Commonwealth v. DePalma

• Decision Date: 26 June 1920
• Docket Number: 294
• Citation: 110 A. 756,268 Pa. 25
• Parties: Commonwealth v. DePalma, Appellant
• Court: Pennsylvania Supreme Court

110 A. 756

268 Pa. 25

Commonwealth v. DePalma, Appellant

No. 294

Supreme Court of Pennsylvania

June 26, 1920

Argued April 12, 1920

Appeal, No. 294, Jan. T., 1920, by defendant, from judgment of O. & T. Luzerne Co., April T., 1919, No. 45, on verdict of guilty of murder of the first degree in case of Com. v. Tony DePalma, alias Tony Palma. Affirmed.

Indictment for murder. Before STRAUSS, J.

The opinion of the Supreme Court states the facts.

Verdict of murder of the first degree, upon which judgment of sentence was passed. Defendant appealed.

Errors assigned were various rulings and instructions set forth in the opinion of the Supreme Court.

The judgment is affirmed and the record remitted to the court below for the purpose of execution.

A. P Conniff and Jos. F. Cohan, for appellant, cited on the question of alibi: Com. v. Andrews, 234 Pa. 597; Briceland v. Com., 74 Pa. 463; Watson v Com., 95 Pa. 418; Turner v. Com., 86 Pa. 54; Rudy v. Com., 128 Pa. 500.

As to the challenge: Com. v. Mosier, 135 Pa. 221; Harrisburg Bank v. Forster, 8 Watts 304; Pinder v. State, 27 Fla. 370.

As to photographs sent out with jury: Udderzook v. Com., 76 Pa. 340.

Arthur H. James, District Attorney, for appellee.

Before BROWN, C.J., STEWART, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE FRAZER:

On January 27, 1919, between 12 and 12:30 a.m., Bronislaw Myskowski was found dead in his bedroom, his throat having been cut with a sharp instrument. Defendant, who lived at a boarding house about six hundred feet distant, was placed under arrest early the same morning charged with committing the crime. The evidence produced on the part of the Commonwealth was wholly circumstantial, the motive being based on an intimacy existing between defendant and the wife of deceased. The jury returned a verdict of murder in the first degree and, after refusal of the court below to grant a new trial, this appeal followed. The numerous assignments of error will be discussed in the order argued by counsel.

The fourth and fifth assignments complain that the trial judge erred in failing to instruct the jury on the meaning of the word "alibi" and as to the burden of proof relating to the defense. Defendant testified he spent the better part of the evening at home and shortly before 12 o'clock went outside for a few minutes and then to bed and slept until awakened by the officers who arrested him. Before retiring he requested his boarding mistress to call him at six o'clock. His statement of the time he retired is corroborated by the woman, and the fact that he was asleep in his bed at the time of his arrest was testified to by the officers. Defendant's boarding house keeper further testified she usually heard the least noise at night and did not hear defendant leave the house after going to his room. It is conceded that defendant did not remain outside the door of his boarding house more than two or three minutes immediately before retiring. In commenting on the testimony offered to establish an alibi, the trial judge did not define to the jury the meaning of the term, nor did he in fact use the word in his instructions, but, in referring to various matters of defense, said: "There are the witnesses who testified to the occurrences at Florio's house on Sunday afternoon. This does not directly bear upon the crime, but it is only given as part of defendant's history, accounting for his whereabouts during the entire day . . . there is the testimony of the two Yanchulas and of Tony himself, as to the time he retired, as to the last they knew about him on Sunday evening, how he remained up until about twelve o'clock, and how he retired, and how he called out to them to wake him in the morning, and how they heard him throw his shoes, or drop his shoes," etc. The court then stated further: "If, after considering all this evidence, you have a reasonable doubt of defendant's guilt, you should acquit the defendant." The court also asked counsel if there was anything further to which they desired reference to be made and in response to a request of counsel the court referred to certain testimony.

The jurors were thus, in effect, instructed that it would be their duty to acquit defendant if his testimony as to his whereabouts was sufficient to create in their minds a reasonable doubt of his having committed the act. This instruction gave him the benefit of all testimony tending to establish an alibi. The mere fact that the court did not specifically instruct that the defense was an alibi and define the meaning of the term to them is not reversible error under the circumstances. The jury must certainly have understood that if they believed the testimony of defendant that he went to bed before twelve o'clock and remained there until near morning, he could not have committed a crime between those hours at another place. The actual affirmative proof of an alibi for the entire time during which the crime was committed, from 12 to 12:30 a.m., rested almost wholly upon the testimony of defendant and upon his credibility. The reference to the matter of defense, though brief, gave defendant every benefit to which he was legally entitled and permitted the evidence of an alibi to warrant an acquittal if it raised in the minds of the jurors a reasonable doubt as to defendant's guilt. This is substantially the rule approved in Briceland v. Commonwealth, 74 Pa. 463, 470.

The eleventh and twenty-first assignments complain of the insufficiency of the charge in defining reasonable doubt. In Commonwealth v. Andrews, 234 Pa. 597, this court stated (page 608) it to be the duty of the trial judge in every murder trial to define to the jury the meaning of the term "reasonable doubt." The trial judge in this case repeatedly stated in his instructions that before there could be a conviction of murder the jurors must be convinced beyond a reasonable doubt that defendant committed the crime, but did not specifically define the phrase except as appears in the part of the charge wherein it was stated that "by reasonable doubt we do not mean the doubt that comes to men to justify themselves in their own eyes in avoiding the performance of a solemn duty and that thereby causes them to set aside their own convictions and to move them away from the aim which they should have ever before them to arrive at a true verdict. No consideration of sympathy, no consideration of any kind should sway the jury, except the desire to arrive at a true verdict, and when moved by these considerations only there remains, after weighing and pondering all the evidence in the case, a reasonable doubt as to the verdict of guilty, that doubt should change the verdict to not guilty." While this definition is in a sense negative, it is not misleading and we cannot say the failure to go further and give an affirmative definition is ground for reversal. It is not reasonable to suppose the jury misunderstood the language quoted, especially in view of the frequent repetition to the effect that the jury must be satisfied beyond a reasonable doubt of defendant's guilt.

The twelfth assignment is to that portion of the charge in which the trial judge...