Commonwealth v. Green

• Decision Date: 02 January 1912
• Docket Number: 169
• Citation: 233 Pa. 291,82 A. 250
• Parties: Commonwealth v. Green, Appellant
• Court: Pennsylvania Supreme Court

82 A. 250

233 Pa. 291

Commonwealth v. Green, Appellant

No. 169

Supreme Court of Pennsylvania

January 2, 1912

Argued October 2, 1911

Appeal, No. 169, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Sept. Sessions, 1910, No. 624, on verdict of guilty of murder in the first degree in case of Commonwealth v. Jerry Green. Reversed.

Indictment for murder. Before WILLSON, P.J.

Verdict of guilty, upon which judgment of sentence was passed.

Errors assigned were in the following form:

1. The learned trial judge erred in giving greater weight, emphasis and prominence to the commonwealth's evidence than to the evidence given on behalf of defendant.

2. That the learned trial judge erred in his charge to the jury by failing to refer to the statement made by defendant in which he set forth his denial of the crime and which was offered in evidence by the commonwealth.

3. That the learned trial judge erred in his charge to the jury in not directing the jury that under all and any circumstances they were to fix the degree of the crime.

4. That the learned trial judge erred in his supplemental charge to the jury in not directing that they were to fix the degree of the crime.

5. That the learned trial judge erred in his charge to the jury in saying:

"The first question, therefore, that you are to take up, is, did she die a natural death, or did she die by violence? While you have heard what has been said by counsel for the defendant for the purpose of leading you to the conclusion that she died a natural death, it is for you to say whether or not the argument which he has used, and the evidence which he has referred to satisfies your minds that she died a natural death."

6. That the learned district attorney erred in calling the attention of the jury to the fact that the defendant had not gone upon the stand as a witness in his own defense by saying:

"There is no one on earth who can tell how these things came into the possession of the prisoner but the prisoner."

The judgment is reversed with a venire facias de novo.

Edwin M. Abbott, for appellant. -- Where a district attorney, in his closing address to the jury, makes statements which are not warranted by the evidence, and which tend to prejudice the jury, a new trial will be granted, especially when it appears that such remarks have influenced the jury: Com v. Smith, 10 Phila. 189; Com. v. Bruner, 11 Pa C.C. Rep. 428; McClosky v. Dubois Boro., 4 Pa. Superior Ct. 181; Abernethy v. Com., 101 Pa. 322.

Adverse reference to the refusal or neglect of the defendant to testify is ground for a new trial: Com. v. Draper, 2 Chest. County, 424; Com. v. Holtham, 1 Lack. L.N. 370; Com. v. Foley, 24 Pa.Super. 414; Com. v. Brown, 16 W.N.C. 557; Com. v. Bell, 20 Pa. C.C. Rep. 223; People v. Grider, 110 Pac. Repr. 586; McClosky v. Dubois Boro., 4 Pa. Superior Ct. 181; State v. Clark, 131 N.W. 369.

In the case at bar the remark was improper, unfair and highly prejudicial to the defendant and undoubtedly affected the jury: Com. v. Williams, 41 Pa.Super. 326; Com. v. Bubnis, 197 Pa. 542; People v. Cascone, 185 N.Y. 317 (78 N.E. Repr. 287); Com. v. Viele, 33 Pa. C.C. Rep. 333.

Joseph P. Rogers, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The defendant was convicted of murder of the first degree upon purely circumstantial evidence. At about seven o'clock on the morning of July 30, 1910, the body of Catherine Clohessy was found with some marks upon the throat, and the coroner's physician testified that the deceased came to her death through asphyxia caused by external violence. She had left her place of business in the vicinity of the spot where her remains were subsequently located about nine o'clock on the previous evening, and she then had in her possession a hand bag, a pocket book and some religious emblems. On that evening the accused was paying a visit in the neighborhood and left for his home at about nine o'clock, passing the place in question. A written statement given by the defendant to the police after his arrest, in which he described his movements at the time of the alleged murder and stated that he had found the pocket book and the religious emblems and had given them to a woman named Barton, from whom they were subsequently recovered, was introduced in evidence by the commonwealth. The defendant did...