Commonwealth v. Ruff

• Decision Date: 02 March 1928
• Docket Number: 783-1928
• Citation: 92 Pa.Super. 530
• Parties: Commonwealth v. Ruff, Appellant
• Court: Pennsylvania Superior Court

92 Pa.Super. 530

Commonwealth v. Ruff, Appellant

No. 783-1928

Superior Court of Pennsylvania

March 2, 1928

Argued October 17, 1927

Appeal by defendant from judgment of Q. S., Westmoreland County-1926, No. 532, in the case of Commonwealth of Pennsylvania v. Frank F. Ruff.

Indictment for conspiracy to defraud, extortion, etc. Before Harvey, J. 18th Judicial District, specially presiding.

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

Verdict of guilty, in which sentences were passed. Defendant appealed.

Errors assigned were various rulings on evidence, the charge of the court, refusal to withdraw a juror because of remarks of the District Attorney, and the sentence of the court.

Affirmed.

James Gregg, and with him Curtis H. Gregg and Philip K. Shaner, for appellant.

John R Keister, District Attorney, and with him Fred B. Trescher Assistant District Attorney, and Charles J. Margiotti, Special Counsel for the Commonwealth, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

TREXLER, J.

The defendants, Michael Early and Frank S. Ruff, Jr., were charged in six counts of the indictment with (1) conspiracy to defraud, (2) extortion by color of office, (3) intimidation and extortion of money, (4) conversion, (5) obstructing justice, (6) conspiracy to extort under color of office. They were found guilty on all six counts and were paroled for a period of two years.

An assignment of error is directed to the court allowing William Hugo, a clerk in the Pitcairn shops of the Pennsylvania Railroad Company, to tell about the use of the telephone on a certain day in April, 1926. The purpose of the Commonwealth in calling the witness was to contradict the assertion of Frank Ruff that on a certain day in April, 1926, he had a conversation over the telephone with Mike Brletic. The witness testified that he " answered the telephones at his place on April 29th in the afternoon and evening" and " I keep a record of all calls" and that on the 29th, about 4 o'clock in the afternoon, there was an inquiry came in for Mike Brletic. He told the party that Mike was busy and the party at the other end of the line said, they needed him badly at the time; that the witness should call him later and have him call number 169, which was the office of Burgess Henderson of Trafford; that he called Mike to the 'phone about a half hour later and he received the reply from the other end of the line that the party that asked for Mike Brletic had gone. There was no cross-examination of the witness except to elicit the fact that he did not know with whom he had talked in every instance, but the fact nevertheless remains that he was the party who answered the telephones in the office in the afternoon and evening and that during that time Frank Ruff had no conversation over the telephone with Mike Brletic. We see no objection to the introduction of this testimony which was legitimate contradiction. If the defendants wished to establish that other persons had access to the telephones during the period to which the witness testified and that his knowledge of the situation was not inclusive enough, they should have cross-examined him further. His testimony sustains the inference that he was in exclusive charge.

The 2nd and 3rd assignments of error are directed to the alleged error of the court in refusing the offer of the appellants to prove that after a certain check for $ 60 was given, Mike Early, one of the defendants, took it before it was presented for payment to the witness on the stand and informed him that the payment of the first check had been refused and asked his advice as to what disposition he should make of the check whether he should mail this check to Frank Ruff, his co-defendant, or present it for payment and that he had been advised by the witness that he had better get the money as quickly as possible. This for the purpose of proving motive, intent or purpose of doing the particular thing in question and involved in this case, and for the further purpose of showing a lack of corrupt intent. The second offer presented in sur rebuttal was to prove that Mike Early had told the witness certain circumstances about the check being given to him and was in substance to the same effect as the offer already alluded to except that there was the added reason that it was to show that defendant's story was not a recent fabrication. The court, sustained an objection and in commenting upon this phase of the case, in its opinion, on the motion for a new trial states: " The question of recent fabrication was not raised directly or by inference, as the court viewed it. The only thing the court could see in the offer was to try to establish the fact, by a prior consonant statement, that Mr. Early was acting for Mr. Ruff. Mr. Early was a competent witness in his own behalf, was examined as such, and testified before the jury, and was cross-examined by counsel for Commonwealth. Why then should he be permitted to prove that he had told the same story to another person out of court and in the absence of the prosecutor? The declarations of a party in his own behalf are not evidence. Clever v. Hilberry, 116 Pa. 431, 9 A. 647; Com. v. Kay, 14 Pa.Super. 376; Com. v. Brown, 23 Pa.Super. 470." Some latitude must be given to the lower court in such matters. The impeachment must plainly appear and must go to the credibility of the witness. Lyke v. L. V. R. R. Co., 236 Pa. 38, 84 A. 595. It will be noticed that there were two offers of this testimony. The first ruling of the court could be sustained for the reason that the offer made no reference to the subject of " recent fabrication." The party cannot offer evidence for a specific purpose and if rejected afterwards allege it was competent for another and distinct subject. Deitrich v. Kettering, 212 Pa. 356, 61 A. 927. The second offer which referred to " recent fabrication" was presented in sur rebuttal. It does not appear to have been in answer to anything presented by the Commonwealth in rebuttal. Passing these technical objections, we agree with the lower court that there was nothing in the trial which gave the defendant the right to offer self-serving declarations; to prove that his story was contradicted will not suffice. Where inconsistent prior statements of defendant's are shown and the inference of guilt is sought to be drawn from his silence where it would have been natural for him to speak, or that in such case, he had been advised by counsel to remain silent in these instances, such statements of the defendant were allowed. The allowance seems to depend largely upon the circumstances of each case. The leading cases upon the subject are Lyke v. Lehigh Valley R. R., 236 Pa. 38, 84 A. 595, opinion by the...