Commonwealth v. Robzin , 78 Pa. Super. 290 ( 1922 )

Opinion by

Keller, J.,

The appellants, together with William Pezzner (March Term, 1922, No. 31), were convicted of having feloniously entered the dwelling house of one Simon Matulavicz and stolen three barrels of whiskey, one of which he had bought of Robzin and Pezzner a few days before. The conviction was set aside as to Pezzner, because on cross-examination the district attorney was permitted to ask him “Were you ever in the bootlegging business?” contrary to the provisions of the Act of March 15, 1911, P. L. 20. See opinion this day filed. We are urged to make the same ruling as to the other defendants. The assignments of error fail to set forth, however, that this question or any similar improper one was asked of any of the defendants except Pezzner. Moreover, Pezzner was the only defendant who did not offer character testimony. The Act of 1911 excepts from its provisions, inter alia, cases where the defendant gives testimony tending to prove his own good character or reputation: Com. v. Burke, 74 Pa. Superior Ct. 320; Com. v. Dietrich, 65 Pa. Superior Ct. 599. The Act of 1911 does not apply to witnesses who are not defendants. As to them the practice approved in Com. v. Racco, 225 Pa. 113, and Com. v. Payne, 242 Pa. 394, 401, has not been changed and the witness may yet be interrogated as to his conviction of such an offense as affects his credibility: Com. v. Varano, 258 Pa. 442, 446; Marshall v. Carr, 271 Pa. 271, 274 ; 2 Wigmore on Evidence, section 980 (5). It was not improper to permit inquiry into the situation, associates and occupation of witnesses produced to swear to the good reputation of the accused: 1 Greenleaf on Evidence, section 456; Annotation, 1 A. L. R. 1402; 3 Ency. of Evidence, 759, 760. If they were themselves persons of doubtful character, if they were engaged in the illegal sale of whiskey unlawfully obtained, it was proper for the jury to know of it in passing upon the effect to be given their testimony. The second, third, fourth and fifth assignments of error are overruled.

We are not convinced that the testimony complained of in the sixth, seventh and eighth assignments of error did not tend to rebut the evidence of the defendants; but even if it was more properly admissible in chief, its reception in rebuttal was not reversible error: Com. v. Bell, 166 Pa. 405, 413; Carroll v. Com., 84 Pa. 107; Com. v. Gormley, 78 Pa. Superior Ct. 294, filed this day.

The prosecutor having testified on cross-examination that when taken to Pezzner’s store by the chief of police and confronted by Robzin and asked if the latter had been at his place the day the whiskey was stolen he had replied “No,” it was entirely proper to permit him to state on redirect examination that he had been instructed by the chief beforehand to make such answer, in order that Robzin might not become frightened and run away. The credibility of the testimony was for the jury. The tenth assignment is overruled.

The court properly instructed the jury that in passing upon the guilt or innocence of these defendants they need not concern themselves as to the lawfulness of the prosecutor’s purchase of the whiskey. Whether in securing the whiskey he was guilty of a violation of the federal laws or not, it furnished no justification to the defendants for feloniously entering his home and stealing it, and constituted no defense to the crimes charged. His possession of the whiskey was sufficient to support the indictment. The twelfth, thirteenth, and fourteenth assignments are overruled.

We cannot agree that the charge as a whole was inadequate, intemperate, argumentative, and unfair, as charged in the eleventh assignment of error. The trial judge correctly defined the crimes for which the defendants were indicted. He was fair in presenting the theory of the defense and in his review of the testimony. It was not improper for him to explain that it was not necessary, in order to convict, that all the defendants should have been identified at the trial by both the prosecutor and his wife, provided they were satisfied beyond a reasonable doubt from the testimony of either of them, that they were present and were concerned in taking the whiskey; that their failure to agree in every particular of their testimony did not prove that the story was made up or concocted. The charge, as respects the legal issues raised by the defense, — separate alibis, — conformed approximately to the language used in Rudy v. Com., 128 Pa. 500, 503-5, which was said by the Supreme Court to constitute “a full, clear and accurate statement of the law on the subject,” p. 507. The instructions as to good character were in accord with the decisions of the Supreme Court. The subject of reasonable doubt was explained fully and accurately and the jury were instructed that the burden of proving the guilt of the defendants rested throughout on the Commonwealth and if after considering all the evidence they had a reasonable doubt as to their guilt, they must acquit. It was not improper to refer at some length to the gravity of the offense and the frequency of its occurrence in present conditions, and to the necessity for the upholding and enforcement of the law. The charge was earnest, but not intemperate, as in Linn v. Com., 96 Pa. 285. The trial judge said nothing that could be interpreted as an intimation, much less as an expression, of his opinion upon the guilt or innocence of the defendants. He did not even express any opinion upon the facts, as, it has been held, he may do, if they are properly referred to the jury: Ditmars et al. v. Com., 47 Pa. 335. He did not usurp the functions of the jury nor interfere with their province: Com. v. Orr, 138 Pa. 276; Com. v. Winkelman, 12 Pa. Superior Ct. 497.

The remaining assignments need not be referred to. They are all overruled. The judgments are affirmed and it is ordered that the several defendants appear in the court below at such times as they may be respectively there called and that they be by that court committed until they have complied with their respective sentences or any part thereof that had not been performed at the time the several orders of supersedeas were entered.