Farina v. Commonwealth
| Decision Date | 27 September 1927 |
| Citation | 221 Ky. 148 |
| Parties | Farina v. Commonwealth. |
| Court | Supreme Court of Kentucky |
1. Criminal Law. — Portion of prosecuting attorney's statement of the case to the jury, which stated that commonwealth would prove that character of defendants was very bad in certain place, held not prejudicial, where evidence of bad character was thereafter properly admitted as bearing on defendants' credibility.
2. Criminal Law. — It will not be presumed on appeal that jury disregarded trial court's instruction not to consider certain statements of attorneys.
3. Criminal Law. — Statement of prosecuting attorney that defendants' counsel might ask state's witness whether or not he had been arrested and how many times, and whether or not he had been indicted, if defendants' counsel would permit prosecutor to ask defendants how many times they had been indicted and arrested in a certain city, held not prejudicial, under Criminal Code of Practice, sec. 340, in view of uncontradicted evidence that defendants had bad character in that city.
4. Criminal Law. — In a criminal case, the credibility of the witnesses is a matter of law for the jury to determine.
5. Criminal Law. — Court of Appeals can set aside verdict finding defendant guilty of felony if it is palpably against the evidence, but it will not do so otherwise, in view of constitutional guaranty of jury trial.
6. Criminal Law. — In a prosecution for robbing a bank, evidence held to sustain conviction of defendants as against defense of alibi.
7. Witnesses. — In prosecution for robbery, where commonwealth's witness testified that he saw defendants and companion at certain point on road leading from place of robbery, and defendants thereafter introduced witness who had been absent during the giving of this testimony, and who had pleaded guilty of robbery involved, and who testified that defendants were not with him at place of robbery, and that he was never at the place where defendants were seen on the road, the commonwealth's witness might be recalled to identify defendants' witness as defendants' companion whom he had seen on the road.
8. Criminal Law. — Questions asked hotel clerk as to facts shown by hotel register held not prejudicial, where the register was introduced in evidence and the facts could have been considered by the jury if the witness had not been questioned about them.
9. Criminal Law. — In a prosecution for bank robbery where defense was alibi, commonwealth's argument that witnesses for defendants had been coached held not unwarranted by the evidence.
BRENT OVERSTREET for appellants.
FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY COMMISSIONER HOBSON.Affirming.
On the first trial of this case appellants were found guilty and their punishment fixed at 8 years' imprisonment. On appeal, the judgment was reversed and a new trial granted for errors occurring on the trial. Farina v. Commonwealth, 212 Ky. 303, 278 S.W. 1097. On the return of the case to the circuit court it was tried again, and the jury failed to agree. On the third trial of the case the jury returned a verdict finding the defendants guilty and fixing their punishment at 5 years' imprisonment. They appeal.
The Portland Bank is on the corner of Twenty-Sixth street and Portland avenue, in Louisville, Ky. On the morning of April 3, 1925, four men, driving a car, stopped at the entrance of the bank on Twenty-Sixth street, entered the bank armed, and robbed the bank. Later a man appeared at the post office desiring to send a package to Mrs. L. Mathews at a certain address in St. Louis. The officer asked him what the package contained. He said "dirty shirts." The package was so heavy that the officer's suspicions were aroused, and a detective was sent to St. Louis. They found that the person named as Mrs. L. Mathews was Mrs. Lawrence Daugherty. She claimed the package. Thereupon the officers opened it and found in it a quantity of gold coin, which was identified by the officers of the bank as part of the money stolen from it. While the officers were there Lawrence Daugherty drove up in a car, but seeing what was going on escaped. The officers in St. Louis then sent to Louisville the pictures of Lawrence Daugherty, his brother Chester Daugherty, Paul Farina, and his brother, Pascal Farina. The Louisville police identified these as the men who had robbed the bank and requisitions were made for their arrest. Paul and Pascal Farina were arrested on April 8th, and put in custody. Some time later Lawrence Daugherty was arrested at the place to which he had fled. Chester Daugherty was not found. Lawrence Daugherty, on being returned to Louisville, pleaded guilty and was sent to the penitentiary.
