Commonwealth v. Giorno
| Decision Date | 20 April 1931 |
| Docket Number | 204 |
| Citation | 154 A. 786,303 Pa. 509 |
| Parties | Commonwealth v. Del Giorno, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 23, 1931
Appeal, No. 204, Jan. T., 1931, by defendant, from judgment of O. & T., Phila. Co., Sept. Term, 1929, No. 462, on verdict of guilty of murder of the first degree with death fixed as penalty, in case of Commonwealth v. Danny Day Del Giorno et al. Affirmed.
Indictment for murder. Before GORDON, J.
The opinion of the Supreme Court states the facts. See also Com. v. Del Vaccio, 299 Pa. 447, and the case following this one.
Verdict of guilty of murder of the first degree with death fixed as penalty. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record seriatim.
The case as presented by the Commonwealth contained every element of first degree murder and the credibility of the witnesses was for the jury. The assignments of error are all overruled the judgment is affirmed and the record is ordered remitted for the purpose of execution.
Edward W. Wells, with him Edward A. Kelly, for appellant. -- Statements made to a witness by a codefendant (not on trial) are not admissible against the defendant on trial.
Where an answer of a witness is unresponsive and prejudicial it is error to refuse to strike it out.
A hospital record is admissible to prove a codefendant was treated for gunshot wounds almost immediately after the alleged murder.
It is misleading to charge the jury that it should "deal only with that kind of murder in the first degree described as 'wilful, deliberate, and premeditated.'"
It is error to refuse to charge that the doctrine of a reasonable doubt applies to every element of the offense: Com. v Green, 292 Pa. 579.
The charge was prejudicial in its criticism of the testimony for the defense: Com. v. Pipes, 158 Pa. 25; Com. v. Loomis, 267 Pa. 438; Com. v. Ronello, 251 Pa. 329.
The court below erred in interrupting examination of defendant and his witnesses and extensively examining the same: Com. v. Myma, 278 Pa. 505; Sarshik v. Fink, 292 Pa. 256.
The court below erred in refusing to withdraw a juror on account of remarks made by counsel for the Commonwealth in his summation before the jury: Com. v. Shoemaker, 240 Pa. 255; Com. v. Ronello, 251 Pa. 329.
The court below erred in refusing to withdraw a juror on account of remarks made by the court: Sarshik v. Fink, 292 Pa. 256; Com. v. Stallone, 281 Pa. 41.
Vincent A. Carroll, Assistant District Attorney, with him John Monaghan, District Attorney, for appellee. -- The court did not err in admitting a telephone conversation between a witness (mother of decedent) and a codefendant jointly indicted with appellant and previously tried and convicted.
Where, on cross-examination, a witness gives answer to a question which would not be a proper question in direct examination, such answer can not be deemed prejudicial in law.
The hospital record, properly or improperly proven, is not admissible as evidence of the facts which it contains: Harkness v. Boro., 238 Pa. 546.
It is not misleading to charge the jury that it should "deal only in that kind of murder in the first degree described as wilful, deliberate and premeditated": Com. v. Bednorciki, 264 Pa. 124.
The court did charge that the doctrine of a responsible doubt applies to every element of the offense: Com. v. Faulknier, 89 Pa.Super. 454; Com. v. Green, 292 Pa. 579; Com. v. Boschino, 176 Pa. 103; Com. v. Aiello, 180 Pa. 597.
The charge did not criticize the testimony for the defense and consequently was not prejudicial to the defense: Com. v. Weber, 271 Pa. 330; McClain v. Com., 110 Pa. 263; Com. v. Orr, 138 Pa. 276; Com. v. McGowan, 189 Pa. 641; Com. v. Cunningham, 232 Pa. 609.
The court below did not err in interrupting examination of defendant and his witnesses and extensively examining the same: Com. v. Green, 294 Pa. 573.
No remarks were made by counsel for the Commonwealth that would warrant the withdrawal of a juror: Com. v. Del Vaccio, 299 Pa. 547.
In Pennsylvania, the law on this subject is definitely settled, and abundant decisions to the same effect are found: Com. v. Exler, 61 Pa.Super. 423; Com. v. Pennington, 249 Pa. 536; Com. v. Smith, 270 Pa. 583; Com. v. Ciere, 282 Pa. 492; Com. v. Valverdi, 32 Pa.Super. 241; Com. v. Striepeke, 32 Pa.Super. 82; Com. v. Shoemaker, 240 Pa. 255.
