Commonwealth v. Attarian

• Decision Date: 10 November 1937
• Docket Number: 186-1937,187-1937
• Citation: 194 A. 776,129 Pa.Super. 31
• Parties: Commonwealth v. Attarian, Appellant. Commonwealth v. Tashjian, Appellant
• Court: Pennsylvania Superior Court

194 A. 776

129 Pa.Super. 31

Commonwealth v. Attarian, Appellant.

Commonwealth v. Tashjian, Appellant

Nos. 186-1937, 187-1937

Superior Court of Pennsylvania

November 10, 1937

Argued September 28, 1937

Appeals from judgments and sentences of Q. S. Phila. Co Oct. Sessions, 1936, No. 147 (in Appeal No. 186) and July Sessions, 1936, No. 428 (in Appeal No. 187), in cases of Commonwealth v. Varcy Attarian; and Commonwealth v. Leon Tashjian.

Indictments for adultery. Before Lesher, P. J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdicts of guilty and judgments and sentences thereon. Defendants appealed.

Error assigned, among others, was dismissal of motions for new trial.

Judgments affirmed.

Edward Watson, with him Harry G. Tarrington and Wm. H. Redheffer, Jr., for appellants.

Charles F. Kelley, District Attorney and John P. Boland, Assistant District Attorney, for appellee, were not heard.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Keller, P. J.

The statement of questions involved in this appeal -- which limits the scope of our review, (Rule 50) -- raises two questions which may be restated, in an abridged form, as follows:

1 -- Whether, on the trial of two persons for adultery with each other, the uncorroborated testimony of a private detective, hired by the wife of the male defendant, as to facts which, if true, establish the guilt of the defendants, is sufficient to take the case to the jury, where the defendants deny the charge and are supported, in some points of their denial by other positive evidence?

2 -- Whether, where a verdict of guilty is rendered on such testimony, it should be set aside and a new trial granted?

1 -- The weight to be given testimony is ordinarily a matter for the jury, not the court, in criminal, as well as in civil cases; and if a jury, on consideration of all the evidence, is satisfied beyond a reasonable doubt, from the uncorroborated testimony of a private detective, that the defendants committed adultery at the times and in the place testified to by him, they may find them guilty, notwithstanding the defendants positively deny his testimony and produce outside evidence to support their denial. The attending circumstances may lead the jury to believe him rather than the defendants and their witnesses. There is no rule of law or public policy that classes a private detective along with the confessed accomplice of a criminal and requires the jury to be warned that it is not safe to convict on his uncorroborated testimony. His credibility, as that of all witnesses, is for the jury. Extracts from opinions in divorce cases -- where, it must be remembered, it is our function to determine the facts as well as apply the law to the facts so found -- in which we have stated our reasons for not accepting the evidence of certain private detectives who testified as witnesses, are not to be adopted as expressions of a general ruling by us that their testimony, of itself, is unworthy of belief and must be corroborated in order to support a conviction. We held the contrary in Naylor v. Naylor, 59 Pa.Super. 547, 561, where the "master concluded his detailed recital of the testimony, not with a distinct finding that the facts testified to by libellant's witnesses were not sufficient to warrant the divorce (he could not have found that) nor with a finding that he disbelieved their testimony, but with this statement: 'His reason, however, for recommending that the prayer of the libel be dismissed is based upon the fact that the testimony on which he is asked to make a finding in favor of the libellant and against respondent, consists mainly of the testimony of hired detectives.'" President Judge Rice speaking for this Court said: "This was not a valid reason for refusing the divorce. There is no fixed rule of law or public policy which forbids the granting of a divorce upon the testimony of hired detectives. There are good reasons why such testimony should be scrutinized with great care, and according to dicta in textbooks and decisions it should be regarded with suspicion. The nature of the occupation and the interest which the hired detective has, arising out of his natural desire to please his employer, are reasons why a conscientious and prudent judge will scrutinize his testimony with great care before making it the basis of a decree dissolving the marriage tie. But if by reason of its volume, its clear, distinct and positive nature, the harmony of each of its parts with the others, and its harmony as a whole with the other facts in the case, the testimony induces an abiding conviction of its truth, it is impossible to see why the court should not act upon it." The same thing may be said of a criminal prosecution for adultery, with the addition that in such case in order to convict the defendant the jury...