Commonwealth v. Keegan

• Court: Pennsylvania Superior Court
• Writing for the Court: TREXLER, J.
• Citation: Commonwealth v. Keegan, 70 Pa.Super. 436 (Pa. Super. Ct. 1918)
• Decision Date: 30 November 1918
• Docket Number: 257-1917
• Parties: Commonwealth v. Keegan, Appellant (No. 1)

70 Pa.Super. 436

Commonwealth v. Keegan, Appellant (No. 1)

No. 257-1917

Superior Court of Pennsylvania

November 30, 1918

Argued December 11, 1917

Appeal by defendants, from judgment of Q. S. Philadelphia Co., Jan Sessions, 1917, No. 719, on verdict of guilty in case of Commonwealth v. Edward Keegan et al.

Indictment for assault and battery and aggravated assault and battery. Before Carr, J.

Verdict of guilty upon which judgment of sentence was passed.

Errors assigned were various rulings and instructions sufficiently appearing in the opinion of the Superior Court.

William A. Gray, for appellant. -- Where a nolle prosequi is entered by the district attorney with leave of the court, after a settlement of the parties it will be a termination of the prosecution and cannot be reopened: Commonwealth v Kohl, 17 Lanc. Law Review 159; Steinbaker v Wilson, 1 Campbell 176; Riddle v. Hall, 99 Pa. 116; Rothermel v. Hughes, 134 Pa. 510.

It is settled law that the credibility of a witness is a question for the jury and that a witness may be asked whether he has ever been arrested and convicted of a crime: Commonwealth v. Racco, 225 Pa. 113; Commonwealth v. Payne, 242 Pa. 395.

James Gay Gordon, Jr., Assistant District Attorney, with him Samuel P. Rotan, District Attorney, for appellees.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

TREXLER, J.

There are thirty-six assignments of error. In considering them we will group them in the same manner as they appear in appellants' argument.

The first relates to the refusal of the court to quash the indictment. The learned president judge of the lower court stated, " There is nothing in the case to show that a warrant supported upon oath or affirmation subscribed by the affiant" as provided by Sec. 8, Article 1, of the Constitution of Pennsylvania had been issued before the defendants were bound over. He concluded, however, that it was too late after indictment was found for the court to entertain a motion to quash for the reason there having been ample time for defendants to have instituted proceedings to be discharged from custody on the ground of their illegal commitments. This court in Com. v. Dingman, 26 Pa.Super. 615, following Com. v. Brennan, 193 Pa. 567, stated that a defendant in a criminal case may " raise any questions touching the legality of his arrest upon a proceeding to be discharged from custody, but if he has given bail to answer the charge, he cannot after indictment found raise such questions by motion to quash." See Com. v. Hans, 68 Pa.Super. 275; Com. v. Mallini, 214 Pa. 50; Com. v. Taylor, 65 Pa.Super. 113; Com. v. Haines, 57 Pa.Super. 616; Com. v. Williams, 54 Pa.Super. 545; York City v. Hatterer, 48 Pa.Super. 216.

Another reason urged on the motion to quash was that the present case had been settled by a release given in a former case, in which the relative positions of the parties to the action were reversed, the defendants in this case being the prosecutors in the former case. The release reads as follows: " In view of the submission of the within bill of indictment, we agree to waive and release all rights, civil or criminal, which we now have or may have against the within prosecutor and the witnesses herein named, arising out of any matter or thing herein referred to." There are a number of cases presented in the argument of the counsel relative to the legal effect of the release, but it is not necessary to discuss them. We agree with the lower court that the release in question is limited to rights arising out of any matter or thing referred to in the indictment. The reference was to the offense charged which occurred in a Race street restaurant, and the assault in the station house, the subject of the present inquiry, was not part of the same transaction.

The defendants endeavored to cross-examine certain witnesses of the Commonwealth as to their previous arrest for crime. These were properly excluded, as strictly speaking, the questions were not properly framed. The mere arrest of a person does not affect his credibility. One witness was asked if he was arrested and had been in the Eastern Penitentiary. He answered, " I was." Objection to the question was sustained; the answer was not stricken out. The question did not ask the particular crime of which he was convicted. We do not regard the cases as holding that a conviction of any crime tends to discredit a witness. The crime should be such as affects the witness's credibility. Considering all these matters, we do not think the court committed error in excluding this. It is largely a matter under the discretion of the trial judge and unless substantial injury is a result, the appellate court will not reverse: Com. v. Racco, 225 Pa. 113; Com. v. Varano, 258 Pa. 442.

The animated colloquy between contending counsel out of which grew the basis for the seventh assignment presents nothing on which it would be profitable to comment, nor was any error committed by the court.

One of the assignments complaining of a remark of the district attorney is not set forth in the record in the exact words used nor does it appear that the court was requested to have them put upon record: 29th assignment.

The reference made by the district attorney to " that notorious 6th district station house that has so long escaped the light of publicity" we do not think requires a reversal. It was alleged that these words were provoked by a somewhat similar declaration coming from the defendants' attorney. As this does not appear on the record it will not help us. The effect on the jury would not be...