March 17, 1930.
April 14, 1930.
Criminal law — Murder — Alibi — Charge of court — Evidence — Confession — Reasonable doubt.
1. Where it plainly appears that a charge in a murder case, is misleading, or that it has a tendency to withdraw the attention of the jury from material evidence, or to magnify the importance of proof on one side, and belittle those on the other, the trial judge will be reversed for inadequacy of charge in reviewing the evidence.
2. Where an alibi is set up as a defense in a murder trial, a conviction will be reversed where the judge's charge on the question of the alibi was most meager, and the testimony supporting it was not referred to in any way.
3. In reviewing the testimony of an alibi as arrayed against that of the Commonwealth showing guilt and confession thereof, the court should instruct the jury as to its nature, its purpose, and the degree of persuasion necessary to establish it.
4. When an alibi is offered, the testimony to establish it may raise such a reasonable doubt as to entitle the defendant to an acquittal.
Argued March 17, 1930.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
Appeal, No. 177, Jan. T., 1930, by defendant, from judgment of O. T. Phila. Co., Oct. T., 1929, No. 4, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Charles Westley, alias Charles Weston. Reversed.
Indictment for murder. Before McDEVITT, P. J.
The opinion of the Supreme Court states the facts.
In his charge, the trial judge commented upon the testimony as follows: "Now, what are the facts? According to the Commonwealth, on the night of June 19, 1929, the man conducting a drug store on the southeast corner of 13th and Lombard Streets, in the City and County of Philadelphia, was shot and killed during the perpetration of a robbery. On the 27th day of September of this year this defendant was arrested. Within a period of four or five days he made two or three confessions. Finally on the 2d of October he made a confession in which he stated that he was the perpetrator of the crime; that he had shot and killed him in the perpetration of that robbery. On the 9th or 10th of October, escorted by Inspector Connelly and detectives, he went to the scene of the robbery — according to the testimony of the detective on the stand an hour or so ago. He told the inspector where to stand. He took the position he had when he committed the murder, and when he pointed the gun at the dead man. I say to you if this defendant made that confession voluntarily and it was not made by threats or by promises, then it is just as good evidence as any other evidence that has been produced from that witness stand. If you believe the testimony, which is contradicted by the city policeman, that he was forced and that violence was resorted to, and he was compelled to make such a statement, then it becomes a disputed question of fact. It is for you to say whether he was compelled to make such a statement, then it becomes a disputed question of fact. It is for you to say whether he was compelled to make such a confession which is untruthful, under those circumstances. Those questions of fact are for you. Of the facts you are the sole arbiters. If he went into the drug store to commit a robbery and did not intend to commit murder, and did commit murder, it makes no difference, it is murder of the first degree. If he went in for the purpose of killing the man in order to get his money it is murder of the first degree. If he killed him while he was robbing him and did not intend to kill him, it makes no difference, it is murder of the first degree, although the act of assembly says you can fix it at second degree if you want to. If you are convinced by the amount of testimony beyond a reasonable doubt, that he committed this murder in the perpetration of a robbery, that the confession was made voluntarily to the police and not under threats or abuse, then he ought to be convicted."
As to the confession made by the defendant, the court further instructed the jury: "The Commonwealth has introduced a confession. The law says a confession is a voluntary declaration made by a person who has committed a crime to another, of the agency or participation which he had in the same place. The Commonwealth to establish such a declaration must prove the conditions under which it was made, that it was voluntarily made, and that it was made to the proper party to accept it. The sole character and situation of the person making the confession should be considered. A confession may be orally communicated to the jury by a witness who heard and remembered it and a confession may be received by a district attorney."
As to the alibi set up by the defendant, the court charged as follows: "The defendant has set up a defense known as an alibi in repudiation of his confession. The defendant must establish to your satisfaction his defense, the alibi, or his defense fails. An alibi defense is not only a denial of a crime, but it is the effort of the defendant to establish a set of facts which would put him in a different place than that of the commission of the crime, and make it physically impossible for him to have committed the crime with which he is charged. When he does that, he must prove that defense to your satisfaction or that feature of his defense fails."