The proof for the commonwealth as to the identity of the men who committed the robbery is as follows:
Fred L. Klingman, the cashier of the bank, says he was standing at the teller's cage; that three men rushed in the bank armed, one of whom he identified as Chester Daugherty, came to the cage and ordered him to throw his hands up. At this time another man, whom he identified as Lawrence Daugherty, climbed over the door of the cage and gathered up the money in the bank, getting about $3,700. A third man, whom he did not identify, went into the back room where the president was.
E.M. Swain, the president of the bank, was sitting at his table writing when the armed man rushed in with his face distorted, jumping about with his pistol leveled on him, and ordered him to throw up his hands. This man then went into the front of the bank; two shots were fired in there, one of which struck the cashier. Swain says:
"I have never been absolutely positive about it, but that man (pointing to Pascal Farina) is the man."
On cross-examination, he also makes this statement:
He also further says this:
"As well as I remember, he had a dark blue suit on and a light hat."
Fred H. Locker, who was in business across the street opposite the bank, heard the pistol shots over there and ran across the street. When he reached the curbing, a man standing in the door of the bank held him up with a pistol drawn on him. This man he identified as Chester Daugherty; another man was standing in the door, whom he identified as Paul Farina; a third man came out with the money in a cloth. He identified Paul by his having a large nose which curved out, but said that he was not positive, said, "It looks like him."
Geibel Stone was in the store with Locker and followed him across the street a few feet behind him. He identified Paul Farina as the man standing in the bank doorway. He said another man held up Locker, but he did not identify him. He was positive as to Paul Farina. Said he had on a blue suit and a light hat or cap, but no overcoat.
C. Swartzwalder was in the bank at a desk making out a deposit slip. When he went to the cage with it, Chester Daugherty held him up. Paul Farina was standing in the door when Locker came up. He was positive as to his identity, but did not notice his clothing.
Fred Fisher was on the opposite side of the street from the bank delivering meat. He heard a shot and started to crank his machine to go away. Just then he heard another shot and stood there and watched. He saw a man come out of the bank with a pistol and jump in a machine. This man was "the heavy set man over there," pointing to Pascal Farina, "I am positive." He was across the street from the man and looking diagonally at him. He did not have on a dark blue suit and a light grey hat.
R.C. Haley was driving a car up Twenty-Sixth street and stopped when he reached Portland avenue, making a boulevard stop. When he stopped he saw a man standing at the bank door, whom he thought was a friend of his, and he was about to wave at him when the man turned around, and he saw it was not his friend. The man looked around at him, and he then went on with his car. He noticed a car standing at the bank door headed south. There were three or four men sitting in the car facing one another. They had their heads down. After he passed over Portland Avenue, this car passed him going as fast as it could turn a wheel, and he then saw the same man looking out at the back of the car that he had seen standing in the door of the bank, and identified this man as Paul Farina. The curtains of the car were down and he saw the man's face as he passed him through the glass at the back. He says:
"I saw enough of his face so that I thought it was the same man that was in the bank, and to the best of my knowledge it was Paul Farina."
He said he had on a light overcoat and a light hat.
Clarence Wolpert kept an eating house near the Stockyards Bank, in the eastern part of the City of Louisville. He testified that on April 2d, four men came into his eating place and bought sandwiches and went into the dining room and ate them. Each had grips like solicitors carry. He did not notice their clothes; that they looked like foreigners. After they ate, they went out and stood on the corner of the street near the bank. He had occasion to go to the bank to get some change, and as he came back passed the corner on which two of these men were standing. He then looked at them again and identified these two men as Paul Farina and Chester Daugherty, but he did not identify the other two men as they were on the opposite corner and he did not pass near them.
John Miles kept an eating stand at Irvington, which is on the road leading from Louisville to Henderson and in the direction of St. Louis. Four men in a car stopped at his house Sunday morning, April 5th, about 7:30 o'clock. They ordered breakfast. He prepared it for them;...
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