Page images

law upon the subject would be set forth at length when that portion of our charge was arrived at, and that I would then specifically call attention to the points, and that what was there said would be an answer to them. In Commonwealth v. McManus, 143 Pa., 64, it was held that it is sufficient to answer a defendant's points by reference to instructions given in the Court's own language in the general charge, and that where the law applicable to the case has been plainly, fully and accurately stated, the defendant has no right to have his points answered in any set form. In pursuance of this plan, the following instructions in the general charge were given: "No one of the witnesses called, except Rocco Tassone and Toney Mastercerne, have testified that they heard Augustine Vitale advise, procure, counsel or command Rocco to commit this crime. If the jury shall find that Rocco killed Collata, then, under the law, Rocco is considered what is called an accomplice; and if Mastercerne and Vincenzo were also parties to the crime, then they, too, fall under the same class. It will be for the jury to ascertain that fact. They have all been indicted, but whether or not any or all participated is for the jury. If the jury believe that any one of them, even though now under indictment, was not a participator in the crime, such one would not be an accomplice. An accomplice is defined to be a conferate or a party to a crime, and it is held by the Courts that a jury may be lieve an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant's guilt beyond a reasonable doubt, they may convict. If the testimony of the accomplice, his manner of testifying, and his appear ance upon the witness stand, impress a jury with the truth of his statements,' there is no inflexible rule of law which prevents a conviction because the case rests on the uncorroborated testimony of an accomplice; but the uncorroborated testimony of such a person should be received with caution and should be carefully considered and weighed by the jury, and if the jury disbelieve it, they ought not to convict the defendant. The de

gree of credit to be given by the jury to the evidence of an accomplice is exclusively within their province; but, on acount of the character of such evidence and the source from which it comes, it has been held to be the duty of the Court to admonish the jury of the danger of convicting upon the uncorroborated testimony of an accomplice, and this we accordingly now do. It is also the law that, where an accomplice to a crime testifies to the circumstances of it, it is competent for the Commonwealth to verify, as far as possible, his statement, and it is not necessary that such corroborative testimony should extend to the whole of the accomplice's testimony; and that, if it is shown that he has testified truly in some particulars, the jury may infer that he has done so in others. Whether or not the testimony of such as are found to be accomplices has been corroborated is for the jury under all the testimony presented, and whether they have been sufficiently corroborated is for the jury. Where the jury consider corroboration necessary, one accomplice cannot corroborate another; but whether the testimony of accomplices is corroborated or not, the jury may believe them, if they believe, beyond a reasonable doubt, that they are telling the truth. It is this part of the charge that we referred to in answering the points, and we now say that this is the answer that we give to the fourth, sixth and nineteenth points. If, however, the jury disbelieve the testimony of Rocco and Mastercerne as to the defendant advising, procuring, counseling or commanding Rocco to murder Collata, then the verdict ought to be one of not guilty; for these important features of the case which connect the defendant with the murder are testified to alone by these witnesses."

Was there a correct statement of the law in the charge? An accomplice is a competent witness. His credibility is for the jury. The rule in regard to the testimony of an accomplice does not extend further than to require of the Judge to caution and admonish the jury as to the uncorroborated testimony of an accomplice. In Commonwealth . Sayars, 21 Sup.. 75, it was held that, "although the

uncorroborated testimony of an accom- an accomplice, and convict without any corroboration of his statement

In Kilrow v. Commonwealth, 89 Pa., 480, a point was submitted in the following words: "That it is always dangerous to convict a defendant on the uncorroborated testimony of an accomplice, and it is the duty of the jury to acquit the defendant in such case." The point was refused by the Trial Judge, and the Supreme Court, in affirming the refusal, said: "The Court said very properly that it was 'not necessary that an accomplice should be corroborated upon every meterial part of his testimony; for, if this were required, a conviction could be had without his testimony at all." In Commonwealth v. Lenhart, 40 Sup., 572, it was held that the jury "must receive the testimony of an accomplice with caution throughout." See, also, Carroll v. Commonwealth, 84 Pa., 107.

