Commonwealth v. Taylor , 78 Pa. Super. 386 ( 1922 )

Opinion by

Trexler, J.,

Defendants were convicted of felonious entry and larceny. There are eleven assignments of error presented, nine of them directed to the charge of the court. There was only a general exception taken to the charge and therefore only basic fundamental error should be considered: Commonwealth v. Scherer, 266 Pa. 210. We find nothing that would warrant a reversal even if matters involved were properly before us.

It is said that the court charged the jury that if the defendants conspired to commit the offense, they were guilty of it. If we take the entire paragraph in which reference is made to the acts of the defendants, we find that the court in substance charged that all those connected with the crime, all who conspired or confederated to commit it and had guilty knowledge of it, were guilty, although not actually present at the consummation of it. There can certainly be no objection to this instruction. It was entirely proper.

The objection that the court did not define reasonable doubt is equally unfounded. If fuller instructions were desired, request to that end should have been made. It is not a reversible error in a trial, unless the charge is murder, for the court to instruct as to reasonable doubt in the very language of the law and stop with that. If further instructions are refused, that may put another phase to the matter, but as long as counsel impliedly consent by silence to the instructions, they cannot thereafter complain. See Commonwealth v. Berney, 262 Pa. 176.

The court used the words “substantial reasonable doubt.’’ There was warrant for the use of “substantial” in this connection: Commonwealth v. Harman, 4 Pa. 269-274. In that case Chief Justice Gibson stated that a doubt to work an acquittal must be serious and substantial, not the mere possibility of a doubt: Com. v. Hoskins, 60 Pa. Superior Ct. 230.

The other assignments directed to the charge, require no notice, they are without merit.

The learned trial court is charged with error in not allowing counsel for defense to cross-examine the accomplice Piffley, who it is learned since the trial had previously been sentenced to a term of two years in the Allegheny County workhouse. Of course we are bound by tbe record before us and cannot consider tbe question unless properly raised. The question and answer were: Q. “You have been in trouble before?” A. “Been in trouble about thirteen years ago for fighting.” Objection was made to this and sustained on the ground that “fighting” is a mere misdemeanor. The colloquy between the court and counsel related to the proper way of proving the nature of the crime. Whether the court was right or wrong, we have as the matter is presented, only one question before us and that is, was it proper to show that the witness had been in trouble thirteen years before for fighting? Of course, this would not affect his veracity and would throw no light on the question whether the jury should believe him or not: Com. v. Varano, 258 Pa. 442; Com. v. Keegan, 70 Pa. Superior Ct. 436.

The tenth assignment charges the court with abuse of discretion in admitting the testimony of a certain witness in rebuttal. As there was no objection made at the trial this assignment cannot be considered.

All the assignments are overruled.

The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.