Commonwealth v. Ellis ( 1943 )

KENWORTHEY, J., filed a dissenting opinion, in which RENO, J., joined.

Argued November 16, 1943. The defendant, Robert A. Ellis, was convicted under an indictment charging burglary. No motion was made for a new trial but after sentence was imposed the defendant appealed. The indictment was drawn under the Act of 1939, June 24, P.L. 872, § 901, 18 Pa.C.S.A. § 4901, which provides: "Whoever, at any time, wilfully and maliciously, enters any building, with intent to commit any felony therein, is guilty of burglary, a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both."

Mrs. Bessie Charland, who resides on Hawes Street in North Towanda, testified that about 1:30 A.M. on August 10, 1943, she was alone in her bedroom, which is on the first floor of her home, when she saw Robert Ellis, whom she knew and had talked to several times on previous occasions, break her bedroom window with his fist. She asked him what he wanted and told him to go away or she would have him arrested. He said that he wasn't afraid and when she inquired why he was there he replied: "What do you care?" She then went over to Mr. Calkin's home, which is but three feet distant from her house, and the defendant followed her over as far as the porch. He went back to Mrs. Charland's house and she saw him enter her front door, which leads to a dining room where there was a light burning. Police officers were called from the Calkin's but when they arrived the defendant had left. He was arrested the following afternoon.

Mrs. Charland was positive that she recognized Ellis, who wore a soldier's uniform. Ellis testified he did not remember what clothes he had on that night. Frank Krause, who was in company with Ellis that evening in several drinking places, and Anna Weiss, the proprietress of Maple Leaf Inn, one of the taprooms they visited, both corroborated Mrs. Charland's statement respecting the uniform.

Ellis attempted to set up an alibi as a defense. He testified that he was not in the neighborhood of Mrs. Charland's house on the evening in question. Krause, his companion, called by the commonwealth, testified that after they left the "Maple Leaf" about 11:30 P.M. in his car and went through Towanda to North Towanda, the defendant got out of the car north of the "Highway Building", which is in the immediate locality of Mrs. Charland's house, and he, Krause, then drove away and did not see Ellis thereafter.

While it is true that there was no direct evidence of the defendant's intent, that was not necessary. Intent can be inferred from actions as well as words. The jury was entirely justified in concluding that the defendant was in the Charland house and that his suspicious conduct at that early hour in the morning when Mrs. Charland was alone in her home, showed that he intended to commit a felony. The facts in the case ofCommonwealth v. Hartland, 147 Pa. Super. 263, 24 A.2d 160, principally relied upon by the appellant, are quite different from those before us. All the defendant's acts there were done in broad daylight in plain view of three other witnesses whom the defendant knew were watching him. The evidence showed clearly a lack of any intent to commit a crime.

The second assignment of error relates to the court's charge on the question of "reasonable doubt," which was in the following language: "A reasonable doubt is defined by our Supreme Court as follows: `If, in an endeavor to determine from the evidence any point essential to the Commonwealth's case, the juror hesitates as between two conclusions and finds himself thinking, as to one of them, "Such is, or may be, the fact," and then is mentally reluctant to so conclude, and, after considering the evidence from all angles, such hesitancy still persists, that is what the law terms a reasonable doubt, and the defendant is entitled to the benefit of it.'" We find nothing objectionable in that instruction. When the jury was instructed that they must "determine from the evidence any point essential to the Commonwealth's case" their consideration was not confined to the commonwealth's evidence. Due regard was to be given to all of the evidence. Moreover, the instructions were in the exact language approved by the Supreme Court in Commonwealth v. Green, 292 Pa. 579,590, 141 A. 624.

The next assignment of error is directed to the court's charge respecting the defense of an alibi. The court's instructions on that question were as follows: "Members of the Jury, the defendant sets up here what is known in law as an alibi, that is that the defendant was not at the place where the crime was committed and therefore could not be guilty. In setting up an alibi as a defense the burden is on the defendant to establish that alibi by the weight or preponderance of evidence. He is not required to establish it beyond a reasonable doubt, but simply by the weight or preponderance of the evidence, and if so established it is a complete defense and your verdict would be not guilty."

This was a specific instruction as to the quantum of proof required for a defendant to establish an alibi. Attention was called to the fact that he was not required to convince the jury beyond a reasonable doubt but only by the weight and preponderance of the evidence, thus carefully differentiating between the burden resting upon the commonwealth to establish guilt and that resting upon the defendant to set up an alibi. Mr. Justice STERN said in Commonwealth v. Jordan, 328 Pa. 439, 446,196 A. 10: "The law is firmly established that the measure of proof required for the defense of alibi is merely a preponderance of the evidence, or, as it is sometimes stated, proof `to the satisfaction of the jury.'" That is exactly the degree of persuasion the trial judge in this case instructed the jury was required. This case is readily distinguishable from Commonwealthv. Andrews, 234 Pa. 597, 83 A. 412, and the other cases cited by the appellant.

A careful review of this evidence convinces us that there was no reason, and fails to disclose any error, that warrants our interference with the finding of the jury and the sentence thereafter imposed.

The judgment is affirmed, and it is ordered that the appellant appear in the court below at such time as he may there be 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.