Commonwealth v. Stein , 103 Pa. Super. 198 ( 1931 )

I must dissent from the majority opinion of the court. I think the court has erred in overruling the third assignment of error, in which complaint is made that the trial judge failed to charge the jury as to the nature, purpose and degree of persuasion necessary to establish the alibi offered by defendant. In this connection the learned trial judge charged as follows: "The defendant in her defense testified that she was not there, that she never saw the officers, that she never knew the officers; that she was not in Germantown on the occasions when the officers have testified that she was there and gave them this money." He reiterated this by saying: "Mrs. Stein, the defendant, has testified, as I have charged you, that she never saw these officers before; that she did not know them; that she had no contact with them as policemen or officials, law enforcement officials." And later the court said, "The defendant, as I have said, directly, specifically and positively denied the whole transaction. A maid employed by the defendant testified that the defendant was in bed, ill, upon the three evenings in question. The sister-in-law of the defendant has testified that the defendant was ill at home in the house, 6514 North 16th Street, on the occasion when the officers have testified positively that the defendant was in Germantown and gave them this money for the purpose as I have already stated to you."

It will thus be seen that the jury was fully instructed as to the nature of the defense and that the whole purpose of the testimony of defendant and her witnesses was to show that defendant "was not in Germantown on the occasions when the officers have testified she was there and gave them this money." In this respect defendant had no just complaint. In Commonwealth v. Durlin, 75 Pa. Super. 260, this court held a charge similar to the present one sufficient to explain to the jury the meaning of an alibi.

However, on the question as to the degree of persuasion necessary to establish the defense of alibi, the charge of the learned trial judge is silent. He instructed the jury correctly as to the burden of proof resting on the Commonwealth to establish defendant's guilt "beyond a well-founded, reasonable doubt" and that if such a doubt existed, defendant was entitled to the benefit of it, but not a word was said as to the duty of defendant to make out her affirmative defense by the "preponderance of the evidence" (Myers v. Com., 83 Pa. 131) or "to the satisfaction of the jury" (Rudy v. Com., 128 Pa. 500) or by any standard whatever.

I am certain this was error, and I cannot agree it was harmless. It may have caused the jury to believe that it was necessary for the defendant to convince them of the genuineness of her alibi beyond a reasonable doubt. So much was said of the burden of proof on the Commonwealth that the jury may have gotten the impression that the same burden concerning her defense rested on the defendant. There is no sound reason why the jury should have thought otherwise. Any doubt regarding the mind of the jury in this regard must be resolved in favor of the defendant.

It seems to me that the law is well settled that the trial court in viewing the testimony in support of an alibi as arrayed against that of the Commonwealth showing guilt, should instruct the jury as to its nature, its purpose, and the degree of persuasion necessary to establish it: Com. v. Barrish, 297 Pa. 160; Com. v. Westley, 300 Pa. 16. In Commonwealth v. Barrish, supra, Mr. Justice KEPHART said: "The law of our State requires specific instructions to be given relative to the burden of proof in an alibi, and the degree of persuasion necessary to support a conclusion that the accused was not at the place where the crime was committed....... To permit evidence of an alibi to be considered by the jury without some instruction as to its probative value or the degree of persuasion necessary before it attains any value, would introduce a false note in the case, as it would permit the jury to adopt their own idea of its worth; they would have no standard to determine its effect. All evidence should have some degree of probative force."

It is urged by the Commonwealth that counsel for defendant, at the conclusion of the court's charge, asked for no specific or further instructions. It was unnecessary that he do so. Defendant had a right, even though no request was made for the instruction, to have the jury fully advised as to the difference between the burden resting on the Commonwealth to establish guilt, and that resting on the defendant with respect to the alibi set up: Com. v. Andrews, 234 Pa. 597.

It may well be, as contended by the Commonwealth, that the whole effect of the charge was more favorable to defendant than that to which she was entitled, but as said in Commonwealth v. Andrews, supra, at page 604: "How are we to know that the jury did not reject the defendant's alibi because the evidence supporting it did not measure to the high degree which excluded all reasonable doubt? If they did, it was a most serious mistake into which they fell because they were not instructed to avoid it; if they did not, their avoidance of the mistake was not due to any warning they had received from the court.

I would sustain the third assignment of error, reverse the judgment and award a new trial.

LINN, J., concurs in this dissent.