Commonwealth v. Bober , 1915 Pa. Super. LEXIS 122 ( 1915 )

Opinion by

Rice, P. J.,

A strike of the garment workers of Philadelphia was in progress. The two appellants and some of their witnesses were among the strikers and were members of the same labor union. William Rice was a designer in the trade and was not a striker. On the morning in question, while on his way to work, he was set upon and brutally and maliciously beaten by four men acting in concert and was grievously wounded. These appellants and Benjamin Portner were arrested and jointly indicted and tried for the crime. Portner was acquitted. The other two defendants were found guilty and sentenced. They thereupon took these separate appeals which were argued together. It will aid in the understanding of the questions raised by the assignments of error, to state at the outset: First, there was ample testimony given by disinterested witnesses identifying these appellants as two of the four assailants; secondly, the defense did not consist in a denial of the assault or its aggravated nature, or in an assertion that it was provoked or was excusable or justifiable, but in a denial that these appellants participated in any way. The determination of the issue depended almost altogether on the credibility of the witnesses produced by the commonwealth and of the defendants and the witnesses produced by them. Notwithstanding the simple nature of the issue, twenty-four assignments of error have been presented for our consideration. As the case must go back for a new trial it seems necessary to discuss all of them.

An eyewitness testified in his direct examination to having seen and talked with a boy, with whom he had seen the four assailants talking immediately before the assault, near the place. On cross-examination he was asked this question: “He had nothing to do with this fight?” to which he answered, “No, sir. He was a picket or lookout. He did not commit the assault.” The question was so worded as to call for his knowledge of the boy’s connection with the fight, either as a principal or as an aider and abettor. If the boy was a picket or lookout, it could not be said that he had nothing to do with the fight. And, if the witnesses could not truthfully answer the question, as put, without including in his answer a statement of that fact, the counsel putting the question has no just cause, to complain that the witness added the necessary qualification or explanation. Moreover, the motion to strike out was not confined to that portion of the answer, but included the entire answer, and clearly the first and last sentence of it were beyond legitimate objection or even criticism. The court committed no error in overruling the motion and no reversible error in its statement of the reasons for doing so.

The second question as stated by appellant’s counsel is: Whether certain weapons should have been permitted to go out with the jury, there being no identification of them, and they not having been offered in evidence. When the four weapons, a brick wrapped in a stocking, a heavy piece of wood tipped with iron and two blackjacks, were produced on the witness stand by officer Goff, a witness for the commonwealth, objection was made to their introduction/ which the court overruled and noted an exception for the defendants. This ruling, considered in connection with the testimony given while the weapons were being exhibited to the jury, is fairly to be regarded as tantamount to formal admission of them in evidence at the instance of the commonwealth. Therefore, the above statement of the question is based, in part, on wrong premises. But the sufficiency and competency of the proof connecting them with the crime, as well as the propriety of the court’s charge to the jury on that subject, are distinctly brought in question by assignments of error, and will be considered. Rice, the person assaulted, testified that one of the four assailants said: “Use your jacks, boys”; that they used jacks upon him; and that he received four serious wounds. Another witness testified that she saw four men jump at Rice and hit him; that they were hitting so fast she could not tell what they were hitting with; and that two blackjacks were lying on the ground when he was lying there (bleeding profusely from the wounds), which she picked up. Officer Stevenson testified that four men attacked Rice and used blackjacks or other weapons on him. According to the testimony of officer Goff these four weapons — the one tipped with iron being covered with fresh blood — were handed to him by another officer when they arrested Bober and when Rice, prostrated by the murderous assault, was lying a few feet distant. If the witness Goff had picked up these weapons at that time and. place there could be no doubt of their admissibility in evidence. Their connection with the crime would have been for the jury: Com. v. Karamarkovic, 218 Pa. 405. And although he did not pick them.up with his own hands, yet when the circumstances of the assault, the nature of the blows and wounds inflicted, the fact that there was fresh blood on one of the weapons, the correspondence of the weapons with those which the witness described as having been used and the close proximity of the time and place of the assault to the time and place of the weapons coming into possession of the officer are considered, we cannot say that there was not sufficient evidence to warrant the court in admitting them and sending them out with the jury. But the court's determination of the preliminary question was not conclusive of the identity of the weapons and their use by the assailants. As pointed out in the case cited, their connection with the crime was for the jury. Sufficient reference to the evidence has been made to show that it was not so clear, explicit and overwhelming — certainly not as to some of the weapons — as to support the virtually binding direction which the court gave regarding all of them in these words: “The men who did the deed dropped the evidence, as they fled, upon the ground, and there it was found, four men, four murderous weapons and four wounds.”

The seventh and eighth assignments do not quote the answers of the witnesses to the questions, and therefore, so far. as they relate to the overruling of the objections they are not in accordance with our rule and are dismissed. The seventh assignment, so far as it relates to the remarks of the court, will be considered in another connection. It is not clear that the question put to the witness Karp (ninth assignment) was wholly irrelevant and improper cross-examination. The evident purpose was to ascertain how actively he had been engaged in the strike. At any rate, the error, if any, was rendered harmless by his subsequent statement, which was admitted without objection and was not contradicted, that he was duly tried and acquitted of the charge.

