Commonwealth v. Foley
| Citation | 24 Pa.Super. 414 |
| Decision Date | 14 March 1904 |
| Docket Number | 16-1904,17-1904 |
| Parties | Commonwealth v. Foley, Appellant |
| Court | Superior Court of Pennsylvania |
Argued December 14, 1903
Appeals by defendant, from judgment of Q. S. Allegheny Co. on verdict of not guilty in case of Commonwealth v. Frances Foley.
Indictment for selling liquor without a licence, selling liquor on Sunday, and keeping a disorderly house. Before Evans, J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty upon which judgment of sentence was passed.
Error assigned was in overruling motion in arrest of judgment.
John Marron, of Marron & McGirr, for appellant. -- The appellant was actually on trial on the two indictments in these appeals, as well as the indictment on which there was a verdict of not guilty, and " neglected and refused" to offer herself as a witness against these two indictments as well as against the third, and the reference of the district attorney to her refusal to testify was made during the trial of the two indictments as well as the third, and called the attention tending to create a presumption against her on these two indictments as well as on the third indictment: Com. v. Bell, 20 Pa. C.C. & Repr. 223.
Wm. D Grimes, assistant district attorney, with him John C. Haymaker, district attorney, for appellee. -- In various states having a statute substantially the same as that in Pennsylvania, and providing that the failure of a defendant to offer himself as a witness, shall not be treated as creating any presumption against him, or be adversely referred to by the court or counsel during the trial, casual, indirect and unintentional remarks made by counsel for the commonwealth have not been considered sufficient grounds for reversal: Green v. State, 31 S.W. 386; People v. McGrath, 5 Utah 525 (17 P. 116); State v. Weddington, 103 N.C. 364 (9 S.E. 577); Frazier v. State, 135 Ind. 38 (34 N.E. 817); State v. Ward, 51 Vt. 153 (17 A. 483); Sutton v. Com., 85 Va. 128 (7 S.E. 323); State v. Seely, 92 Iowa 488 (61 N.W. 184); Com. v. Taylor, 129 Pa. 534.
Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
Indictments were found against the defendant for selling liquor without a license, selling liquor on Sunday, and for keeping a disorderly house. The three cases were tried together before a single jury. When the district attorney said in his closing argument: " You have this woman here without denial," he was promptly interrupted by counsel for the defendant and an exception taken to the statement. The court stated as follows: " The above remark having been made by the district attorney while discussing the charge in the indictment against the defendant for keeping a disorderly house, the exception is noted for that charge and bill sealed for the defendant." The trial proceeded, and the court directed a verdict of not guilty in the case of keeping a disorderly house but submitted the other cases to the jury who returned a verdict of guilty. A motion in arrest of judgment was overruled and the defendant sentenced, hence this appeal.
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...testify, and permitting an unfavorable inference to be drawn from his failure to do so. Com. v. Green, 233 Pa. 291, 82 A. 250; Com. v. Foley, 24 Pa.Super. 414. * * In Commonwealth v. Chickerella, 251 Pa. 160, 96 A. supra, the defendant's conviction of a murder in the first degree with the p......
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