Commonwealth v. Kelly

• Decision Date: 31 January 1939
• Docket Number: 156-1938
• Citation: 134 Pa.Super. 241,4 A.2d 209
• Parties: Commonwealth v. Kelly, Appellant
• Court: Pennsylvania Superior Court

4 A.2d 209

134 Pa.Super. 241

Commonwealth v. Kelly, Appellant

No. 156-1938

Superior Court of Pennsylvania

January 31, 1939

Argued October 21, 1938.

Appeal from judgment of Q. S. Phila. Co., Feb. Sessions, 1938, No 835, in case of Commonwealth v. Clement Kelly.

Indictment for breaking and entering a store at night and with intent to steal. Before Kun, J.

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, were various excerpts from charge of trial judge.

Judgment affirmed.

Louis F. McCabe, for appellant.

Franklin E. Barr, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Cunningham, J.

This appeal by Clement Kelly from the judgment and sentence following his conviction of having broken and entered the drug store of Herman Finkelstein, by night and with intent to steal, is based solely upon alleged errors in the charge of the trial judge.

Counsel for appellant has summarized his ten assignments of error under the following statement of "Questions Involved:"

"1. Was the charge of the court on reasonable doubt to the effect that if the jury cannot form a conscientious conclusion in their own minds that the defendant is guilty, their duty is to acquit him, reversible error?

"2. Was the charge of the court argumentative to the extent that it deprived the defendant of a fair and impartial trial?"

An understanding of the issues of fact which arose out of the evidence will be helpful in disposing of the questions of law now before us.

The night watchman of the drug store, located at 329 North Broad Street, Philadelphia, was the leading witness for the Commonwealth. He testified that between 3:00 and 3:30 a.m. on the morning of February 12, 1938, while on duty and sitting in the store reading, he heard someone break the glass in a side window, pull the window up and down several times, and say to some person on the outside, "give me a boost;" and then saw a man crawl in through the window. As soon as the intruder had taken a few steps in the store, which was lighted with a 75-watt electric light, the watchman fired five shots at him. When the shots were fired he uttered an exclamation, sprawled on the floor and over a bench, got up, broke more glass with a revolver he had in his hand and jumped headfirst out of the window.

The incident occurred on a rainy night; the stranger wore a dark overcoat but no hat; and his hair was hanging down over the side of his face. At a second hearing, when appellant was dressed in an overcoat with his hair pulled down over the side of his face, the watchman positively identified him as the intruder and repeated his identification at the trial. An hour later the same morning, a detective arrested appellant at the Lankenau Hospital, where he had gone for treatment of second degree lacerations of the left forearm and two small scratches on the right wrist; and a few minutes later the same officer found appellant's overcoat, still damp and with blood on the sleeve, in the dining room of appellant's home located a block from the hospital. The evidence adduced by the Commonwealth was ample, if believed by the jury, to sustain the conviction.

Appellant's defense was an alibi. He testified he was out with his girl until ten o'clock that night; later he went to a taproom and returned home around two o'clock. Having no key, he wakened his uncle by throwing stones against the window. On entering the house, he listened to the radio until a little after three, when he went out to the kitchen to eat. In attempting to close a kitchen window which had swung open he accidentally forced his hand through the glass and cut it, bandaged it up with a towel, attempted without success to get his overcoat on over the towel, left his overcoat at home, and went to the hospital for treatment. He was corroborated by his uncle as to his return home about two o'clock that morning, and as to the cutting of his hand on the kitchen window.

1. The trial judge did not give the jury a definition of "reasonable doubt," nor was he required to do so in a case of this kind, in the absence of a specific request: Com. v. Scutack, 105 Pa.Super. 524, 161 A. 610. After reviewing the evidence on both sides he said: "This defendant, like every defendant, comes to the bar of the court presumed to be innocent. His guilt must be proven to the satisfaction of the jury, beyond a fair and reasonable doubt, and that turns on the validity of the identification, the corroborating circumstances, the factual circumstances, as to whether they are convincing to you, after taking into consideration the defendant's denial and the alibi that has been set up by the evidence as testified to by the uncle." (Italics supplied)

After adequate and correct instructions relative to the measure of proof required in support of an alibi, he continued:

"But, even although the alibi, as an affirmative defense, is not established by the preponderance of the evidence, yet, if, on the whole case, including it, you are not satisfied that he is the man, you are not so satisfied beyond a fair and reasonable doubt, then, the man must be acquitted."

These portions of the charge are not complained of as inadequate. The assignments upon this branch of the case are based upon a subsequent paragraph reading:

"The thing turns on the question of identification. If this identification has been made to your satisfaction and you have no moral hesitancy in coming to that conclusion, because of all you have heard on both sides of the case, then, your duty is to convict him. If, however, considering all the elements that have been produced here in the case, you cannot form a conscientious conclusion in your own minds that he is the man, why, then, of course, it is your duty to acquit him. Now, there is the long and short of the case." (Italics supplied)

At the conclusion of the charge a colloquy ensued between the trial judge and counsel for appellant with relation to the "impression" the former intended the jury to receive by the use of the phrase "conscientious conclusion." It ended with this statement by the trial judge: "I don't want any man convicted in this court room unless the jury is wholly satisfied that the man is guilty."

In our opinion, the contention in behalf of appellant that the jury was not given such a description of the burden of proof resting upon the Commonwealth throughout the trial as fully protected his rights is without foundation. For recent cases on this subject see Com. v. Barrish, 297 Pa. 160, 146 A. 553; and Com. v. Apriceno, 131 Pa.Super. 158, 171, 172, 198 A. 515.

2. The first exception taken by counsel for appellant at the conclusion of the charge reads:

"Now then, I would like to take an exception to your Honor's charge, generally, because of what I would...