Commonwealth v. De Palma

• Decision Date: 26 June 1920
• Docket Number: No. 294.,294.
• Parties: COMMONWEALTH v. DE PALMA.
• Court: Pennsylvania Supreme Court

110 A. 756

COMMONWEALTH
v.
DE PALMA.

No. 294.

Supreme Court of Pennsylvania.

June 26, 1920.

110 A. 757

Appeal from Court of Oyer and Terminer, Luzerne County; S. J. Strauss, Judge.

Tony De Palma, alias Tony Palma, was convicted of murder, and appeals. Affirmed.

Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

A. P. Conniff, of Wilkes-Barre, and Joseph F. Cohan, of Pittston, for appellant.

Arthur H. James, Dist. Atty., of WilkesBarre, for the Commonwealth.

FRAZER, J. On January 27, 1919, between 12 and 12:30 a. in., Bronislaw Myskowski was found dead in his bedroom, his throat having been cut with a sharp instrument. Defendant, who lived at a boarding house about 600 feet distant, was placed under arrest early the same morning, charged with committing the crime. The evidence produced on the part of the commonwealth was wholly circumstantial, the motive being based on an intimacy existing between defendant and the wife of deceased. The jury returned a verdict of murder in the first degree, and, after refusal of the court below to grant a new trial, this appeal followed. The numerous assignments of error will be discussed in the order argued by counsel.

The fourth and fifth assignments complain that the trial judge erred in failing to instruct the jury on the meaning of the word "alibi" and as to the burden, of proof relating to the defense. Defendant testified be spent the better part of the evening at home, and shortly before 12 o'clock went outside for a few minutes, and then to bed and slept until awakened by the officers who arrested him. Before retiring he requested his boarding mistress to call him at 6 o'clock. His statement of the time he retired is corroborated by the woman, and the fact that he was asleep in his bed at the time of his arrest was testified to by the officers. Defendant's boarding house keeper further testified she usually heard the least noise at night, and did not hear defendant leave the house after going to his room. It is conceded that defendant did not remain outside the door of his boarding house more than two or three minutes immediately before retiring. In commenting on the testimony offered to establish an alibi, the trial judge did not define to the jury the meaning of the term, nor did he in fact use the word in his instructions, but in referring to various matters of defense, said:

"There are the witnesses who testified to the occurrences at Florio's house on Sunday afternoon. This does not directly bear upon the crime, but it is only given as part of defendant's history, accounting for his whereabouts during the entire day * * * there is the testimony of the two Yanchulas and of Tony himself, as to the time he retired, as to the last they knew about him on Sunday evening, how he remained up until about 12 o'clock, and how he retired, and how he called out to them to wake him in the morning, and how they heard him throw his shoes, or drop his shoes," etc.

The court then stated further:

"If, after considering all this evidence, you have...