference to the pleadings without regard to the testimony, in others, the testimony given being upon some secondary issue of fact arising on the trial in the case, its materiality can only be determined by an examination of the other testimony which it is intended to corroborate or contradict: Commonwealth v. Stern, 58 Pa. Superior Ct. 591; Commonwealth v. Bobanic, 62 Pa. Superior Ct. 40. Malinaro was upon trial for murder. He entered the general plea of not guilty, but under that plea the mere question of whether he had killed Viola was not necessarily the only one involved. He was free to present any competent evidence tending to rebut the presumption of malice arising from the use of a deadly weapon, or he might show that he had killed Viola in self-defense. The defense which he presented was that Viola had attacked him with a knife, that he (Malinaro), caught the wrist of the hand which held the knife, that Viola thereupon threw him upon the ground and that he (Malinaro) with his other hand reached around and took a pistol from Viola’s hip pocket, that Viola attempted to recover possession of the pistol which was discharged in the struggle and that the mortal wound was thus inflicted upon Viola. The Commonwealth had produced several witnesses who testified that there was no struggle between the men, that they were standing a few feet apart, that Malinaro’s right hand was in his own coat pocket and that from a pistol in that pocket he fired the shot which mortally wounded Viola. It was proper for the court to consider this evidence in order to ascertain the issues really presented at the murder trial and determine the materiality of the testimony there given by this appellant. The fact that the testimony of Malinaro was read in the presence of the jury did this appellant no harm, it did not tend in any manner to contradict the testimony of this appellant either at the trial of Malinaro or at his own trial, from the result of which he now appeals. This disposes of the second question which the appellant’s counsel assert is here involved.

The first question which the learned counsel for the appellant states to be involved in this case is the relevancy of the testimony of eyewitnesses to the killing of Viola by Malinaro upon the trial of this appellant for perjury. The conversation with Viola to which this appellant testified at the murder trial was by him alleged to have occurred very shortly after Viola had received his mortal wound, it was admissible for the reason that it was of the res gestae and for the additional reason that the testimony of this appellant disclosed that Viola then believed that his wound was a mortal one and that he was in the presence of death. Dying declarations by the victim of an assault, as to the manner in which he received his injuries, are by the law accepted as evidence for the reason that human experience teaches us that he will then speak the truth. The testimony at the trial of Malinaro for murder, as well as that of this appellant for perjury, clearly indicated, that, at the time of the alleged conversation, Viola believed that he was dying. There thus arose the probability that-he would speak the truth, upon which assumption the admission of the declaration in evidence is founded. It seems to logically follow that when the question is whether a man has, or has not, in these circumstances, made a given statement, it is relevant to inquire what were the actual facts in the transaction to which the alleged statement refers. Was it probable or improbable that the deceased made any such statement? It is never irrelevant to give in evidence any circumstance which tends to make the proposition at issue more or less probable: Johnson v. Commonwealth, 115 Pa. 370; Eighmy v. People, 79 N. Y. 546; Stephen’s Digest of Law of Evidence, Chap. 1, Art. I. We are of opinion that the evidence in question was properly admitted.

Careful examination of the testimony has led us to the conclusion that it was sufficient to sustain the conviction. The appellant had testified that the buggy was standing in the street in front of Rizzo’s hotel. The testimony of Thomas McCue, who testified that he stopped the buggy, in which John Davis had the wounded man and took the wounded man from the buggy and placed him in an automobile, would have warranted a finding that the wounded man had no conversation with anybody after the buggy stopped, he testified positively that such a thing could not have occurred, that the wounded man was moaning and spoke to no person. It is true that he said there were a number of men around the buggy as it was approaching him, and that he could not say what had then occurred, but his testimony was positive that the wounded man spoke to no person after the buggy stopped. John Davis testified that he took Viola in his buggy from the place where the shooting occurred along Oak street until he met McCue who took Viola from the buggy and put him in the automobile, that he did not hear any such conversation as that testified to by this appellant, nor did he there see this appellant, that he believed he would have heard any such conversation had it occurred. It is true that upon cross-examination he did say that the appellant might have been there, although he did not remember to have seen him there. He said “I think I would have heard it I was pretty close to him (Viola), I can’t tell for sure, I couldn’t swear to it.” There is no doubt whatever that John Davis was sitting beside Viola in the buggy at the time the. appellant alleges that he had the conversation with the wounded man. We thus have McCue positively testifying that the conversation could not have occurred after the buggy stopped, and Davis testifying that he did not hear the conversation, that he believes he would have heard it if it had occurred, but saying that he is unwilling to swear that it could not possibly have occurred. “It is the general rule that the testimony of a single witness to the falsity of the matter on which the perjury is assigned, is insufficient to convict on a charge of perjury. Two witnesses are not essentially requisite, for if any material circumstance be proved by other witnesses in confirmation of the testimony of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction”: Williams v. Commonwealth, 91 Pa. 493. We have in this case the positive testimony of McCue that the alleged conversation could not have occurred, the corroborating, testimony of Davis that he was sitting beside Viola, that he did not hear the conversation and that he believes he would have heard it if it had occurred. We have in addition to this the testimony of Thomas Reese, who was county detective, that prior to the arrest of Malinaro, lie bad a talk with this appellant about tbe case, and tbe latter told him that be knew nothing about it, saying, “No, I know nothing about tbe case at all.” This conversation occurred about two months after tbe killing of Viola. Tbe appellant admitted that be bad never said anything about tbe alleged conversation with Viola until after be bad bad an interview with Malinaro, in tbe jail, many months later. We have in addition to this corroborating evidence tbe improbability that a man who thought be was dying would make a declaration against bis own interests, which by tbe overwhelming testimony of disinterested witnesses, is shown to have been contrary to tbe facts. These considerations lead us to tbe conclusion that tbe third question alleged to be involved must be determined adversely to tbe contention of tbe appellant.

Tbe charge of tbe court fairly presented to tbe consideration of tbe jury tbe questions upon which they were required to pass, tbe principles of law were correctly stated and tbe references to tbe testimony were free from bias. Tbe suggestion that the charge was inadequate is not well founded.

Tbe judgment is affirmed and it is ordered that tbe appellant appear in tbe court below at such time as be may be there called and that be be committed until he has complied with tbe sentence or any part thereof that was not performed at tbe time this appeal was made a supersedeas.