49 Pa. Super. 344

Commonwealth v. Duffy

Decided March 1, 1912

Superior Court of Pennsylvania · decided 1912-03-01

Appeal, No. 121, Oct. T., 1911, by defendants, from judgment of Q. S. Phila. Co., April T., 1910, No. 288, on verdict of guilty in case of Commonwealth v. Thomas J. Duffy, John J. Lynch, John D. Sweeney, Charles Shobert and Richard Debussey. Indictment for conspiracy. Before Willson, P. J. The facts are stated in the opinion of the Superior Court: When Solomon Cole was on the stand he was asked this question: “Q. When they took you to the desk, what did they say or do? A. One of the men said, ‘ Don’t slate them.’ Q. Said what? A. Don’t slate them.” Mr. Scott: “Q. Where was this?” Mr. Taulane: Up at the station house. Mr. Scott: I object unless the defendants were present. The Court: I cannot separate the conspiracy charges. The indictment charges conspiracy between the defendants named and other persons not known to the grand jury. Mr. Scott: I take it, before they could establish the statement made in the absence of the defendants, the conspiracy charge, they have to first establish there was a conspiracy. The Court: No, sir, they can only establish conspiracy by building' it up in detail. You cannot establish conspiracy, unless in a very rare case, if there was ever such a case, in which it could be shown that the defendants got together in the presence of the witness and agreed to enter into a conspiracy. Mr. Scott: There is no question about your Honor’s law, unless it is shown that the statement was made by one of the co-conspirators. The Court: I will admit the evidence. I cannot tell whether it will have any bearing or not. Exceptions noted for defendants by direction of the court. [1] Mr. Taulane: “Q. You got to the station house and you are now at the desk at Front and Westmoreland? A; Yes, sir. Q. Tell the court and jury just what took place, what this officer said, or that officer said, and what you all said. A. They did not say anything else.” Mr. Scott: I object to the question. The Court: That is the same question. The Court: What do you mean by these three people? Mr. Taulane: The three men under arrest. Objected to. Objection overruled. Exception noted for defendants by direction of the court. Mr. Taulane: “Q. You are taken to the desk? A. Yes, sir, taken to the desk and they did not slate us. Q. They slated you? A. No, sir, they did not. Q. Why did they not slate you, if you know?” Objected to. The Court: He may ask what was said. Mr. Taulane: “Q. What was said there about slating you? A. The man in the patrol said, ‘Don’t slate them.’ Q. The man in the patrol said that? A. Yes, sir. Q. What do you mean, a patrol officer, or who? A. An officer. Q. The officer said, ‘Don’t slate them.’ Then what did they do? A. Took us back. Q. They did not slate you?” Mr. Scott: He did not say that. Mr. Taulane: “Q. Did they slate you, as far as you know? A. No, sir. Q. When you got back there, what happened? A. When we got back there, one of the officers in the patrol said-” Mr. Scott: I object. The Court: He may state it. Exception noted for defendants by direction of the court. [2] Mr. Taulane: “Q. What did this officer say as you approached the station house? A. He said, ‘ Don’t take them in the front way. Take them around the back way.’ Q. Did he give any reason? A. No, sir, he said the lieutenant said so. Q. The lieutenant said so? A. To bring them around the back way.” Edward McKenzie was asked this question: Mr. Taulane: “Q. Go on. A. Along about three o’clock in the afternoon a gentleman came around to the cell and he says, ‘What are you fellows’ names, if any of your friends should happen to come after you that we can give them an explanation.’ ” Mr. Scott: I object to that. Mr. Taulane: It is a part of the conspiracy. These men who had the men in the station house are just as much in it. Objection overruled. [3] Exception noted for defendants by direction of the court. “A. We gave them our names. Q. Was that the first time you were asked for your names? A. That is the first time. Shortly after that-” Daniel D. Test testified as follows: “Q. Whom did you see when you got to the station house? A. The house sergeant, and there were two or three officers. Q. Which house sergeant? A. I don’t know. He was a sergeant whose name I do not know. There was a special officer— one of the special officers — was the only man I know. He took no part in the conversation. We asked them about these men-” Mr. Scott: I object to this conversation. Mr. Taulane: This is the very gist of the commonwealth’s case. If these men were taken to the station house, not slated, information refused, simply had been carted away, it was evidently all a part of the same conspiracy, and I want to show the efforts made by the witness, who was a citizen, to go there and find out about these men and get the ordinary discharge. Mr. Scott: I object to any conversation the witness had ' with some person. Mr. Taulane: In charge of the station house. Mr. Scott: I object to any conversation that the witness had with’ any person not a defendant and there being no evidence of any connection with the case. Mr. Taulane: To be followed by conversations of similar character the next day with the defendant in the case. The Court: “ Q. Were any of the defendants there at the time? A. No.” The Court : The substance of the allegation here is that the police authorities in control at this police station combined for the purpose of accomplishing certain evil and criminal results. I understand the witness to say that somebody in control of the office, some officer, was the one with whom he had the conversation. The point is not one upon which I feel entirely clear; however, I will admit the evidence. Exception for the defense noted by direction of the court. [4] The Witness: “ The house sergeant with whom I talked said they knew nothing about it. Dr. Golden and I withdrew. We thought there was nothing more to do. I then called up the Public Ledger office-” The court charged in part as follows: [All that is necessary to establish satisfactorily and clearly in a case of conspiracy is, by evidence which may be scattered, which may relate at one time to one, two or more defendants, and at another time to another — all that is necessary is to show that the men charged were in point of fact, in the belief of the jury, working to accomplish a certain wicked end. If that is shown, then all is shown that is necessary in order to establish the charge of conspiracy. And, in this particular case, the question is, does the evidence show that?] [5] [The law does not say that a jury must be able to say, “We know that man is guilty.” But the law does say, that the jury must be able to say, “We sincerely believe upon the evidence that the man is guilty.” And a juryman has no right, for the purpose of evading responsibility or acting a cowardly part, to say, well, I doubt as to whether the man is guilty.] [6] Verdict of guilty, upon which the court sentenced each of the defendants to undergo imprisonment in the Philadelphia county prison for the term of one year. Defendants appealed. Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5, 6) portions of charge as above, quoting them.

