Commonwealth v. Danaleczk

• Decision Date: 28 April 1925
• Docket Number: 58-1925,63-1925,59-1925,60-1925,62-1925,61-1925
• Citation: 85 Pa.Super. 253
• Parties: Commonwealth v. Danaleczk, et al., Appellants
• Court: Pennsylvania Superior Court

85 Pa.Super. 253

Commonwealth v. Danaleczk, et al., Appellants

Nos. 58-1925, 59-1925, 60-1925, 61-1925, 62-1925, 63-1925

Superior Court of Pennsylvania

April 28, 1925

Argued March 9, 1925

Appeals from the sentence of O. and T. Northumberland Co.-1924, Nos. 50 and 50 1/2, in the case of Commonwealth v Joseph Danaleczk, Enoch Stavinski, William Kritvitski Charles Petrovich, Adam Polack.

Indictment for rape. Before Lloyd, J.

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

Verdict of guilty on which judgment of sentence was passed. Defendants appealed.

Error assigned was, the refusal to grant separate trials, in allowing testimony to be admitted in rebuttal as to the witness Anna Wasko, and refusal to withdraw a juror because of remarks of the district attorney.

L. S Walter, and with him J. A. Welsh, for appellants. -- The defendants were entitled to separate trials: 10 Encyc. of Pleading and Practice, 548; Withers v. The Commonwealth, 5 S. & R. 59.

It was error to admit testimony in regard to the witness Anna Wasko, as it was collateral to the issue of the trial: 1 Greenl. on Ev., 448; Griffith v. Eschleman, 4 Watts, 51; Elliott v. Boyles, 7 Casey 65; Commonwealth v. Grauman, 52 Pa.Super. 215, 218.

S. L. Gribbin, and with him D. W. Kearney, and Edward Raker, District Attorney, for appellee. -- Simultaneous trial on two indictments charging a felony is warranted, where both offenses were committed under similar circumstances: Com. v. Brown, 264 Pa. 85; Com. v. Valotta, 279 Pa. 84; Fulmer v. Com., 97 Pa. 503.

It was proper to admit evidence to rebut the attack on the character of the witness, Anna Wasko: Batdorff v. The Farmers' National Bank of Reading, 61 Pa. 179; Com. v. House, 6 Pa.Super. 92; Johnson v. Com., 115 Pa. 369; Smith v. Stoner, 243 Pa. 57; Van Eman v. Fidelity & Casualty Company of New York, 201 Pa. 537.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

PORTER, J.

These defendants were all charged, in a single information, with having committed the crime of felonious rape upon Agnes Wasko and with having committed a like offense upon Nellie Madera and were, after a hearing, held to answer the charge. Two indictments, based on the same information, were found by the grand jury, in one of which all the defendants were charged, in proper form, with the rape of Agnes Wasko; and the other indictment charged a like offense to have been committed upon Nellie Madera. The indictments were tried together and the trial resulted in a conviction of Kritvitski, Petrovich and Stavinski upon the indictment charging the ravishing of Agnes Wasko; and Danaleczk, Pollack and Stavinski were found guilty upon the indictment charging the ravishing of Nellie Madera. The defendants having been severally sentenced, save that sentence was suspended as to Stavinski in the case in which the indictment charged the rape of Agnes Wasko and he was sentenced only upon the indictment charging the rape of Nellie Madera, have taken these several appeals.

The court overruled an objection interposed by the defendants to the trial of the indictments at the same time, to which ruling the defendants excepted and here assigned it for error. We have thus presented the question, Can two indictments charging separate felonies, rape upon different girls, be tried before one jury against defendants' objection? We cannot regard the question, as thus broadly stated, to be an open one in Pennsylvania. Two indictments which upon the face of the pleadings charge separate and distinct felonies may be tried before one jury: Com. v. Valotta, 279 Pa. 84, 123 A. 681. The appellants in their brief seem disposed to challenge the correctness of that decision of the Supreme Court, but this court has neither the authority nor the inclination to depart from the principles laid down by our court of last resort. The propriety of trying two indictments of this character before the same jury is a matter in which the trial court is invested with discretion and the ruling of that court will not be reversed unless it is made clearly to appear that the rights of the defendants have been thereby prejudiced. The indictments in the present case were founded upon an information which charged the offenses to have been committed by all of the defendants, at the same time and place. An examination in detail of the evidence at the trial upon these two indictments has convinced us that no evidence was presented by the Commonwealth which would not have been competent and material at a separate trial upon each of the indictments. The evidence produced by the Commonwealth, if true, established that the two girls with Anna Wasko, the sister of Agnes, were standing by the road waiting for an electric car to take them home, when three of the defendants in an automobile approached and offered to take them to their homes in the car, and the girls consenting to go home in this manner, entered the automobile. It was necessary to make a detour, owing to the condition of the direct road, and the defendants at a lonely place in the woods pretended that something had gone wrong with the automobile, from which they all descended. The three men spent considerable time pretending to try to fix the automobile when they were joined by the other two defendants at this lonely place in the woods. Two of the defendants dragged Agnes Wasko from the road into the bushes and there ravished her, while two others did the same with Nellie Madera. The fifth defendant prevented Anna Wasko, who was older than the others, from going to the assistance of the other girls when they screamed for help. Taking into consideration the time of the night, the lonely place where the offense was committed and all the circumstances in the case, the jury would have been warranted in finding...