plice should be received with caution, yet there is no rule of law forbidding a conviction upon his evidence alone." In Cox v. Commonwealth, 125 Pa., 94, it was held that "a jury may believe an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant's guilt, beyond a reasonable doubt, they may convict. If the testimony of the accomplice, his manner of testifying, his appearance upon the witness stand, impress a jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction. In such case, it is for the Trial Judge, who also heard the evidence, noticed his manner and appearance upon the stand, and who can judge equally with the jury as to his credibility, to say whether he is satisfied with the verdict. If both the jury and the court are satisfied that he has told the truth, there is If reference is made to the part of the no reason why the verdict should not charge which answered the points, it will stand. If we lay down an inflexible be observed that the instructions given rule in regard to corroboration, there to the jury were, to a large extent, in may be instances when criminals will the words of the Appellate Courts, as escape, although both jury and Court are set forth in some of the cases cited above. satisfied, beyond a reasonable doubt, of The instructions in the general charge their guilt." To the same effect is Com- were almost in the words of at least two monwealth v. Craig, 19 Sup., 81. In of the points, the fourth and the nineEttinger v. Commonwealth, 98 Pa., 338, teenth, which also seem to be based on Mr. Justice Sterrett said: "The degree the above authorities. The sixth point. of cre 'it that should be given to an acwas also covered in the charge, though complice is a matter exclusively within not in the exact language of the point; the province of the jury. It is competent for, in fact, it was merely a theoretical for them to convict on his uncorroborat- point, which, even though affirmed, threw ed testimony; but the source of such evi- no light upon the controve sy. I did not dence is so corrupt that it is deemed un- instruct the jury, in exact words, that it safe to rely upon it alone; and hence it would be unsafe and dangerous for them is the practice of Courts to admonish to convict the defendant because I do the jury of the danger and advise against not believe that this, under the evidence, a conviction on the testimony of an ac- would have been consistent with the law complice, unless he is corroborated, to or the facts of the case; but I admonsome extent, especially as to the person ished them as to the danger of convictof the party he accuses: Watson v. Com- ing upon the uncorroborated evidence of monwealth, 28 Pittsburgh Leg. Jour., 89. an acomplice. In Commonwealth v. The principle which allows the testimony Craig, supra, it is said that there is "no of an accomplice to go to the jury for set form of expression in which such adtheir consideration necessarily involves monition and advice must be given," and the right to believe and act upon it. I am of the opinion that some of the exThe general rule appears to be that, pressions used in the cases are meant notwithstanding the admonition and ad- more for the guidance of the Court than vice of the Court, the jury may, if for the jury, and expressly so, since the they see fit, act upon the evidence of parties have become witnesses. Is it at

all times obligatory on a Trial Judge to tell a jury that to convict a defendant is an unsafe and dangerous thing, and, yet, to allow them, nevertheless, to convict upon such evidence? Should the jury be permitted to do what the Court deems to be an unsafe and a dangerous thing? The evidence of an accomplice is competent evidence, and, properly guided by the Court, the jury, who see the witness, have a right to pass upon his testimony; and if the Court, afterwards, concludes that the defendant's interests have not been properly safeguarded, it should unhesitatingly correct the error by granting a new trial.

But, outside of this, an examination of the testimony will show that this principle does not, in its strictness, apply to this case; for there was corroboration as to every material point arising. It was testified by Mamie Mastercerne that the defendant, Toney Vitale and Sam Russo had come to Marietta, on three distinct Sundays, and that, on one occasion, they had gone from Marietta to Billmyer. Toney Mastercerne, her husband, testified to the same facts. John Gilgore testified that he saw them together in Marietta, and Joseph Pungali and Vincenzo Carraccils testified that they were at Billmyer. Vincenzo and Mastercerne testified that they were afterwards all together in the cellar of Toney Vitale, in Lancaster. When Augustine Vitale took the stand as a witness, he himself said that he was at Marietta visiting Mastercerne, and that his "brother advised" him "to go up" that they went from Marietta to Billmyer by train, and saw Vincenzo there, and that they drove back to Marietta by wagon, and that, subsequently, he, Sam Russo, Toney Vitale, Mastercerne and Rocco were all together in the cellar at Lancaster. Mastercerne testified that, when they were in Marietta, "they calle Rocco aside and told him about this job that was to be done," and that Rocco said, "No, he wouldn't do it | 'because that man did not do anything to me'"; that the defendant offered Rocco $200.00, and that, "after Augustine told Rocco to kill Collata, Rocco didn't want to do it, and Augus


