Commonwealth v. Karmendi
| Decision Date | 05 January 1937 |
| Docket Number | 349 |
| Citation | 325 Pa. 63,188 A. 752 |
| Parties | Commonwealth v. Karmendi, Appellant |
| Court | Pennsylvania Supreme Court |
Argued November 23, 1936
Appeal, No. 349, Jan. T., 1936, by defendant, from judgment and sentence of O. & T. Blair Co., June Sessions, 1936, No 7, in case of Commonwealth v. Margaret Karmendi. Judgment reversed, and venire facias de novo awarded.
Indictment for murder. Before PATTERSON, P.J.
The opinion of the Supreme Court states the facts.
Verdict of guilty of murder in the first degree with penalty of death and judgment and sentence thereon. Defendant appealed.
Errors assigned, among others, were various rulings on evidence and the charge of the court.
Judgment is reversed, and a venire facias de novo is awarded.
Frank J. Reiser, Sr., for appellant.
R. J. Puderbaugh, Assistant District Attorney, with him Chester B. Wray, District Attorney, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
The defendant, Margaret Karmendi, was jointly indicted with Roy Lockard for murder. She secured a separate trial which resulted in her conviction of the crime charged, in the first degree. The jury fixed the penalty at death. Judgment was entered and sentence imposed accordingly; from this action of the trial court this appeal was taken.
Most of the facts relevant here are recounted in Commonwealth v. Lockard, 325 Pa. 56. A few should be added. On April 22, 1936, the day after the crime, an officer called on defendant at her house, but she told him no more than that a car struck the child. Later in the same day she was taken to the Altoona City Hall where she insisted on the same story, which, at trial, she testified was given her by Lockard with threats to her life if she should not tell it. At the City Hall, however, she relied on it until told that Lockard accused her of the crime. Then she said Lockard killed the child with a spike he took from his pocket, and that she knew nothing of his intention to do it.
Lockard accused her of conceiving and discussing with him the design to wait for a passing car, of carrying the spike and of striking the victim at least once. She confronted him, denied this and charged him with being the sole perpetrator.
Weeks later she called an assistant district attorney to the jail and told him that the first account about the hit-and-run motorist was the correct one. At trial, however, she again sought to lay the whole crime to Lockard, who, already sentenced to death, testified for her and assumed all responsibility. He was contradicted by a former statement in which he confessed only a share of the blame.
A new trial must be granted because of trial errors. When cross-examined by counsel for the Commonwealth the witness, Lockard, was asked, over objection, the following question:
The overruling of objection to this was assigned below as a reason for a new trial and the same allegation of error has been preserved on this appeal in the sixteenth specification. We think the objection made below ought to have been sustained for several reasons.
Since Lockard's counsel also represented defendant in the trial of the present case, it is especially likely that this question and answer, disclosing the defense argument in the Lockard trial, was most injurious to the defendant here in the eyes of her jury. To point out such an inconsistency in counsel's position must have caused the laymen who were her jurors to look with suspicion upon her case and must have deprived her counsel's closing argument of whatever persuasive force it might otherwise have had. Yet it must have been known to the prosecution, as it is to the profession generally, that inconsistent arguments are legitimate advocacy so long as they are reasonable versions of the evidence, [*] and that what an advocate does apart from his client's case is not evidence in it.
Furthermore the question was entirely incompetent even for the purpose of impeaching Lockard's testimony exculpating the defendant. He, surely, did not prescribe the closing argument for his counsel. Nor is there a legal inference from what was then an apparent acquiescence in that argument. Former acquiescence in a statement now denied is not competent evidence when the former statement was made in the course of a judicial proceeding: Commonwealth v. Zorambo, 205 Pa. 109. Orderly procedure requires that everyone, including the defendant, await his turn to speak.
Nor should the Commonwealth have been allowed over objection to cross-examine defendant on her failure to offer to testify against Lockard. The inference thus suggested was irrelevant and prejudicial, and the prejudice was increased by the emphasis placed upon her failure to do so in the charge of the court. There is a settled principle that omission to speak and act when it would be natural so to do is competent evidence. With it we do not disagree, and it finds application in many of our cases. Thus failure to deny when accused of crime, not at a judicial...
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Commonwealth v. Karmendi
...indicted with Roy Lockard for the same offense but was separately tried. This was her second trial. Her first conviction was reversed in 325 Pa. 63, and a new granted. Her companion, Roy Lockard, found guilty of the same offense, with the same punishment, had also appealed. The judgment was......
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State v. Kobylarz
...sufficient to support a conviction in the absence of other evidence from which guilt may be logically inferred. Commonwealth v. Karmendi, 325 Pa. 63, 188 A. 752 (Sup.Ct.1937); 53 Dickinson Law Rev. To constitute proof of an admission by silence, it must be disclosed by evidence (1) that the......
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State v. Brown.
...those on the other. * * *’ Com. v. Colandro, 231 Pa. 343, 356, 80 A. 571, 576; Com. v. Westley, 300 Pa. 16, 150 A. 94; Com. v. Karmendi, 325 Pa. 63, 188 A. 752; 23 C.J.S., Criminal Law, § 1308, p. 896 et seq. In a case of this kind where, because of the nature of the offense charged, resent......