Commonwealth v. Katz
| Decision Date | 13 December 1939 |
| Docket Number | 59-1939 |
| Citation | 10 A.2d 49,138 Pa.Super. 50 |
| Parties | Commonwealth v. Katz, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 23, 1939
Appeal from judgment of O. & T. Lackawanna Co., Oct. T., 1938, No 61, in case of Commonwealth v. Max Katz.
Indictment for pandering. Before Little, P. J., specially presiding.
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, related to various rulings on evidence.
Judgment affirmed.
Carlon M. O'Malley, for appellant.
John W Murphy, Assistant District Attorney, with him Michael J Eagen, District Attorney, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.
Appellant was indicted under the Act of April 24, 1931, P. L. 52, § 1, 18 PS § 814. This act provides that: "Any person . . . . who shall induce, persuade, encourage, inveigle, or entice a female person to become a prostitute . . . . shall be guilty of pandering -- a felony . . . ."
Appellant was tried and found guilty on an indictment charging him with the crime in the words of the act. His motion for a new trial was refused, and sentence imposed. This appeal followed.
The case was called for trial on October 5, 1938, before Little, P. J., 34th Judicial District, specially presiding. On October 8th a verdict of guilty was returned by the jury. On October 11th appellant filed his motion and reasons requesting a new trial. On October 3, 1938, at the commencement of the October Term in Lackawanna County, Leach, P. J., of the Lackawanna county courts, gave some general instructions to the entire panel of jurors. Such instructions were stenographically reported. Appellant and his counsel were not present at the time. On December 29, 1938, appellant's counsel presented a petition to the court below requesting that the general charge or instructions be filed of record as a part of the proceedings in this case, which request was granted. A certified copy of the charge or instructions was filed on December 29, 1938, and appellant allowed an exception thereto.
Appellant has filed fifteen assignments of error. The statement of questions involved presents five legal propositions. These we shall consider in the order in which they have been presented and argued on behalf of appellant.
1. Was the evidence sufficient to sustain the conviction? This question is raised by the first and second assignments of error. Commonwealth's case was based primarily on the testimony of Ethel Howe Norton. Mrs. Norton was eighteen years of age, married, and had one child. She had been living with her family in Clarks Summit, Pa. She testified that she met appellant in December, 1937, and worked for him for two days as a waitress in a tavern at the corner of Linden Street and Raymond Court in the city of Scranton. She again left her home in April, 1938, to work at Lake Sheridan. She remained there until July, when she returned to Scranton. She told of again meeting appellant at the Cotton Club, a night club located in the Hotel Eastman, at the corner of Penn Avenue and Spruce Street, in Scranton. At this meeting she asked appellant if he knew where she could obtain a job, and he told her that he did. He called a Mrs. Parker, who had a delicatessen store nearby, and obtained a position as a waitress for her. She worked two days, and left because, as she said, the hours were too long. She told appellant that the work was too hard, and that she was going to quit. He told her that it was all right with him. A few days later Mrs. Norton asked appellant to loan her some money to pay her room rent at the Capitol Hotel, where she was staying. In response, Mrs. Norton testified that appellant told her that he knew a way she could pick up a few dollars for herself, and she asked him how. Appellant then told her that she could drink with men in the Cotton Club and pick up a few tips. "He told me he would pick out the men for me to go to his room with and that I could charge them $ 2 each. . . . . He said I was to have intercourse with the men there." Defendant took Mrs. Norton to his room in the Hotel Eastman, which she was told to use. On the nights of July 17 and 18, 1938, appellant pointed out four or five men to Mrs. Norton, with all of whom she had intercourse in appellant's room, and charged each of them $ 2. These men were strangers to her; she never saw them before the occurrence or since. Some of the men appellant brought over to Mrs. Norton in the Cotton Club, and told her to go upstairs to his room with them. Others he pointed out to her, and told her that she should take them upstairs. This witness also testified that she had never had intercourse with any other man than her husband before appellant sent her up to his room with men.
