Commonwealth v. Sydlosky
| Decision Date | 23 November 1931 |
| Docket Number | 374 |
| Citation | 158 A. 154,305 Pa. 406 |
| Parties | Commonwealth v. Sydlosky, Appellant |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1931
Appeal, No. 374, Jan. T., 1931, by defendant, from judgment of O. & T. Lackawanna Co., May T., 1931, No. 10, on verdict of guilty of murder of second degree, in case of Commonwealth v. Stella Sydlosky. Affirmed.
Indictment for murder. Before LEWIS, J.
The opinion of the Supreme Court states the facts.
Verdict of guilty of murder of second degree on which judgment of sentence was passed. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record seriatim.
The assignments of error are overruled and the judgment of sentence is affirmed.
Carlon M. O'Malley and P. E. Kilcullen, for appellant. -- The error assigned regarding the noncitizenship of Regnar F Kearton does not fall within the ruling of Com. v Dombek, 268 Pa. 262, but it is an exception to it and falls clearly under the ruling of the court in Traviss v. Com., 106 Pa. 597, which case, incidentally is cited with approval in Com. v. Dombek, 268 Pa. 262, in which latter case is indicated such exception.
The admission of photograph of baby Lezinsky was error: Com. v. Luccitti, 295 Pa. 190; Com. v. Winter, 289 Pa. 289; Com. v. Flood, 302 Pa. 190; Ettinger v. Com., 98 Pa. 338; Com. v. Johnson, 213 Pa. 607; Com. v. Mazarella, 279 Pa. 465.
Otto P. Robinson, Assistant District Attorney, with him John J. Owens, District Attorney, for appellee. -- The juror Kearton was incompetent: Com. v. Clemmer, 190 Pa. 202; Com. v. Dombek, 268 Pa. 262; Com. v. Walker, 283 Pa. 468; Traviss v. Com., 106 Pa. 597.
The admission of photograph of deceased was proper: Udderzook v. Com., 76 Pa. 340; Com. v. Winter, 289 Pa. 289.
As the statute now invests the jury with the duty of determining the punishment in capital cases, evidence prejudicial to defendant and not heretofore admissible has become admissible to enable the jury to determine the punishment for the crime: Com. v. Flood, 302 Pa. 190; Com. v. Schroder, 302 Pa. 1; Com. v. Dague, 302 Pa. 13; Com. v. Parker, 294 Pa. 144; Com. v. Mellor, 294 Pa. 339.
The general rule is that judgment will not be reversed for errors in exclusion or admission of testimony where either before or after or both before and after the ruling complained of, the fact of the utterance had been established by other testimony: Hollidaysburg Sem. Co. v. Gray, 45 Pa.Super. 426; Pyle v. Finnessy, 275 Pa. 55, 58; Levin v. Clad & Sons, 244 Pa. 194; Curtis v. Miller, 269 Pa. 509; Reznor Mfg. Co. v. R.R., 233 Pa. 369; Schultz v. Seibel, 209 Pa. 27.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
The defendant, Stella Sydlosky, stands convicted of murder of the second degree for the killing of the illegitimate male child of Mary Lezinsky, a baby five weeks old. She presents to us four reasons why she should have a new trial: (1) That one of the jurors before whom she was tried misled her counsel into accepting him, when, in answer to the query of the district attorney, whether he knew of any reason why he could not be sworn as a juror and render a true verdict, he answered, that he did not, and failed to disclose that he was a British subject. (2) Because the real purpose of the Commonwealth in introducing in evidence a photograph of the murdered baby was to incite prejudice against her. (3) Because statements imputing guilt to her, made in her presence, and which she immediately denied, were received in evidence over her objection. (4) That she did not have a fair trial.
As to the first reason, it is sufficient to say that we determined in Com. v. Dombek, 268 Pa. 262, that the fact that one of the jurors before whom a defendant was tried and convicted of murder was not a citizen of the United States was not ground for reversal. After the reply to the district attorney's question, the answer to which we do not regard as deceptive in effect, appellant through her attorneys could have further interrogated the juror had she so desired. Not having done so, she cannot complain. Nothing in the Act of April 16, 1925, P.L. 244, alters the principle announced in the cited case. Under that act (section 9) any objection or challenge to a juror based on his disqualification for jury service must be made before the juror is sworn
The situation as it relates to the second reason is this: The photograph of the baby was taken after death. The child had been garrotted, and his hands and feet had been cut off, this to prevent identification, as prints had been taken of them in the hospital where he was born. If the photograph was offered for the purpose of exciting the prejudices of the jury against the accused, it should not have been received: Com. v. Winter, 289 Pa. 284. Our reading of the record, however, does not convince us that such was the intent in laying the photograph before the jury. The district attorney says it was offered for the purpose of showing the identity of the baby and in order that the jury might have a better understanding of the wounds on its body which physicians had indicated in their testimony. As we said in Com. v. Winter, supra, the admission of photographs and the use to be made of them on the trial must necessarily rest largely in the discretion of the trial judge. We are not satisfied that in the present case discretion was abused.
The third reason arises out of the denial of appellant's motion to strike out certain testimony of Mary Lezinsky mother of the murdered child. Following her arrest she had admitted her participation in the crime and entered a plea of guilty. On the witness stand in this proceeding she told with great detail all the incidents connected with it; of the friendship which had existed between her and appellant growing out of their having been employed as servants in the same household; of how when she, the witness, discovered her pregnancy she went to the appellant and solicited her help and advice; of the plans which they made for a place in which she was to be delivered and of their failure; of their eventual hasty trip to a hospital where the child was shortly thereafter born; of the defendant's suggestion that she give a false name and false address to the hospital authorities; of their joint endeavors to find a place for the baby after discharge from the hospital and their inability to get anyone to take him; how she finally got a room in a rooming house; of the defendant's suggestion to her that if she wanted to do away with the child she would have to remove his hands and feet, of which impressions had been taken in the hospital, to prevent identification, and of defendant's offer to get rid of the infant for $50 by killing him. She continued her narrative by telling that the defendant suggested a lonely spot where after dark the baby could be handed...
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