Verdict of guilty of murder of the first degree with penalty fixed as death. Defendant appealed.
Error assigned, inter alia, were portions of charge, quoting them.
Edward W. Wells, with him Colbert C. McClain, for appellant, cited: Com. v. Barrish, 297 Pa. 160.
Clare Gerald Fenerty, Assistant District Attorney, with him John Monaghan, District Attorney, for appellee. — The court sufficiently instructed the jury as to the alleged alibi: Rudy v. Com., 128 Pa. 500.
In a criminal case, the charge must be read as a whole and any error alleged must be taken in connection with the general context: Com. v. Welch, 291 Pa. 40.
Robert C. Finley, who was employed as a clerk in a drug store at 13th and Lombard Streets, Philadelphia, was shot to death in the store on the night of June 19, 1929, by a robber who had entered it. On September 27th, appellant was arrested for a misdemeanor, having nothing to do with the murder, and while in custody was interrogated as to that crime, which had been committed in the neighborhood where he lived. He at first denied all knowledge on the subject and thereafter alleged that he had seen another colored man commit it; subsequently and while still in custody, on October 2d, he acknowledged himself guilty of the crime and several statements which he made amounting to confessions were reduced to writing and signed by him. These he repudiated on his trial. The jury found him guilty of murder of the first degree, with the penalty fixed at death.
There are a number of errors assigned. Only one of them merits serious consideration. The reporter's notes will show how the trial judge charged the jury on the facts of the case as they were developed by the testimony and all that he said on that score. He failed to present to them what we regard as most important testimony which the jury should have been directed to consider in deciding whether appellant was the man who did the shooting. His defense was an alibi; — that he was at home at the time of the crime — and he called several witnesses to substantiate it. Two witnesses called by the Commonwealth, Samuel Turner and Kit Wright, said they were sitting on the opposite side of 13th Street from the drug store where the murder took place, just South of Lombard, that they heard the shot and saw a colored man running down 13th Street from the direction of the drug store, — Turner, that he had a good look at the fleeing man, that he had seen the defendant before the shooting and that the defendant was not the man. Wright too said that he observed the fleeing man and that he was sure he was not the defendant. If this testimony was believed by the jury, it would have gone a long way towards working an acquittal. Their attention should have been called to it and the failure to make any comment upon it renders the charge an inadequate one. The charge as a whole did not fairly present the case and unduly stressed the evidence of the Commonwealth. The duty of the trial judge in summing up the evidence is laid down in Com. v. Kaiser, 184 Pa. 493, 499: "It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing." See also Com. v. Dennery, 259 Pa. 223, 230. The charge in the instant case does not come up to this standard. "Where . . . . . . it plainly appears that the charge is misleading, or that it has a tendency to withdraw the attention of the jury from material evidence, or to magnify the importance of the proofs on one side and belittle those on the other, . . . . . . a trial judge will be reversed for inadequacy of charge in reviewing the evidence": Com. v. Colandro, 231 Pa. 343, 356; Com. v. Russogulo, 263 Pa. 93; 16 C. J. 965. The instructions on the defendant's alibi were most meager. The testimony supporting it was not referred to in any way. Where a human life is at stake, the jury should have explained to them, not alone what an alibi is, but how the testimony which the accused offers tends to sustain it, provided it does. "In reviewing the testimony of an alibi as arrayed against that of the Commonwealth showing guilt, the court should instruct the jury as to its nature, its purposes, and the degree of persuasion necessary to establish it": Com. v. Barrish, 297 Pa. 160. "When an alibi is offered, the testimony to establish it may raise such a reasonable doubt as to entitle him to an acquittal": Ibid.
The fourth assignment of error is sustained and a new trial awarded.