Appellant denied that he had conducted himself in the manner described by this witness, and denied the charges of the Commonwealth. Appellant admitted having met Mrs. Norton on some occasions, and denied meeting her on others, as testified to by her. He admitted that he had a room in the Hotel Eastman at least six times during the month of July. Appellant contradicted the testimony of Charles E. Franklin, a Commonwealth witness, who testified to an attempt to have the charge of pandering against him settled after proceedings were instituted.
The defense called a number of witnesses for the purpose of contradicting Mrs. Norton as to incidents both before and after July 17 and 18, 1938. But the evidence presented by the defense was far from being such as to require belief by the jury, and it would serve no purpose to point out in this opinion the many inconsistencies and contradictions which largely discounted its effectiveness, to say nothing of other inherent weaknesses which could be mentioned. There was much conflicting testimony as there is in every such case. The testimony of Mrs. Norton and appellant was irreconcilably conflicting; one was not telling the truth. But it was the prerogative of the jury to pass upon their credibility and determine which was worthy of belief. In some instances both were contradicted by other witnesses. If the jury believed the testimony of Mrs. Norton, it was sufficient to establish appellant's guilt. Whether the testimony presented by appellant and his witnesses was to be believed was a matter solely within the province of the jury; whether such testimony was sufficient to create a reasonable doubt of appellant's guilt was likewise for the jury to decide. Com. v. Gabriel, 130 Pa.Super. 191, 196, 196 A. 866. The trial judge properly left to the jury to determine from the evidence whether appellant encouraged Mrs. Norton to become a prostitute, and also whether she was previously a prostitute. As to the latter the charge of the court contained the following: "Now, if you find from the testimony in this case that Ethel Howe Norton was a prostitute before she met this defendant, your verdict should be one of acquittal, because if she were already a prostitute before she met this defendant then it would not be possible for this defendant, naturally, to have made her become, or encouraged her, enticed, inveigled or persuaded her, to become a prostitute." The evidence was clearly sufficient to require its submission to the jury for the determination of appellant's guilt or innocence.
2. Appellant claims that his constitutional rights were violated by reason of a general charge to the entire panel of jurors given at the beginning of a term of criminal court in Lackawanna County, on October 3, 1938, in the absence of appellant and his counsel, and that such charge contained legal error (third, fourth, fifth, and sixth assignments of error). Judge Leach, in accordance with the practice in that county, delivered to the entire panel of jurors, upon their first day of service in that court, what may be termed a general charge. The instructions included a statement of some of the general rules or principles of law, including the doctrine of reasonable doubt. They were what every individual should know, and what every juror was obliged to know in order to perform his duties honestly and impartially. Some practical and common-sense advice was also given to the jurors who were about to enter upon their duties, and nothing was said, in our judgment, which precluded them from heeding and following the instructions by the trial judge in appellant's case subsequently tried. "No man, not even an accused, should be heard to complain that the district judge fairly and impartially, and without any injury to him, attempts to aid a jury panel to properly, fairly, intelligently and impartially discharge their duties and functions as jurors": Reed v. State, 74 Tex. Crim. 242, 168 S.W. 541, at page 545.
These instructions were taken down stenographically as they were given. No reference or objection was made thereto during appellant's trial. It was not until December 29, 1938 that appellant's counsel presented a petition requesting that the general charge be filed of record as a part of the proceedings in appellant's case. A certified copy was thereupon filed, and appellant allowed an exception thereto. It is immaterial that this practice must have been known to counsel that appellant's trial, which was listed for that particular day, was, just prior to the general charge, continued by request of appellant's counsel, and that the latter's subsequent absence was at his own request and for his own convenience. Disregarding these facts, we do not think that appellant was deprived of a fair and impartial trial, or that any of his constitutional rights were violated. The instant case is readily distinguishable from ...
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