Commonwealth v. DePalma

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtFrazer
Citation268 Pa. 25
PartiesCommonwealth <I>v.</I> DePalma, Appellant.
Decision Date26 June 1920
268 Pa. 25
Commonwealth
v.
DePalma, Appellant.
Supreme Court of Pennsylvania.
April 12, 1920.
June 26, 1920.

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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.

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

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.

OPINION BY MR. JUSTICE FRAZER, June 26, 1920:


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

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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

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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...

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12 practice notes
  • Com. v. Richardson
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 2, 1958
    ...v. Crossmire, 156 Pa. 304, 308, 27 A. 40; Com. v. Nye, 240 Pa. 359, 370, 87 A. 585; Com. v. Eagan, 190 Pa. 10, 42 A. 374; Com. v. DePalma, 268 Pa. 25, 110 A. We find no abuse of discretion by the trial Court, and there is no merit in any of defendant's aforesaid contentions. The third and m......
  • Commonwealth v. Vallone.
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 30, 1943
    ...3 for example: Commonwealth v. Aston, 227 Pa. 112, 75 A. 1019; Commonwealth v. Ballon, 229 Pa. 323, 78 A. 831; Commonwealth v. De Palma, 268 Pa. 25, 110 A. 756; Commonwealth v. Carelli, 281 Pa. 602, 127 A. 305; Commonwealth v. Rose, 327 Pa. 220, 193 A. 17; Commonwealth v. Turza, 340 Pa. 128......
  • Com. v. Fletcher
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 12, 1956
    ...308, 27 A. 40; Commonwealth v. Nye, 240 Pa. 359, 370, 87 A. 585; Commonwealth v. Eagan, 190 Pa. 10, 42 A. 374; Commonwealth v. De Palma, 268 Pa. 25, 110 A. We find no merit in any of the defendant's contentions. Judgment affirmed. ...
  • Com. v. McGrew
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 17, 1953
    ...v. Nye, 240 Pa. 359, 370, 87 A. 585; Commonwealth v. Page 471 Eagen, [375 Pa. 526] 190 Pa. 10, 42 A. 374; Commonwealth v. DePalma, 268 Pa. 25, 110 A. What we have just said disposes of defendant's contentions that the Court erred in refusing to sustain defendant's two challenges for cause. ......
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12 cases
  • Com. v. Richardson
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 2, 1958
    ...v. Crossmire, 156 Pa. 304, 308, 27 A. 40; Com. v. Nye, 240 Pa. 359, 370, 87 A. 585; Com. v. Eagan, 190 Pa. 10, 42 A. 374; Com. v. DePalma, 268 Pa. 25, 110 A. We find no abuse of discretion by the trial Court, and there is no merit in any of defendant's aforesaid contentions. The third and m......
  • Commonwealth v. Vallone.
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 30, 1943
    ...3 for example: Commonwealth v. Aston, 227 Pa. 112, 75 A. 1019; Commonwealth v. Ballon, 229 Pa. 323, 78 A. 831; Commonwealth v. De Palma, 268 Pa. 25, 110 A. 756; Commonwealth v. Carelli, 281 Pa. 602, 127 A. 305; Commonwealth v. Rose, 327 Pa. 220, 193 A. 17; Commonwealth v. Turza, 340 Pa. 128......
  • Com. v. Fletcher
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 12, 1956
    ...308, 27 A. 40; Commonwealth v. Nye, 240 Pa. 359, 370, 87 A. 585; Commonwealth v. Eagan, 190 Pa. 10, 42 A. 374; Commonwealth v. De Palma, 268 Pa. 25, 110 A. We find no merit in any of the defendant's contentions. Judgment affirmed. ...
  • Com. v. McGrew
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 17, 1953
    ...v. Nye, 240 Pa. 359, 370, 87 A. 585; Commonwealth v. Page 471 Eagen, [375 Pa. 526] 190 Pa. 10, 42 A. 374; Commonwealth v. DePalma, 268 Pa. 25, 110 A. What we have just said disposes of defendant's contentions that the Court erred in refusing to sustain defendant's two challenges for cause. ......
  • Request a trial to view additional results

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