Commonwealth v. Swartz , 1916 Pa. Super. LEXIS 35 ( 1916 )

Opinion by

Trexler, J.,

The defendant was charged under the Act of May 19, 1913, P. L. 222, with sending a threatening letter. There are .many assignments of error but they may be considered under the same divisions as are contained in appellant’s argument.

First. At the trial a witness was called, who after qualifying as an expert under the Act of May 15, 1895, P. L. 69, was permitted to testify as to certain resemblances between writings shown to have been made by the defendant and the unsigned letter which contained threats and formed the basis of the charge. This witness stated the principles upon which he based his work and the reasoning by which he arrived at his opinion. He testified that he was certain that defendant was the writer of the threatening letter but declined to positively aver that he was. He said that no one could be positive unless he was present and actually saw the person do it. The points of resemblance between the writing were not many. The threatening letter was printed with a pen. The proven writings were in script. The defendant earnestly contends that the testimony of the expert was so weak that it had no probative value and that the court was wrong in allowing the papers used for the purpose of comparison and the threatening letter to be submitted to the jury. We cannot lay down any fixed standard as to how many points of resemblance an expert must show in writing submitted to him before his testimony may be considered and the papers allowed to go to the jury. After he has properly qualified and has made the comparisons it is for the jury to judge as to the authorship of the disputed writing. Under the Act of 1895 final determination of the matter is for them. The letter containing the threats was printed with a pen but nevertheless comes under the designation of “writing.” Printing with the pen and script are but different- forms of writing and these two forms of chirography alleged to have been employed by the same person on different occasions may afford a basis of comparison that may lead to the conclusion of common authorship.

Second. The court in its charge referred to so-called “black hand” methods employed by certain persons, especially in larger cities, to extort money by threatening letters. The allusion was unnecessary but did not consti- • tute error. The threatening letter in question contained a drawing of a black hand and the remarks of the court were merely in explanation of the significance of the drawing. What the court said did not harm the defendant. It was only telling the jury what was no doubt known to most of them that one of the symbols employed in certain forms of extortion was a black hand. It certainly had no bearing on the guilt or innocence of the defendant.

Third. The district attorney in his speech to the jury made some allusion to another case which had been tried some years before in the same county. The defendant’s counsel moved to withdraw a juror. This the court declined to do. Whether properly or not we cannot determine. We have in the paper book a reference to the subject of the remarks, but what words were employed does not appear on the record. Counsel when he made the motion should have taken means to have the remarks made part of the record: Com. v. Shoemaker, 240 Pa. 255.

Fourth. The defendant asked the trial judge to grant a new trial alleging that he had discovered new evidence which if produced on the retrial would change the result. The judge in refusing the motion stated that there was no allegation that the evidence had not been Available at the time of the trial and that it was too late to take advantage of this under the circumstancés. This matter was within the sound discretion of the trial judge.

The fifth assignment is that the charge of the court was unfair to the defendant. We have carefully read the charge and have come to the conclusion that there is no merit in this contention.

Sixth. The complaint as to the severity of the sentence is without merit. The sentence imposed was within the terms of the act under which the defendant was found guilty.

The judgment is affirmed and it is ordered that the defendant appellant appear in the court below at such time as he may be called and that he be by that court-committed until he has complied with the sentence or any part of it that had not been performed at the time this appeal became a supersedeas.