Commonwealth v. Orr

• Decision Date: 10 November 1890
• Docket Number: 27
• Citation: 20 A. 866,138 Pa. 276
• Parties: COMMONWEALTH v. JAMES L. ORR
• Court: Pennsylvania Supreme Court

20 A. 866

COMMONWEALTH v. JAMES L. ORR

138 Pa. 276

No. 27

Supreme Court of Pennsylvania

November 10, 1890

Argued October 28, 1890

APPEAL BY DEFENDANT FROM THE COURT OF OYER AND TERMINER OF ALLEGHENY COUNTY.

No. 27 October Term 1890, Sup. Ct.; court below, No. 11 September Term 1889, O. and T.

On November 26, 1889, an indictment, based upon the information of Miss May Kelly and charging James L. Orr with rape and adultery, having been returned a true bill, the defendant pleaded not guilty; the district attorney, similiter and issue.

A jury having been empaneled, testimony was given to the effect that the prosecutrix, about sixteen years of age, was employed in the office of the defendant, a married man thirty-six years of age and a real-estate agent; that the offence was committed about noon on July 25, 1889, the seventh day of the employment; that, on the same afternoon, on the return of another lady employee to the office, she informed the latter of the occurrence, and on going to her home in the evening she informed her mother; that the next day the mother called in a physician who made an examination of the person of the prosecutrix, as to which he testified as a witness. The defendant, as a witness on the stand, denied the commission of the offence, and called witnesses who testified to having seen him upon the street, and at other places, at and about the time it was alleged the offence was committed.

At the close of the testimony, the court, WHITE, P.J., after reviewing the evidence, charged the jury orally, as follows:

The indictment in this case, gentlemen, charges the defendant in the first count with rape, and in the second count with adultery. Rape is the unlawful carnal knowledge of a woman by force and against her will. Adultery is the connection by a married man with some one woman not his wife. Now, on this indictment there may be one of three verdicts. If you believe the defendant not guilty of any crime, the verdict would be "not guilty." If you believe him guilty of the rape, then the verdict would be "guilty as indicted;" and that would cover the rape and adultery because, being a married man, as admitted, if he had connection with the girl, it was adultery; and if it was done forcibly and against her will, it would be rape. Therefore if he is guilty of rape, the verdict should be "guilty as indicted." If you believe from the evidence that he did not use force, but had connection with the girl, the verdict then would be "guilty on the second count of the indictment;" that is, adultery. . . .

A reasonable doubt is a substantial doubt; something that arises out of the evidence in the cause, either because it is insufficient to establish the crime, or because of contradictions in it. A reasonable doubt is where the jury after a calm and careful consideration of all the evidence, cannot come to a satisfactory conclusion; where their minds are kind of wavering; there, there is a reasonable doubt, and that ought to work in favor of a defendant. But, whatever doubts a jury may have during the trial of a cause, whatever doubts you may have when you go to your room, if, after a careful and full consideration of all the evidence, you settle down into a clear and firm conviction of guilt, that is all the law requires, and there is not, in such a case, a reasonable doubt in the sense of the law. [Jurors have no right to doubt as jurors where they do not doubt as men.] . . .

Now, all these are corroborative facts of the testimony of the girl. If you believe the mother and Miss Gannon, when the girl left that morning she was well, in good condition, nothing wrong with her, her clothes clean; when she returned home in the evening, she had evidences of violence to her person, or at least of connection with a man. [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. Now, gentlemen, it is well enough first to consider, was there any violence committed on that girl that day?] Or, had she during that day connection with a man? I speak of that latter part without regard to force. Had she that day connection with some man? There is nothing to contradict the testimony of the girl, or Miss Gannon, or the mother, or the doctor; all of which goes to show that during that day this girl had connection with a man; [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?] There was no evidence of any other young man or married man, or any man, being in the room there with this girl, May Kelly. No evidence that she was outside of that room during that day; and, according to the evidence of May Kelly, and also May Gannon, this must have occurred between 11 o'clock and 2 o'clock on that day. Was there any evidence of her being with any young man or any man during that time, or being out of the office, or any person being in there? I call attention to this, gentlemen, because the evidence is for you, and you are to decide the case upon the evidence. You are the judges of the evidence. You will not take it from me, but you are to decide the case upon the evidence. [It will not do to go to work and imagine evidence upon which you are to decide the case. Was there any evidence of any man being in this office with this girl, or of her being out of that office during that entire time?] . . .

[Now, in the first place, what interest has the prosecutor in making this complaint? It is not a trumped up thing long afterwards. The complaint is made that day, and sworn to the next. Why should she trump up a story of this kind? What interest has she? She gains nothing by the prosecution, but only makes her name come before the public in connection with this proceeding. The defendant is a competent witness, and I believe in the law that permits a defendant to testify, because often a defendant may be able to explain facts and circumstances in a case that no other witness could; and where the defendant explains facts and circumstances, his testimony is entitled to far more consideration than where he simply denies the testimony on the part of the prosecution. A mere denial amounts to very little unless supported by other evidence, because the law presumes he is not guilty, and the plea of "not guilty" puts the commonwealth upon evidence. The jury should always consider the testimony of a defendant. They are not justified in disregarding it. They should consider it, and consider it in the light of the great interest the defendant has in the cause, and the temptation to falsify or conceal the truth, and the greater the interest, the greater the temptation. A jury should also closely scrutinize the manner of the witness's testimony, the manner of giving the testimony, and the manner on the witness stand, not only of the defendant, but of the other witnesses. Where a defendant, for example, is very full and elaborate on matters not essential in the case and simply denies briefly the main thing, it is a matter for the consideration of the jury.]

Now, gentlemen, which of these two parties, apart from all other evidence, would you say tells the truth? Which would you believe of the two, suppose there was no other evidence? The testimony of the little girl, May Kelly, is either true, or she has made up that story wholly without any facts to support it; I mean, taking the testimony of the defendant that he had not anything to do with her. [Suppose she had wanted to make up a story against the defendant, manufacture one, would she have told the story she did here? The ear marks of truth are sometimes those things that do not seem to be essential to a tale, and that seem rather to be inconsistent with it. Often we determine the truth of testimony because of matters of that kind. Sometimes it may seem to be a little improbable, and yet that is an ear mark of truth. Suppose that the little girl had made up the story and intended to put up a job of this kind on Mr. Orr; would she have concocted and told the story she tells us? Suppose she had said (and I merely suggest this by way of illustrating what I mean) that he called her into the back room, locked the door, then seized her, threw her down on the floor, put his hand over her mouth, and violated her person while she was on the floor. That would have been a very simple story, and could not have been easily contradicted, yet she tells a totally different story, -- tells what Mr. Marshall, counsel for the defendant, regards as an almost improbable thing, -- that she was leaning up against the table, and as to what occurred afterwards. Would she have made up such a tale as that, if she had been manufacturing it out of the whole cloth? I merely refer to these things, gentlemen, by way of directing your attention to that, because it is an issue between these two parties, the prosecutor and the defendant.] He utterly denies her whole story that he had anything to do with her, that he used a syringe or anything else, and one of them must be telling what is not true.

[Now look at the other testimony. There are a number of witnesses that...