The court below did not err in refusing to withdraw a juror on account of remarks made by the court: Com. v. McKeehan, 93 Pa.Super. 348; Com. v. Myma, 278 Pa. 505; Hill v. Torpey, 46 Pa.Super. 286.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.
This appeal is by the defendant, Danny Day Del Giorno, herein called "the defendant," from death sentence imposed upon conviction of murder of the first degree, the verdict fixing that penalty. While the record discloses some interesting questions, there is nothing calling for a reversal. The defendant was tried separately, although indicted jointly with Frank Del Vaccio and Anthony Piccarilli, for the murder of Samuel Jacobs. The deceased's father, Aman Jacobs, had his store and residence at 1171 South Tenth Street, Philadelphia, where the deceased with his wife and two children also resided. On the late afternoon of July 13, 1929, the three defendants stopped the automobile, in which they came, in front of this store and, according to the testimony of the Commonwealth, as the deceased came from a near-by drug store, fired numerous shots at him by which he was killed and a customer at the store three times wounded; that after the shooting the defendants left the automobile and fled. Del Vaccio was first tried and a more detailed statement of the facts appears in Com. v. Del Vaccio, 299 Pa. 547. Self defense was interposed for the defendant, who offered evidence to the effect that the deceased came from the drug store with a revolver in each hand and proceeded to shoot up the car and its occupants, and that they, or one of them, fired at him in self defense. The jury properly rejected this defense. It was not highly probable that one man would attempt to assassinate three and it must be remembered that they sought him, not he them; and no gun was found on the deceased or where he fell.
The defendants had come to see the deceased twice earlier that afternoon, and, according to the testimony of his mother, one of them, whose voice she recognized, had called for him on the telephone demanding money and had threatened him with personal harm if he refused. As she was acquainted with the one who used the telephone she was competent to identify his voice. See Dunham v. McMichael, 214 Pa. 485; Swing v. Walker, 27 Pa.Super. 366; 4 Wigmore on Evidence (2d edition) section 2155; 22 C.J. 193. As the defendants were acting in concert that day, the statements of one would be competent evidence against all.
Mr. and Mrs. Seemon, near neighbors, had come forward, after Del Vaccio was convicted, with the claim that they saw the shooting and that the deceased was the aggressor, although they had told the officers they knew nothing of it. This made ill feeling, which appeared in the testimony of the deceased's mother, in her cross-examination, as follows: This the trial judge declined to strike out because he said it was in response to the questions asked. As the matter then stood it was impossible to say whether the answer was relevant. Unless the party who, the witness claimed, tried to bribe her was connected with the defense, it was irrelevant, and another question might have developed that fact. In the absence thereof, as the answer was in response to a question in cross-examination, we cannot say the court erred in refusing to strike it out. In any event, it was not a matter of great importance. The belated manner in which Mr. and Mrs. Seemon came forward as witnesses for the defense, after denying all knowledge of the affair, called for a careful scrutiny of their testimony.
After the shooting, one of the other defendants was taken to the Howard Hospital, and the rejection of the hospital record, offered as tending to show he had a wound on his neck, is assigned as error. Such records are sometimes received in evidence (see 3 Wigmore on Evidence, 2d edition, section 1707), but are not generally competent: Harkness v. Swissvale Boro., 238 Pa. 544. Furthermore, the records had passed into the custody of another hospital, and the handwriting therein was not identified, or their authenticity shown. Again the evidence indicated that that defendant had a wound on his neck before the shooting. Better evidence would have been that of the surgeon who attended him. Under the circumstances, rejecting the records was not error. See Hay v. Kramer, 2 W. & S. 137; Com. v. Berney, 28 Pa.Super. 61; Bulkley v. Wood & Co., 4 Pa. Superior Ct. 391.
Complaint is made that the trial judge participated too freely and to the prejudice of the defendant in the cross-examination of certain of his witnesses. So far as no objection was made thereto at the time or exception taken, it is not the subject of review. As has been often said (see Com. v Green, 294 Pa. 573; Hill v. Torpey, 46 Pa.Super. 286; Com. v. McKeehan et al., 93 Pa.Super. 348), it is the right and sometimes the duty of the trial judge to...
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