There are several assignments based on exceptions to the court’s refusal to withdraw a juror and continue the case, because of certain remarks made by the court in ruling upon questions of evidence, and because of the general nature of the charge. In support of these assignments counsel cites eases where the appellate courts have awarded new trials because of improper remarks of counsel. But the analogy is not perfect. Where exception is taken and allowed by the judge to his charge or to remarks made by him in the presence of the jury during the taking of evidence, the party supposing himself aggrieved has an ample remedy for correction of the supposed error. There is no occasion to resort to the circuitous method which must necessarily be resorted to in order to bring the remarks of counsel before the reviewing court; certainly there was no occasion for doing so in this case. The obvious objection to the course pursued is that it introduced into the trial regrettable asperities, and resulted in the unnecessary multiplication of exceptions and assignments of error. These assignments are dismissed.

The relevancy and propriety of the comment the court made during the argument of defendants’ counsel to the jury, depended upon what the counsel had said. There is no way of determining what he said except by referring to the bill of exceptions. The latitude which counsel may take in arguing to the jury does not wholly depend on the correctness of his reasoning. But there is a wide difference between asking the jury to draw an inference unfavorable to the commonwealth from the nonproduction of a certain eyewitness to the assault (see Ginder v. Bachman, 8 Pa. Superior Ct. 405, and cases there cited) and positively asserting that if he had been produced, he would have given certain testimony. The former might be legitimate argument, if grounds were laid for it in the evidence, while the latter would not be. It may be that the court misunderstood counsel, but for present purposes it must be assumed, as already said, that the bill of exceptions sets forth what counsel said. This being so, we cannot say that the court’s comment was irrelevant or improper.

The assignment of error to the court’s remark at the outset of the charge, “Bober, Schwartz and Portner are indicted before you for aggravated assault and battery and other crimes” is without merit. The indictment contained three counts. It is evident to us, and must have been to the jury, that the court’s reference to “other crimes” was to the crimes for which the defendants, to adopt the language of the court, “are indicted before you”; that is, in the indictment the jury had been sworn to try.

In charging upon the subject of reasonable doubt the court said: “The doctrine of reasonable doubt is the one which is usually relied on for clearing anybody, however obviously guilty. Why? Because it leads to confusion of thought and terms.” We fail to see anything wrong in the court’s making this general statement, for it is notoriously true that the doctrine is often pressed beyond its legitimate scope, to the miscarriage of justice, because it readily lends itself to confusion of thought and terms. It must be conceded, however, that if this had been all the court said upon the subject, it would have been inadequate, and for that reason misleading: Com. v. Andrews, 234 Pa. 597; Com. v. Duffy, 49 Pa. Superior Ct. 344. The very caution implied in the remarks necessarily called for further instructions in order that the defendants might have the full legal benefit of the just and time-honored doctrine. And we cannot say that the objection of inadequacy was removed by the court’s subsequent statement: “Reasonable doubt means if you examine all the circumstances of the case,' and weigh all the evidence, and are then satisfied that that man did it and that that man helped him, then you have no reasonable doubt.” However it may be in other jurisdictions, a distinction is made in this commonwealth between “satisfactory proof” and “proof beyond a reasonable doubt.” The former is the measure of proof required to establish an alibi, and some other affirmative defenses, while the latter is the measure required for conviction. As pointed out in Meyers v. Com., 83 Pa. 131, “It is difficult to define the precise difference between the two measures, yet we are conscious in our minds that to be convinced beyond a reasonable doubt is a severer test of belief than to be satisfied that the preponderance falls on that side.” Manifestly, therefore, instructing the jury in terms which might lead them to the belief that “satisfactory proof” and “proof beyond a reasonable doubt” are synonymous terms does not meet the full requirement of the law.

The remaining assignments of error will be considered as a connected whole, as they relate to the defense of alibi and to the consideration to be observed by the jury in weighing the testimony of the defendants’ witnesses. Before doing so, however, we remark that the manner in which the court spoke of the witnesses (in the nineteenth and twenty-first assignments) was calculated to detract somewhat from the weight which the jury might have otherwise given to their testimony. After having told the jury that the defense is “the most discredited one in the whole history of the criminal law,” it was at least fair to the defendants to say that some of the witnesses were not shown to have been strikers.