tine would force him to do it; if not, they would take Rocco's life;" that "then Rocco agreed to do it, and Rocco said: Well, if you want me to do it, I will do it; but, if anything happens, you will have to be responsible for it. cerne also testified that, after the murder, the defendant gave him $57.00 to give to Rocco, and told him to tell Rocco to get out of the state. This testimony was denied by Vitale, and its truth as between them was, therefore, a matter for the jury.

The evidence of the police. officers that they saw all of these parties with Mastercerne on the night of the killing was simply to show that there was some connection between them, and, while of little weight, it was, I think, evidence for that purpose. It is, of course. well settled that, where proof of a conspiracy to commit a crime has been given, all the acts and declarations of the parties during the progress of the conspiracy may be shown. See Commonwealth v. Bubnis, 197 Pa., 542. As this was on the night of the killing, it was thought that it was sufficiently close, in point of time, to warrant its admission for this particular purpose.


The fifth point reads as follows: "The testimony of Rocco Tassone, Toney Mastercerne and Vincenzo Carraccils, all being self-confessed accomplices, cannot be considered by the jury as corroborating each other; the testimony of each must stand alone, and it would be unsafe to convict the prisoner on such testimony, unless such testimony is corroborated by other facts and circumstances independent of the testimony of both." point was refused. The reason for so doing was, that it assumed facts which were in dispute. Conceding that Rocco Tassone was a self-confessed accomplice. it by no means followed that Toney Mastercerne and Vincenzo Carraccils occupied the same position. As a matter of fact, they have both been since acquitted by juries of being concerned in the commission of this crime. But it was for the jury to ascertain whether or not they were accomplices, and the assumption of that fact in the point rendered it impossible to affirm it. In Commonwealth v. Buccieri, 153 Pa., 535, it was held that

to the Trial Judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude. must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. They are first to be weighed by the Trial Judge, who sees and hears the juror, and, in the exercise of a wide discretion, may conclude that he is not competent to enter the jury box for the purpose of rendering an impartial verdict, notwithstanding his words to the contrary. . . . Nothing short of palpable error will justify a reversal of a Trial Judge in passing upon a challenge for cause." Nor was the defendant injured by this ruling. It is true that he exhausted all of his challenges; but it is equally so that

ed were passed by him as satisfactory. He did not raise this point as to any of them. He, therefore, lost nothing by the refusal of the challenges for cause.

it was not error to fail to answer a point which assumed as true facts in dispute. The fourteenth, fifteenth and sixteenth reasons relate to the action of the Court in overruling certain challenges for cause. On the trial of Commonwealth v. Toney Vitale, who was also charged with being an accessory to this crime, and convicted, Cassius W. Shade, Jacob E. Baughman and Charles Sheaffer, who were members of the regular panel of jurors, served upon that jury. When they were called in this case, they answered all the questions correctly and were then challenged for cause by counsel for the defendant on this account. They said they had formed no opinion as to the guilt or innocence of the prisoner, and could be impartial, and I think they told the truth. They were then challenged peremptorily by the prisoner. No authority against this ruling has been presented. I think it was correct. The latest authorities upon the subject are these: In Common-the jurors sworn after they were exhaustwealth v. Henderson, 242 Pa., 372, it was said: "The particular juror whose examination is called to our attention by this assignment first asserted that he had conscientious scruples against capital punishment which he feared he could not overcome, but subsequently said that he could render a verdict according to the evidence. Had the Court permitted this juror to serve, it would not have been error; but, as just stated, such matters are peculiarly for the Trial Judge, and a ruling thereon will not be reversed unless a palpable abuse of discretion appears." And in the case of Commonwealth v. Croson, 246 Pa., 536 (Advance Reports), it was decided that "the Trial Judge did not improperly exercise his discretion in overruling defendant's challenge for cause of a juror who admitted that he held an opinion as to the guilt or innocence of the defendant, formed from reading an account of the case, where such juror stated that he would be able to render such a verdict | as would be warranted by the evidence. unaffected by the opinon which he held." In Commonwealth v. Sushinskie, 242 Pa., 406. Mr. Justice Brown, delivering the opinion of the Court, said: "The challenge of a juror for cause is addressed

