Commonwealth v. Gross

89 Pa. Super. 387, 1926 Pa. Super. LEXIS 79

• Court: Superior Court of Pennsylvania
• Decided: October 6, 1926
• Docket: Appeal 221
• Status: Published

Opinions

Opinion by

Henderson, J.,

The defendant who was a hotel keeper in Reading was indicted for the transportation of intoxicating liquor. He and two companions, Rocktashel and Levan, were riding eastwardly from Reading in a closed Cadillac car owned by the defendant their destination being Pottstown, where a brother of the defendant kept a. hotel or restaurant. Rocktashel was driving the car; the defendant was sitting beside him in the front seat and Levan was in the rear seat. The car was so driven that it upset on the left side of the road, at about eight o’clock in the evening of April 16th, at a locality known as Monoeacy Hill. Several persons arrived at the scene of the accident, very soon thereafter, who testified that they saw two persons removing packages from the car as it lay on the side of the road and transferring them to a near-by field. These were found to be ten five-gallon cans of alcohol. Eocktashel and Levan left soon after the accident, and the defendant about twenty minutes thereafter, according to his statement, his automobile being left by him at the roadside.

The testimony of several witnesses pointed very strongly to the truth of the charge contained in the indictment, that the defendant was engaged in transporting the alcohol in his car. The character of these witnesses and the directness of their evidence fully supported the verdict returned. The testimony of the defendant consisted of a denial that he was transporting the liquor, or that it was in his car; the evidence of his companions though to the same effect was less direct and positive. The assignments of error relate to the charge of the court, the complaint being that it was not impartial and contained an expression that from the evidence the jury in the opinion of the court should not have any difficulty in arriving at a verdict of guilty. There were .also comments on portions of 1 he testimony and the importance to be attached thereto. A perusal of the evidence convinces us that the objections to the charge ought not to be sustained. It has been repeatedly said that “it is not error for a judge to express his opinion upon the facts if done fairly,” and that it may be his duty to do so in some cases provided he does not give binding directions or interfere with the province of the jury: Commonwealth vs. Orr, 138 Pa. 276. It was held in Commonwealth v. McGowan, 189 Pa. 641, which was a case of felonious homicide, that the court had an undoubted right to express its opinion upon the evidence and, where the jurors were instructed that the questions of fact were determinable by them and not by the court, the expression of the opinion furnished no ground for complaint. It was said by Chief Justice Fell, in Commonwealth v. Cunningham, 232 Pa. 609, that “It is the undoubted right of a judge and often it is his duty to express to the jury his opinion of the weight and the effect of the evidence. The one limitation of the right is that there must be reasonable ground for his statement and that it is not made as a binding direction but leaves the jury free to act.” This was also a trial on an indictment for murder. The same rule is stated in Commonwealth v. Lessner, 274 Pa. 108. Of like purport are, Commonwealth v. Havrilla, 38 Pa. Superior Ct. 292, Commonwealth v. Bloom, 88 Pa. Superior Ct. 93.

The court’s review of the facts was warranted by the evidence. The jury was emphatically directed not to take the court’s recital, but to take the testimony as they recalled it, not as stated by the court. Part of the direction was: “I am endeavoring to give it [testimony] to you as I recall it, but it is your duty to take that testimony as you heard the witnesses give it. You will have to determine where the truth of this testimony lies.” At the conclusion of the charge the court said: “I say further to you that, while I have a right to express to you my opinion, I want you to understand and to feel that you are entirely free to determine the guilt or innocence of this defendant, and it is your duty, after giving all the evidence in the case careful and dispassionate consideration, to decide. You ,are not bound in any way by the opinion of the Court; you are entirely free to decide, and it is your duty to render a true verdict according to the evidence in the case.” The evidence was of such a character as to leave no doubt as to the propriety of the verdict and we ¡are not convinced that the conclusion reached was due to any element of unfairness in the charge. The court did not give binding instructions but left to the jury the determination of the guilt or innocence of the defendant. The circumstances attending the accident and the conduct of the defendant were acts which a bare denial by the latter and his companions did not sweep aside.

Dec. 10, 1926:

The assignments are overruled, the judgment affirmed, and it is further ordered that the defendant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been performed at the time this appeal was made a supersedeas.