Commonwealth v. Middleton

• Decision Date: 03 March 1939
• Docket Number: 153-1938,154-1938
• Citation: 4 A.2d 533,134 Pa.Super. 573
• Parties: Commonwealth v. Middleton, Appellant
• Court: Pennsylvania Superior Court

4 A.2d 533

134 Pa.Super. 573

Commonwealth v. Middleton, Appellant

Nos. 153-1938, 154-1938

Superior Court of Pennsylvania

March 3, 1939

Argued October 3, 1938.

Appeals from judgments and sentences of Q. S. Phila. Co Nov. T., 1937, Nos. 1584 and 1585, in case of Commonwealth v Charles E. Middleton.

Indictments for perjury and for false registration. Before Rosen, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Error assigned, among others, was refusal of point for binding instructions.

Judgment affirmed in each appeal.

Robert N. C. Nix, for appellant.

John P. Boland, Assistant District Attorney, with him Charles F. Kelley, District Attorney, for appellee.

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

OPINION

Parker, J.

The defendant was found guilty on two bills of indictment, the one charging perjury and the other false registration in violation of "The First Class City Permanent Registration Act" of March 30, 1937, P. L. 115, § 45 (b) and (d), respectively (25 PS § 623-45). Sentence was imposed upon the false registration charge and suspended on the perjury charge, but defendant was directed to pay the costs in the latter case before April 30, 1938. The defendant has appealed in each case.

The only question raised which requires extensive discussion is whether the evidence produced was sufficient to sustain a finding that the defendant who was placed on trial was the same person who was shown to have applied for registration as a qualified voter in a particular election district when he knew that he was not lawfully entitled to be then and there registered and who was guilty of perjury in answering questions asked him by the registrar. It involves, incidentally, the probative effect of identity of name.

As the prime question involved is the sufficiency of the evidence to sustain the verdict, it is necessary to refer to the facts bearing on the subject of identity in some detail. A man presented himself, in Philadelphia on June 29, 1937, at a place prescribed by law for registration, as a qualified voter and subscribed a written oath wherein he declared that his name was Charles E. Middleton, resident at 2205 North 19th Street, second floor rear, 28th Ward, 9th District; occupation, interviewer; color, colored; sex, male; height, 5' 7"; born in Pennsylvania; in district seven months; in state all his life; color of eyes, brown; color of hair, black; date of birth, 1-6-89; and last registered from 2022 Montgomery Avenue. In addition, it was shown that the defendant who appeared was then and had been for several years a resident of and owner of real estate in West Chester, Chester County, a county adjacent to the city of Philadelphia, and there was evidence from which the jury could infer that the defendant did not reside at the place given in the registration card.

The defendant appeared for trial and plead not guilty to the indictments in which Charles E. Middleton was named as defendant, from which we may infer that the jury had an opportunity to see the defendant and compare his appearance with the description given on the registration card that was offered in evidence. The defendant on trial was also identified as being a man who was at the prescribed polling place in Philadelphia on the day of the general election, November 2, 1937. The registrar who administered the oath to the man who applied for registration was unable to identify the defendant as the same individual, assigning as a reason for such inability that at that time they were registering from 800 to 1,200 people a day. The defendant was represented by counsel but did not take the stand nor offer any evidence.

The assistant district attorney takes the broad position that in prosecutions for a crime identity of name is prima facie evidence of identity of person, relying on Com. v. Cover, 281 Pa. 429, 126 A. 786; Com. v. Joyce, 319 Pa. 507, 181 A. 481; and Com. v. Kazman, 92 Pa.Super. 175. The defendants' counsel very earnestly deny that this is a principle of universal application and say that the authorities cited do not sustain it. The district attorney also contends that if his first proposition is not sound there was in any event sufficient additional evidence taken with the identity of name to sustain a finding by the jury of identity of person.

We do not interpret the Cover case as authority for the broad proposition that identity of name is in every criminal case prima facie evidence of identity of person. The Supreme Court in that case granted a new trial on account of inadequate instructions to the jury as to the duties of the respective election officers and made reference to the fact that another question involved was whether "an election was held at which defendant acted as one of the clerks, and, if so, . . . . [whether there was anything] to connect him with the offense charged . . . . As counsel did not see fit to raise the question at the trial, it was no doubt an after-thought." (pp. 433, 435) In short, under the circumstances a new trial was granted and the defendant was not discharged. We will later consider the exact force of this case as we interpret it.

Com. v. Joyce, supra, was a quo warranto proceeding to test title to public office and the question presented was whether a person named in a birth certificate was the same person who was one of the contestants for the office. There was there, as here, other evidence of identity. In Com. v. Kazman, supra, we said (p. 178): "There was evidence to show that the name of the defendant on the nomination petition at the preceding election and the name on the return sheet of the election in question were written by the same person. There was evidence therefore for the consideration of the jury on the question of identity." It is plain that in all three of these cases there was something more shown than mere identity of name.

Keeping strictly in mind that the true question involved here is not the bald question as to whether a case was made out by the mere proof of identity of name, but rather whether such identity of name, taken with the other evidence in the case on the subject, was sufficient to sustain the verdict, we will first give consideration to the weight to be assigned to that part of the proofs which concerns identity of name and then consider the evidence as a whole.

The defendant by his counsel raised the question now presented in the court below. Although the defendant stood mute, the Commonwealth had notice at the trial that the identification was questioned. In civil cases the rule that "identity of name is prima facie evidence of identity of person" is frequently applied at least to the extent of requiring the party questioning the identification to go ahead or produce evidence to the contrary: Atchison v. M'Culloch, 5 Watts 13, 14; Hamsher v. Kline, 57 Pa. 397, 403; McConeghy v. Kirk, 68 Pa. 200, 203; Lampeter Twp. Road, 35 Pa.Super. 379, 380. Also, see Eifert v. Lytle, 172 Pa. 356, 365, 33 A. 573. As Dean Wigmore has stated (5 Wigmore on Evidence, § 2529): "The oddness of the name, the size of the district and length of the time within which the persons are shown to have coexisted, and other circumstances, affect this result differently in different cases . . . . But these rulings cannot be said to attach a presumption to a definite and constant set of facts; they apply the presumption upon the circumstances of the particular case."

Chief Justice Gibson in Sailor v. Hertzogg, 2 Pa. 182, 183, many years ago said: "Identity of name is ordinarily, but not always, prima facie evidence of personal identity." In that case, by reason of lapse of time, some additional evidence was required to make out a case sufficient to go to a jury. We are here dealing not with a civil case, but with convictions of crimes, and as stated by Dean Wigmore in the same section referred to above: "There was perhaps a greater traditional strictness shown in dealing with the identity of a person named . . . . as the object of a conviction for crime."

In a criminal case the proofs relied upon must show beyond a reasonable doubt that the offense alleged was in fact committed and that the person indicted took part in its commission; the defendant is presumed to be innocent until the contrary is shown. The Act of May 23, 1887, P. L. 158 (19 PS § 631) provides that "the neglect or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness [shall not] be treated as creating any presumption against him." It follows that in considering the weight to be given to identity of name the nature of the action in which the fact is involved must also be taken into account, and that stronger proof is required in a criminal action than in a civil case; the rule is applied with...