In his address to the jury, Mr. Davis attempted to read from certain notes taken by his clerk and stenographer, William J. Coulter, at the preliminary hearing. The Court said (pages 329 and 330): "Mr. Davis may refer to any memoranda that he has made, or to any of the testimony that was produced on this trial, or he may refer to the Reporter's notes of the testimony that were taken upon this trial; but he may not refer to something that was taken before the trial and read it, in that way, to the jury." This ruling forms the substance of the eighteenth reason assigned. Without wishing to cast reflection upon any one, I think that the attempt to read the paper in this way was improper. To excuse it, it must be attributed to the zeal of the counsel in the heat of the trial. Mr. Coulter, as has been said, was Mr. Davis's clerk and stenographer. For him, he attended the hearing before the magistrate. On the examination of Rocco Tassone (who, after all, was only a witness in this case, and subject, like all other witnesses, to the rules of evi


N. Franklin Hall, Esq.

N. Franklin Hall was born near Bowmansville, Brecknock Twp., Lancaster County.

He studied law unler J. W. Johnson. Esq., and was admitted to the bar in 1836. He became active in politics and after holding the office of County solicitor was in 1912 elected to the office of County controller.

dence), Mr. Davis asked him certain questions taken from Coulter's notes, all of which he answered in the affirmative, except one. To this question he answered that he could not recall. The paper was not offered, and, of course, could not have been admitted. At best, After attending the local public schools Coulter could only refresh his memory he attended the Schuylkill Valley Semifrom it. Coulter stated he could not tes-nary and subsequently Millersville Nortify without his notes, and could not tell mal School, after which he taught school whether he had gotten everything down. for ten years. It was, therefore, manifest that he could. not positively say as to what Rocco had not testified on that occasion. This is what he was asked to do. Even, however, if this ruling was wrong, the defendant lost nothing by it, for he immediately called J. W. Brown, Esq., who was present at the hearing and remembered what took place. Mr. Brown testified that Tassone had not there said anything about the offer of $200.00 made by Vitale to him, and that the subject was not raised by anybody. Now, with this situation before him, Mr. Davis wished to read, under the guise of argument, all of the notes taken by Coulter, and, when objection was raised, the above ruling was made. How, under the circumstances, there can be any doubt as to its correctness, I cannot see.

This case has been reviewed at considerable length. It was the purpose of

He died Thursday, February 26, 1915. at 6.40 p. m.

Mr. Hall was a lawyer of ability, which coupled with a tireless industry, enabled him to handle with success the business entrusted to him. He was a man of forceful character, original in his thought and ideas. His appreciation of humor and his genial disposition made him many friends and he was above reproach in all his dealings.

It was in accordance with Mr. Hall's specific request that no bar meeting was

held to take action on his death.

the Court to give the defendant a fair O. C. OPINION AND ADJUDICA

and impartial trial. I believe that this was done, and, once more carefully re-. viewing the evidence, I am satisfied with the verdict as rendered. I do not think there is any reversible error shown, and, if I am wrong, an Appellate Court will give the defendant his full measure of justice.

The reasons filed are now overruled, and the rule for a new trial is discharged. Rule discharged.

(See following case.)


Thursday, February 25, 1915.


Estate of Thomas C. Collins, dec'd. Rule to pay charge on real estate made absolute. Rule to pay interest on charge on real estate dismissed.


Jeffries Miller, city.
Cyrus C. Bair, Eden.

Emma D. Weiss Bauman, city.
Barbara S. Maun, Manor.
Elizabeth H. Ebersole, Conoy.


Estate of Margaret Wilson (Hilton's Appeal). Affirmed.

Edelson, appellant v. Norwich Union Fire Ins. Co. Affirmed.

« PreviousContinue »