Commonwealth v. Orr , 138 Pa. 276 ( 1890 )

OPINION,

Me. Chief Justice Paxson:

In the first six assignments of error complaint is made of the charge of the court. The complaint is general, not specifying particular portions of the charge, but averring generally that the defendant’s case was not presented in that clear, fair, and impartial manner in which he was entitled to have it presented; that the minds of the jury were directed to such parts of the testimony as inculpated the defendant, while all reference to the material facts of the defence was omitted, etc. Where it is alleged that the charge as a whole was unfair and one-sided, the better practice is to assign the entire charge as error. In this case we cannot judge of the charge as an entirety, for we cannot well select isolated passages. In Burke v. Maxwell, 81 Pa. 139, all the objectionable passages were quoted in the assignments in totidem verbis. Here the assignments referred to do not quote the language of the charge at all, and if the case depended upon these assignments, we could not consider them. There are numerous other assignments, however, in which the language of the charge is set out, and, as they cover the case pretty fully, we can dispose of it without difficulty.

In view of the magnitude of the case to the defendant we have examined the respective assignments with great care, but we are unable to see anything which we can declare to be error. We find in some instances the expression of a deckled opinion upon the facts, but in no case was there an interference with the province of the jury. We have said in repeated instances that it is not error for a judge to express his opinion upon the facts if done fairly; nay, more, that it' may be his duty to do so in some cases, provided he does not give a binding direction, or interfere with the province of the jury. As an illustration of the comments of the learned judge, the seventh and eighth assignments furnish a fair example, where the court said: “ The doctor’s testimony, I presume, is conclusive evidence, or, if not conclusive, almost conclusive, that very recently something of this kind had taken place with that girl.” And again: “And I presume, gentlemen, from the evidence, you will hardly doubt that she had connection with a man that day. Now who was it? Was there any evidence before the jury pointing to any other person than the defendant as the man with whom she had connection?” All of this was fully justified by the evidence, and, if it bore somewhat hardly upon the defendant, it was his misfortune. It was the weight of the case that pressed heavily upon him, not the charge.

Nor do we find error in those portions of the charge in which he discussed the credibility of the witnesses. It is true, he called the attention of the jury to the interest of the defendant as affecting the question of his credibility. We regard this as perfectly proper; and not only proper, but we think it the duty of the court to do so. The defendant had a vast interest, embracing liberty as well as reputation. While the law now makes him a witness, it leaves his credibility to the jury; and it is but right that their attention should be called to the fact of his interest when they come to weigh the evidence. This is a duty on the part of the court; and it should be performed in every case where the jury have to pass upon the evidence of parties to the suit or of interested witnesses. We would be more disposed to criticise the failure of this duty than its exercise, if done in a fair or impartial manner.

The comments of the court upon the defendant’s evidence to establish an alibi were especially complained of, but we do not think with reason. Upon this matter the learned judge said to the jury: “ On that point, there are a number of witnesses that testify to facts that probably the jury will be satisfied, that many of them at least tell the truth; I mean are honest in their testimony. But their testimony relates to the day and the hour of the day. Now, these áre points where men are most frequently mistaken, and where testimony is the most unreliable. When you call up four or five or six days past, and try to fix some event as occurring on that day, when there was nothing to fix it at the time, it is very uncertain; and more than uncertain is it to try and recollect the exact hour or half hour in the day when you met some person on the street, or when something occurred, with nothing to fix it in your mind at the time.” There is nothing objectionable in this. It accords perfectly with all our experience, and was a proper instruction to the jury under such circumstances. It was not error to give the jury something to guide them in weighing this evidence, and the learned judge was entirely accurate when he told them that fixing the time of a transaction occurring several days before, within an hour, or a half hour, without anything to fix the time, was uncertain.

We do not desire to express an opinion upon the merits of this case further than to say that, after a careful examination of the testimony, we are led to the conclusion that it justified the charge of the court. There is nothing in the case to raise even an inference that the prosecution was brought from an improper motive. The young girl who was the prosecutrix, for anything that appears bore a good character, and made complaint of the outrage on the same day. She was abundantly corroborated in every respect in which corroboration was possible, and, if the jury made a mistake, as was alleged, they have nothing to reproach themselves with in view of the evidence. And, assuming the defendant’s guilt, as we must do, he certainly escaped with a very merciful sentence.'

The judgment is affirmed; and it is now ordered that the defendant, James L. Orr, surrender himself forthwith to the custody of the high sheriff of Allegheny county, for confinement in the Western Penitentiary, in obedience to the sentence of the court below.