Commonwealth v. Blose.

CourtSuperior Court of Pennsylvania
Writing for the CourtRENO, Judge.
Citation160 Pa.Super. 165,50 A.2d 742
Decision Date17 January 1947
PartiesCOMMONWEALTH v. BLOSE.

160 Pa.Super. 165
50 A.2d 742

COMMONWEALTH
v.
BLOSE.

Superior Court of Pennsylvania.

Jan. 17, 1947.


Appeal No. 8, March term, 1947, from Judgment and Sentence of Court of Oyer and Terminer and General Jail Delivery, Mifflin County, as of Nos. 1 and 2 October 1945; William W. Uttley, President Judge.

Ellsworth Blose was convicted under first indictment of larceny and receiving and under second indictment of burglary, and he appeals.

Appeal in so far as it was intended to apply to first indictment quashed, and judgment and sentence on second indictment reversed, and new trial awarded.

50 A.2d 743

Paul S. Lehman, of Lewistown, for appellant.

Harold W. Houck, Dist. Atty., and Albert Houck, both of Lewistown, for appellee.

Before BALDRIGE, P. J., and RHODES, HIRT, RENO, DITHRICH, ROSS, and ARNOLD, JJ.

RENO, Judge.

Two indictments were found against appellant; at No. 1 October Sessions, 1945, he was charged with larceny and receiving; and at No. 2 October Sessions, 1945, with burglary. They were tried together, and in separate verdicts he was convicted of all charges. He was sentenced only upon the burglary indictment, and by one appeal he seeks a review of both cases.

At the outset we are obliged to note that his appeal is defective. Where two indictments are tried together, separate verdicts rendered, and sentences imposed, a separate appeal from each judgment must be taken. Com. v. Schollenberger, 17 Pa.Super. 218; Com. v. Falls, 102 Pa.Super. 392, 156 A. 894. Furthermore, no appeal lies unless and until a sentence has been imposed. Com. v. Jung, 86 Pa.Super. 569; Com. v. Torr, 111 Pa.Super. 178, 169 A. 238. Consequently, this appeal can apply only to the burglary charge. So far as it was intended to relate to No. 1 October Term, 1945, it will be quashed.

Since the case must be tried again we shall state only a bare outline of the evidence. On February 26, 1945, the American Legion Country Club, located twentythree miles from Lewistown, Mifflin County, was broken into and ransacked. Among the missing items were five slot machines, a music box and stand, $516 in cash, and 83 bottles of liquor. On March 12, 1945, appellant was arrested at his home at Maryland, and upon his premises were found five slot machines and a music box, and in his automobile four whiskey bottles, two filled, one partially filled, and one empty. Appellant was a former resident of Mifflin County, and had visited Lewistown on the week-end of the burglary. Appellant relied upon an alibi, claiming that during the whole of the night of the burglary he attended a party at the home of his sister-in-law in Klondike, twenty-five miles from the country club. His further defense was that his physical infirmities were such that it was impossible for him to carry and load heavy articles such as slot machines; and, also, that his automobile was too small to transport the stolen articles with his family and certain described personal effects and household furniture. He accounted for the presence of the stolen property upon his premises by the statement that upon his arrival at his Maryland home he was accosted by two soldiers, who said they were friends of his brother, and requested his permission to store the slot machines and music box with him; and for his consent rewarded him with five bottles of whiskey.

I. The Commonwealth called an officer of the Maryland State Police who has aided in apprehending appellant. For that purpose he had used a photograph, and the district attorney asked the witness: ‘Is that photograph which you had an exact likeness of the defendant here?’ The officer answered: ‘He is a little better looking now because it was a penitentiary photograph.’ (Emphasis added). Appellant immediately objected, and moved for the withdrawal of a juror. The motion was overruled, but the court then and in its charge instructed the jury to disregard the testimony. It must be conceded that if the situation was curable by admonition, the instructions were adequate for that purpose.

