Commonwealth v. Radzinowicz , 39 Pa. Super. 173 ( 1909 )

Opinion by

Porter, J.,

The appellant has not printed in his paper-book the indictment upon which he was tried in the court below, but we may gather from the charge of the court and the printed argument of the counsel that the indictment contained three counts, the first charging felonious assault and battery, the second count charging that the defendant did cut, stab and wound the prosecutor, being drawn under sec. 98 of the Act of March 31, 1860, P. L. 427; and the third count charging an assault and battery. That part of the charge of the court which is the subject of the first specification of error withdrew the first count of the indictment from the consideration of the jury, but it did not, as contended by counsel for the appellant, withdraw from the consideration of the jury the third count of the indictment, for the language of the court in withdrawing the first count and directing the jury what they were to consider was express and positive; “leaving the other two counts, namely, aggravated assault and battery and simple assault and battery.” While the court in designating the offense charged in the second count used the term “aggravated assault and battery,” which while well understood in common parlance is not strictly speaking a legal definition of any offense, the jury could not have understood it as referring to anything but the offense which was in legal language charged in the second count of the indictment. The appellant certainly was not injured by the action of the court in withdrawing from the consideration of the jury the first count which charged the act as a felony, a conviction under which would have been a matter more serious than was the charge upon which he was found guilty. We have examined the evidence and are by no means convinced that a conviction of the more serious offense might not have been sustained. The language of the court in submitting the second and third counts of the indictment left the jury free, under the evidence, to determine the offense of which the defendant was guilty, if guilty of any offense. In thus submitting these counts the court said: “ I may say, however, that you may well disregard the third count as well as the first, because if there was perpetrated upon this prosecutor, at that time, an assault and battery, and if the defendant should be convicted upon this indictment at all, he should be convicted of aggravated assault and battery under the testimony here.” This language still left the jury free to pass upon the offense, as charged in the second and third counts, and was nothing more than the expression of an opinion of the court as to the nature of the injury which had been inflicted upon the prosecutor. This language of the court is to be considered in the light of the issue of fact presented by the evidence. The commonwealth had called two witnesses who testified that they had seen a knife in the hand of the defendant and had seen him stab the prosecutor with that knife, and had also produced other witnesses who testified as to the character of the cut which had been made in the arm of the prosecutor. The defendant denied that he had used a knife and testified to circumstances from which his counsel at the trial contended that a jury might infer that the cut in the arm of the prosecutor had been made by the breaking of a beer glass, which the defendant held in his hand and interposed to ward off an attack by the prosecutor. The fact in dispute was whether the defendant had stabbed the prosecutor with a knife. If he had he was guilty of the offense charged in the second count of the indictment, if of any offense. If the jury believed the testimony of the defendant he was not guilty of an offense, but if they believed the testimony of the commonwealth the only offense of which he was guilty was stabbing the prosecutor with a knife. The evidence being of this character, it was proper for the court, while leaving the jury free to pass upon the second and third counts of the indictment, to indicate to the jury the opinion of the court as to which count of the indictment properly charged the offense, in case they found the defendant guilty: Commonwealth v. Sutton, 205 Pa. 605; Commonwealth v. Sheets, 197 Pa. 69; Commonwealth v. Curcio, 216 Pa. 380. The first specification of error is overruled.

The only question of fact upon which a direct and positive issue was raised by the evidence in the case was as to whether this defendant did with a knife stab the prosecutor. That question was in a fair, full and adequate charge submitted to the jury. The jury were, in effect, instructed that unless they found beyond a reasonable doubt that the defendant had with a knife stabbed the prosecutor, the verdict must be not guilty. The defendant had produced no evidence which, if believed, would have justified or excused the use of a knife or other deadly weapon. If he used a knife that use was, under thn evidence, unlawful, and the injury thereby inflicted was an unlawful cutting and wounding. The theory advanced at the trial by the defendant was that the prosecutor must have been cut by a glass, which the defendant held in his hand. This was theory almost exclusively, for the evidence to support it was' very slight. The defendant did testify that he held a beer glass in his hand, which he interposed when the prosecutor attempted to throw a small glass at him, but, although directly interrogated upon the point, he would not say whether the glass which he so held had been broken. No other witness testified that the defendant had even had a glass in his hand, or had attempted to shield himself with it from any attack. The court submitted this question to the jury, and fairly stated the contention of the defendant under the evidence. The defendant complains that in submitting the question to the jury the court made this comment upon the evidence: “The theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife or with a glass.” While thus expressing an opinion upon this branch of the evidence, the court expressly instructed the jury that the weight and effect of this evidence was for them; “ Of course, it is for you to say. The extent to which a trial judge ought to go in reviewing, analyzing and commenting on testimony depends very largely upon the circumstances of the case, and to some extent, upon the line of argument pursued by counsel in addressing the jury. Generally it must be left to a sound discretion. It is only in exceptional cases, as, for example, where it plainly appears that a charge is so inadequate in this regard as to be misleading, or where its tendency as a whole is to unduly magnify the importance of the proofs introduced by one party and to belittle those introduced by the other party, that the court will be reversed upon a general exception of this nature:” Commonwealth v. Penrose, 27 Pa. Superior Ct. 101. We have examined the evidence and are of opinion that the comment of the learned judge of the court below upon the contention of the defendant, as to the probability of the injury to the prosecutor having been caused by a broken beer glass, was fully warranted by the testimony and within the line of his duty. The testimony of the defendant was fairly submitted to the jury, the comment of the court upon the testimony was fully warranted by its character, and the jury were left free to draw their own conclusion. The second, third and fourth specifications of error are dismissed.

The offer of the defendant to prove that the licensed saloon keeper, in whose barroom the prosecutor had been wounded, had shortly after the stabbing visited the prosecutor at the hospital and, without any consent or knowledge of the defendant, made a settlement of the case with the prosecutor and obtained a complete and full release of all actions he might have against the defendant, was properly rejected. The Act of March 31, 1860, P. L. 427, sec. 9, authorizes the settlement of certain classes of cases “ if the party complaining shall appear before the magistrate who may have taken recognizance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage,” and authorizes “the magistrate, in his discretion, to discharge the recognizance which may have been taken for the appearance of the defendant, or in case of committal to discharge the prisoner, or for the court also where such proceeding has been returned to the court in their discretion to order a nolle prosequi to be entered on the indictment, as the case may require, upon payment of costs.” This statute confers upon magistrates and courts a discretion to approve or disapprove of settlement of cases which come within its provisions: Commonwealth v. Carr, 28 Pa. Superior Ct. 122. We know of no statute which confers a like authority upon a barkeeper, even though he may be the holder of a license authorizing him to sell liquor. The very terms of this offer of evidence showed that the defendant charged was no party to the settlement and that it was made without his knowledge or consent. The fifth specification of error is dismissed.

The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by said court committed to serve that portion of his term of imprisonment which had not expired at the time this appeal was made a supersedeas.