Commonwealth v. Emmett , 77 Pa. Super. 396 ( 1921 )

Opinion by

Linn, J.,

Appellant and another were convicted of arson; he appealed to this court and we were required to sustain his appeal for error in refusing to permit proper cross-examination of witnesses called by the Commonwealth; the decision is reported in 74 Pa. Superior Ct. 86. He has been tried again and another jury has found him guilty. He now complains as follows: (1) of the refusal to continue the trial on account of his wife’s illness; (2) of the instructions to the jury concerning the weight to be given to the testimony of an accomplice; (3) of the refusal to direct an acquittal for alleged defect in the indictment in not containing an averment that the Lyceum Theatre building (one of the buildings burned) was not owned by defendant; (4) of the refusal to discharge defendant upon the ground that by informing the deputy state fire marshal that defendant did not know how the fire started, he was exempt from prosecution by section 6 of the Act of June 3,1911, P. L. 658.

1. We have considered the evidence taken on the motion to continue the trial until the next term on account o'f the illness of appellant’s wife. The trial judge saw and heard the physicians who testified about her condition and her ability to be present; the question is not whether we would reach the same conclusion on the evidence, but whether there is any evidence supporting his' conclusion; applying the familiar rule we are not justified in differing from the court below and must therefore overrule the first assignment of error: Com. v. Craig, 19 Pa. Superior Ct. 81, 93; Com. v. Hazlett, 16 Pa. Superior Ct. 534, 539. Moreover, she testified in the first trial and the evidence then given by her was read to the jury in this trial, and the jury was specially instructed with regard to it.

2. On his appeal from his first conviction, appellant complained that the jury had been erroneously instructed concerning the weight to be. given to the testimony of an accomplice. In then declining to sustain that complaint we said, “In the thirty-first assignment complaint is made that the court refused to direct a' verdict for the defendants. This was evidently based on the assumption that a conviction should not be had on the uncorroborated testimony of an accomplice. It is the practice of courts to admonish the jury of the danger of a conviction on the testimony of an accomplice and to advise against it unless he is corroborated to some extent, but no case has been brought to our attention in which a verdict has been directed by the court for such a reason. A remedy is open to the accused by a motion for a new trial where there is a conviction in disregard of such instructions. The corroboration should be to the person of the accused and not simply to the fact of the crime. Corroboration in matters not connecting the accused with the offenses would not meet the requirement.” It is now suggested that the instructions on this subject were inadequate in the second trial. Among many points of charge presented on behalf of appellant, four relating to this subject were affirmed. At the conclusion of his charge the trial judge asked counsel whether anything had been “overlooked” and counsel for appellant replied that the court had “covered everything” save possibly a phase of character evidence, which was immediately supplied. The brief filed for appellant now suggests that the charge on the weight to be given the evidence of an accomplice was not as comprehensive as the statement just quoted from our former opinion; that the court erroneously referred to the manner in which the accomplice testified and failed to comment upon alleged contradictions in his testimony. It is sufficient now to say that with the general charge, supplemented by the affirmance of all the points for charge on the subject, and with the statement by appellant’s counsel that the court had “covered everything,” appellant cannot complain that the charge was inadequate in the respect suggested.

3. We find no reversible defect in the indictment. There was evidence that the Lyceum Theatre was fired, and that the fire spread from it to the dwelling of A. B. Fetherolf, 941 Hamilton Street, and damaged other dwellings belonging to parties named on Trexler Court; part of this evidence was contradicted, but there was enough to go to the jury. The indictment charged that appellant and “Roy W. Middlecamp......feloniously did set fire to, with intent to burn, the Lyceum Theatre building......by means whereof certain dwelling house of A. B. Fetherolf, located at 941 Hamilton Street, Allentown......was then and there burnt......” The second count similarly charged the burning of “certain dwelling houses of George Leh, John Leh and Sallie L. Koch, located at Nos. 954, 956 and 958 Trexler court ......” Several assignments of error complain that the indictment did not also aver that the Lyceum Theatre was not owned by appellant; that averment was unnecessary ; section 137 of the Act of March 31, 1860, P. L. 415 provides that one who burns or causes to be burned “any other building by means whereof a dwelling house shall be burnt” shall be guilty of felonious arson. Those assignments are overruled.

4. The remaining question for discussion appears in the 8th and 9th assignments; the former arises on a motion to discharge defendant, made when the Commonwealth rested; the latter on a motion to arrest the judgment. Both motions state that appellant was summoned to attend an investigation by the deputy state fire marshal into the cause of the fire, and (in the 8th assignment) that appellant “then and there testified and produced testimony in relation to the said fire” and (in the 9th assignment) that “the defendant, as appears by the testimony in the cause, having been summoned to attend......and having been required to submit to an examination in......” was immune from prosecution by section 6 of the Act of June 3, 1911, P. L. 658. The assignments of error neither quote nor refer to any part of the record showing that appellant testified or produced testimony or was required to submit to any examination as stated in the motions. We have examined the record and find no support for the conclusions so stated in the motions. The deputy state fire marshal testified that while investigating the cause of the fire he sent for appellant and asked him “how the fire occurred” and that appellant replied that “he didn’t know.” No hearing to take testimony was had; appellant was not sworn and examined; he did not testify or produce any books, papers or documents in the sense contemplated by the statute; it does not appear that “he was required to submit to an examination”; nor, if he produced anything, as the assignment states, does it appear what he produced, or the circumstances in which he produced it: Com. v. Braunfeldt, 72 Pa. Superior Ct. 25, 29. These assignments are overruled.

The judgment is affirmed and it is 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 the appeal in this case was made a supersedeas.

Trexler, J., did not participate in the decision of this case.