The only inference which could be drawn from the testimony was that appellant

50 A.2d 744

was a former convict. 1 It was incompetent and highly prejudicial testimony, and although the court in its opinion denying a new trial reports that the case was tried in an ideal atmosphere, without altercation or feeling between appellant's counsel and the district attorney, we are of opinion that its instructions did not and could not eradicate the effects of the statement. The environment of a trial does not furnish a final and infallible criterion by which the impact of prejudicial statements can be judged. Certainly the quiet and dispassionate utterance of a trained and obviously unwarped witness, whose official position would itself inspire confidence, is patently more devastating and lasting than a shrill accusation by a partisan and reviling witness. The testimony must have left a deep and lasting impression of truth, and, for reasons presently to be developed, we cannot confidently assert that the instructions wholly abstracted it from the inter-play of impressions and convictions which generated the...

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19 practice notes
  • Com. v. Commander
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 9, 1970
    ...v. Vogt, 354 Pa. 279, 47 A.2d 195; Dincher v. Great Atlantic & Pacific Tea Company, 356 Pa. 151, 51 A.2d 710; Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742; Herr v. Erb, 163 Pa.Super. 430, 62 A.2d 75. See also Wigmore on Evidence, III, Third Edition, § 1018; Henry, Penna.Evidence, §......
  • Commonwealth v. Barnak.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 3, 1947
    ...cannot be negatived by technical error which has not deprived an accused of his legal right to a fair trial. Cf. Commonwealth v. Blose, 160 Pa.Super. 165, 170, 50 A.2d 742. Discussion of basic principles regarding determination of harmless error by the Supreme Court of the United States in ......
  • Com. v. Young
    • United States
    • Superior Court of Pennsylvania
    • March 31, 1975
    ...125, 289 A.2d 156, 158 (1972), quoting Commonwealth v. Savor, 180 Pa.Super. 469, 119 A.2d 849 (1956), quoting Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742 (1947), quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). (Emphasis supplied.' See al......
  • Com. v. Wadley
    • United States
    • Superior Court of Pennsylvania
    • September 26, 1951
    ...and a new trial is awarded. --------------- 1 Quoted with approval: Com. v. Barnak, 357 Pa. 391, 423, 54 A.2d 865; Com. v. Blose, 160 Pa.Super. 165, 170, 50 A.2d 742; Com. v. Roberts, 161 Pa.Super. 548, 555, 55 A.2d 577; Com. v. Sarkis, 164 Pa.Super. 194, 201, 63 A.2d 360. 2 The effect of t......
  • Request a trial to view additional results
19 cases
  • Com. v. Commander
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 9, 1970
    ...v. Vogt, 354 Pa. 279, 47 A.2d 195; Dincher v. Great Atlantic & Pacific Tea Company, 356 Pa. 151, 51 A.2d 710; Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742; Herr v. Erb, 163 Pa.Super. 430, 62 A.2d 75. See also Wigmore on Evidence, III, Third Edition, § 1018; Henry, Penna.Evidence, §......
  • Commonwealth v. Barnak.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 3, 1947
    ...cannot be negatived by technical error which has not deprived an accused of his legal right to a fair trial. Cf. Commonwealth v. Blose, 160 Pa.Super. 165, 170, 50 A.2d 742. Discussion of basic principles regarding determination of harmless error by the Supreme Court of the United States in ......
  • Com. v. Young
    • United States
    • Superior Court of Pennsylvania
    • March 31, 1975
    ...125, 289 A.2d 156, 158 (1972), quoting Commonwealth v. Savor, 180 Pa.Super. 469, 119 A.2d 849 (1956), quoting Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742 (1947), quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). (Emphasis supplied.' See al......
  • Com. v. Wadley
    • United States
    • Superior Court of Pennsylvania
    • September 26, 1951
    ...and a new trial is awarded. --------------- 1 Quoted with approval: Com. v. Barnak, 357 Pa. 391, 423, 54 A.2d 865; Com. v. Blose, 160 Pa.Super. 165, 170, 50 A.2d 742; Com. v. Roberts, 161 Pa.Super. 548, 555, 55 A.2d 577; Com. v. Sarkis, 164 Pa.Super. 194, 201, 63 A.2d 360. 2 The effect of t......
  • Request a trial to view additional results

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