Coming then to the general subject above indicated, in the course of his charge to the jury the learned judge said: “The peculiarity of the case is that there is not a word of evidence that the men who assaulted Rice had any personal feeling against him, or had any enmity against him, or had any cause of personal quarrel. The cause of personal quarrel they had was not so much with Rice as with the State of Pennsylvania. The commonwealth of Pennsylvania, following out a long, deliberate, statesmanlike policy, has declared that strikes for the betterment of the conditions of laborers are lawful, that men who are employed in a factory or in several factories may meet together and agree that they will not work unless they get certain improvements in terms, and that coming together is no longer as it was under the common law, a conspiracy. It is a harmless and lawful thing to do. Men have a right to strike, and have a right to refuse to work, but they have only a right to one kind of a strike. They cannot strike an individual with those pieces of murderous iron. That they cannot do lawfully.” This statement of the right of a workman to refuse to join his fellow workmen in a strike, and to be protected in the exercise of that right was as correct in law, and as pertinent and timely as it was vigorous and plain. While the motive that actuated the assailants was for the jury to determine, yet in view of the undisputed facts, to which we have referred, and the entire absence of evidence of other motive, the trial judge did not exceed his province in expressing his opinion upon that subject, as he did in the instructions above quoted. But the remaining instructions contained in the thirteenth assignment, taken in connection with those quoted in the fourteenth, fifteenth, sixteenth, eighteenth, nineteenth and twenty-first assignments, go much farther than a mere expression of opinion, based on admitted or undisputed facts. Thus the learned judge said: “They had nothing against Rice, except that he refused to obey the order of the union that he should not work. It was not any original personal impulse, but it was the impulse of an organization which set itself up and declared a law superior to the commonwealth of Pennsylvania?” Again, “If men can be found to violate a law in the interest of an organization that holds itself in any of its parts (I do not care whether it is a secret committee of one, two or three, to arrange for these cases) it is just as easy for that organization to arrange alibis and perjuries as to arrange assaults.” Further on he said: "Somebody was arranging to attack Rice. Somebody was arranging to carry these things, and who would they be but the people in interest, and here are all these people in interest, the alibi people and all, including the host Berman. . . . You do not suppose that any four people who had no interest would risk the possession even and the use on the highway of those murderous weapons, if they had nothing against the man, and I have no doubt that those two people had nothing against the man except that he violated a law which they held to be superior to the law of Pennsylvania, that guarantees him the right to work if he wants to, and guarantees him the right to be immune against their physical violence.” Again we quote: "The alibi is sworn to only by their own crowd, everything is made convenient.” The thought that the assailants were carrying out the purpose of the larger organization was very plainly intimated during the trial. Karp, a witness for the defendants, was asked on cross-examination, as to his participation in other strikes. In overruling the objection the court said: “If they organized a force, and of course it is idle to contend that there was not an organized force here to assault this man, these people profess to know all about the force. Let them tell all they know.” The same idea was intimated in an indirect but very damaging way by the questions which the court put to the same witness: "What was the committee on, murder or assault and battery?” and "Who was the committee on that kind of thing, those blackjacks and things?” The remarks and the instructions to which we have referred, whether taken separately or with the context, were well calculated to impress on the minds of the jurors, the idea or theory that the four assailants were members of a larger organization, which, setting itself above the law, had decreed that the prosecutor and other workmen in that branch of industry, should not be permitted to work while the strike was pending, and that in making the assault they were acting in the interest of and under the impulsion of that organization. If it was proved that the larger organization referred to, whether the labor union or the body of strikers, had for its rules, principles, regulations or laws, the prevention of its members and others from working by intimidation and violence, it was made much easier for the jurors to believe the testimony of the commonwealth’s witnesses that these defendants, who admittedly were members of the union and were strikers, were the assailants, and to discredit the alibi testimony of their fellow strikers and members of the union. See Hester v. Com., 85 Pa. 139. The pertinency of this line of reasoning to the alibi defense was clearly brought out in the charge; the argument could not have been presented more forcibly. But upon a very careful and painstaking examination of the testimony, we are constrained to the conclusion that it is based on a fact not proved. There was a strike, and it may be inferred that it was ordered by the labor union and that the defendants struck because of such order. But a strike of the members of a labor union does not necessarily imply an agreement among the strikers to prevent others from working by intimidation and violence, and the evidence wholly fails to show that there was such agreement or that this unlawful mode of making the strike effective was in accord with the general rules, principles or laws of the organization. As already intimated, there was ample evidence to sustain the inference that Rice was' assaulted because he persisted in working, — because he was a "scab” as one of the assailants opprobiously called him — but that is a very different thing from saying that the assailants were acting in the interest of and under the impulsion of a larger organization and were carrying out its purposes or policy. True, this would make no difference in the criminality of the acts proved, but it might make a vast difference in the jury’s determination as to the credibility of the alibi witnesses. Strong and convincing as the testimony of the commonwealth’s witnesses seemed to the trial judge, and seems to us, brutal and malicious as was the assault, and much as it is to be desired in the interest of law and order and for the vindication of the right of non-strikers to pursue their avocation without molestation, that the perpetrators should be punished, yet the defendants were entitled to a trial in which the credibility of their witnesses, and of themselves, should be decided by the jury, uninfluenced by other considerations than those that affirmatively appeared in the evidence, or legitimately flowed from the facts proved. We are of opinion that in the court’s presentation to the jury of the theory to which we have referred, too much was taken for granted without proof, and that this resulted in prejudicial error.

The foregoing will sufficiently indicate our decision of the questions raised by the assignments of error and the grounds upon which we base our conclusion that the defendants are entitled to a retrial.

The judgment as to each of the appellants is reversed and venire facias de novo is awarded.