Commonwealth v. Puretta , 74 Pa. Super. 463 ( 1920 )

Opinion by

Head, J.,

The defendants were indicted for and convicted of an attempt to commit arson. The defense advanced embraced two separate branches, to wit: 1. The evidencé as a whole discloses nothing more at the most than a naked isolated intent to burn and was not sufficient to support a conviction of an attempt to burn. 2. The evidence as a whole was insufficient to support the conclusion that the defendants or either of them could be identified as the guilty party or parties.

1. The opinion filed by the learned court below, which will be printed with the record of the case, points out, in a manner satisfactory to us, the reasons why the evidence in this record fully measures up to recognized standards as to its sufficiency to support the conclusion that the intent which was so manifest had ripened into an actual attempt to burn the property. The authorities are collated and carefully reviewed and leave nothing of value for this court to add on that phase of the case.

2. The same opinion fully and carefully reviews the evidence on the part of the Commonwealth and summarizes its salient points as briefly as we could hope to do'. In addition to the facts stated in that opinion it is of interest to observe that the testimony of one of the witnesses produced by the defendant, who went down into the cellar, just as the store was being closed for the night, excludes the possible hypothesis that a stranger might have slipped into the cellar before the closing of the store and concealed himself there until a favorable time had arrived to begin the elaborate preparations that were made to bring about the object intended. It is worthy of note also that the defendants themselves declined to take the witness stand, as they had a perfect right to do, and to offer to the jury any suggestion or explanation that might have helped them to a conclusion that some third person had done the work which could have been so easily done by the defendants but which would have been attended with almost insurmountable difficulties if done by a stranger. The counsel of course were prohibited from commenting on this fact adversely to the jury but it cannot be supposed that tribunal remained oblivious of the fact of their silence any more than that this court should pass it by when considering the application of the defendants to be discharged without day, notwithstanding the verdict of the jury.

Human judgments of course are not infallible, but if human experience and human reason may still be relied on to guide us to conclusions based upon evidence, we must find ourselves, as the learned judge below found himself, unable to say that the evidence left nothing for consideration by the jury and that the defendants were entitled, under the law, to an order discharging them without day.

We have carefully studied the entire record including all of the evidence and we have reached the conclusion that the case was tried in a manner as favorable to the defendants as they had any right to expect and that questions of evidence were ruled upon almost uniformly to their advantage when the Commonwealth might have reasonably argued that their objections should hare been overruled.

The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in that court 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.