Relies on Elijah Phelps v. Jacob Mayer · Curtis v. Winston · Haines v. Commonwealth

Reversed · Decided 1912-03-01

Bice, P. J.,

¶1dissenting:

¶2It cannot be contended that there was not sufficient competent testimony in the case to warrant the jury, if they believed it, in finding the defendants guilty. The grounds upon which the judgment is to be reversed and the cause sent back for a retrial are, that the court erred (1) in the admission of incompetent evidence, and (2) in its charge to the jury. Being unable to concur in the judgment, it seems right, in view of the very able discussion of *369the case in the opinion of the majority, that I should at least state the grounds of my dissent.

¶31.1 am of opinion that the first and second assignments of error should be overruled, not merely for the technical reason that the defendants did not move to strike out the testimony, but for the substantial reason that, as the evidence stood when the commonwealth rested, sufficient connection was shown between the persons whose statements were put in evidence and the defendants in the case to make the testimony competent, and, therefore, the court would not have been bound to strike it out, even if the motion had been made. The order of testimonyis a matter very much within the discretion of the judge trying the case, and the admission of testimony not fully competent at the time of its admission is ordinarily no ground for reversal, if it be rendered competent by the subsequent admission of other testimony.

¶42. My conclusion that the third and fourth assignments of error should be overruled rests on different grounds. The fact that certain persons came to the prisoners’ cell about three o’clock p. m., and asked their names, seems to be irrelevant, but I cannot see that the admission of the fact in evidence was prejudicial to the defendants, or ground for reversal. The fact that until that time the prisoners’' names had not' been taken or asked for, was pertinent, under the circumstances. I am inclined to the opinion, also, that the evidence alluded to in the fourth assignment of error was not harmful to the defendants. No fact was elicited, and there was nothing in the answer of the house sergeant which tended to incriminate them. The most serious objection, it seems to me, that may be made against this testimony, is that it was irrelevant. But the irrelevancy was not of such gravity and of such misleading character as to be ground for reversing the judgment on this assignment.

¶53. I am of the opinion that the assignments of error to the judge’s charge should be overruled because no exception was taken, or asked for, to the charge, before *370verdict rendered, and this was essential in order to bring the charge on record for purposes of review. Curtis v. Winston, 186 Pa. 492, which is authority for this proposition, has been followed in a large number of cases since the time it was rendered, and amongst them, I refer to Com. v. Johnston, 44 Pa. Superior Ct. 218 (a criminal case), and the recent cases therein cited. There is a distinction between asking for an exception and the sealing of a bill, and upon that subject I call attention to Haines v. Com., 99 Pa. 410, s. c. 100 Pa. 317, and Phelps v. Mayer, 56 U. S. 160. In my judgment, the sealing of a bill by the judge, incorporating parts of his charge, several weeks after the verdict was rendered, particularly for the reason upon which it was asked, could not have the effect of curing the omission to except to the charge before verdict rendered.

¶6I feel no hesitation in invoking the rule above referred to because, after consideration of the charge, as a whole, I am of opinion that no injustice will result therefrom.