Commonwealth v. English

• Decision Date: 18 July 1936
• Docket Number: 80-1936
• Parties: Commonwealth v. English, Appellant
• Court: Pennsylvania Superior Court

186 A. 298

123 Pa.Super. 161

Commonwealth v. English, Appellant

No. 80-1936

Superior Court of Pennsylvania

July 18, 1936

Argued April 13, 1936

Appeal by defendant, from judgment of M. C. Phila. Co., October Sessions, 1935, No. 1241, in case of Commonwealth v. Lawrence P. English.

Indictment for fornication and bastardy. Before Brown, J.

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

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were various parts of charge.

Judgment reversed with a new trial.

Jay W Sechler, for appellant.

Abraham Berkowitz, with him John H. Maurer, Assistant District Attorneys, and Charles F. Kelley, District Attorney, for appellee.

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

OPINION

Parker, J.

The defendant, Lawrence P. English, was convicted and sentenced on a charge of fornication and bastardy. On this appeal he urges as reasons for a new trial that the court incorrectly charged the jury as to the weight of evidence with relation to good character and that the court erred in its rulings in connection with a motion of defendant requesting the court to direct the private prosecutor to submit herself and her child for blood grouping tests intended to determine that defendant was not the father of the child.

Two witnesses were called by the defendant and after qualifying to express an opinion they respectively testified that the reputation of defendant for morality and general good conduct was splendid and excellent. The district attorney then stipulated that three other witnesses, if called, would give similar testimony. The court refused to charge on the subject of character evidence as requested by defendant in its second point which was as follows: "2. In considering whether or not this defendant is guilty of the charge brought against him, the jury must consider the evidence as to the defendant's good reputation for morality, and if the jury finds that the defendant's reputation is of such a character that the jury believes it was unlikely that he would commit the offense charged, the verdict must be in favor of the defendant." The court however did attempt to cover the subject in the general charge where this language was used: "As to the character of the defendant, there is no question about that. It does not necessarily follow that a person of good character will not give way to the passion of another if opportunity offers it . . . . It is purely a question of whether you believe her story that intercourse did take place on the two occasions as she tells you. If you believe that testimony then you must find the defendant guilty." In addition to this statement of the law, the court made a remark that constituted a serious error and completely negatived the effect of the character evidence. The defendant's second character witness had just completed his direct testimony when the trial judge interposed this remark: "Counsellor, that doesn't enter into it at all." A few moments later the trial judge further said: "Probably in the best majority of these cases where men are charged with fornication and bastardy we would necessarily admit good character. It is just a momentary impulse at times that causes the danger. We haven't any doubt about the character of the man. It is a question of whether he did this particular thing."

The court did not err in refusing defendant's second request for charge, for the latter part of that point is not a correct statement of the law. It requested the court to say that if they found that defendant's reputation was of such character that they believed it was unlikely that defendant did commit the offense, then the verdict must be in favor of defendant. In support of that proposition, counsel for the appellant cites Com. v. Logan, 76 Pa.Super. 167, but that case gives no support to defendant's contention. The objection to the point as phrased by counsel is that it tended to leave with the jury the impression that they might ignore everything but character evidence in arriving at a verdict and decide the case solely on the character evidence. In the leading case of Com. v. Andrews, 234 Pa. 597, 605, 83 A. 412, quoting from Com. v. Cleary, 135 Pa. 64, 19 A. 1017, the Supreme Court said: "Evidence of good character is always admissible for the defendant in a criminal case; it is to be weighed and considered in connection with the other evidence in the cause, -- it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal." The extent to which the appellate courts have gone is to say that such evidence is substantive evidence and may create a reasonable doubt which would entitle accused to an acquittal, but they have not said that all other evidence is to be ignored. Counsel, in framing the point, attempted to improve the language of the Supreme Court with the usual result. It is much better to stick to the beaten path.

However, the trial court erred to the same extent. The effect of the charge taken with the remarks to the jury was to minimize if not completely negative the uncontradicted evidence that prior to this charge the defendant bore an excellent reputation for morality. The appellate courts have said again and again that such evidence is substantive evidence and must be considered. The appellee attempts to justify the judgment on the ground that specific exceptions were not taken to the charge but only to the refusal of defendant's point. Not only was the error a fundamental one, but the attention of the court was specially called to the subject by the point in question. As he had a right to do, he attempted to cover the matter in his comments and charge. However, we cannot overlook the error: Com. v. Andrews, supra; Com. v. Stein, 305 Pa. 567, 571, 158 A. 563; Com. v. Logan, supra. In the Stein case a failure to charge as to evidence as to an alibi was held error, although no specific request was made for instructions on that subject.

The accusation made against the defendant is one that is difficult to defend. The defense here consisted largely of the unsupported denial of the accused with little opportunity for corroborating his testimony by collateral facts. In such cases evidence of good reputation is of special importance if not to establish the innocence of the defendant at least to create a reasonable doubt in the minds of the jury. Such evidence is always admissible and must be considered by the jury. The effect of the remarks of the court during trial and in the charge was to deprive the defendant of the benefit of this testimony.

There are two additional assignments of error not essential to determination of this appeal but which, in view of the fact that they will probably arise on a retrial of the case, should be considered. Each of these assignments involve certain scientific blood tests claimed to have some probative value in determining the paternity of a child. After the jury was sworn defendant presented a written motion to which was appended an affidavit verifying statements of fact contained therein. The motion averred that the defendant desired to have the benefit of scientific evidence bearing on the paternity of the bastard child, which tests are known as the Landsteiner and related tests, to be made of samples of the blood of the complaining witness and of the blood of her infant child. The motion set forth the general nature of these tests and the standing of such proofs as they were considered by the medical profession. The prayer was that the court make an order directing Isabelle Creighton to submit herself and her child for blood grouping tests of their blood and the defendant's blood by or under the supervision of a qualified physician approved by the court, the results of such tests to be admitted in evidence on the question of the defendant's paternity or non-paternity, and that the court continue the trial of the case pending the taking of such tests. The trial court properly refused the motion. It was not an abuse of discretion to refuse to continue the case after the jury had been sworn: 17 C. J. 1056; 14 R. C. L. 711.

We are however of the opinion that if the petition had been presented earlier it would have been the duty of the court to refuse the motion. It may be assumed that the taking of the necessary blood, only a few drops, from the veins of each would not ordinarily be accompanied by any serious danger to the health of persons operated on. It is not claimed by appellant or any of the medical authorities that the proposed tests will determine the paternity of the child, but the claim is...