DocketNumber: Appeal, 204
Judges: Frazer, Kephart, Maxey, Schaeeer, Simpson, Walling
Filed Date: 3/23/1931
Status: Precedential
Modified Date: 10/19/2024
This appeal is by the defendant, Danny Day Del Giorno, herein called "the defendant," from death sentence imposed upon conviction of murder of the first degree, the verdict fixing that penalty. While the record discloses some interesting questions, there is nothing calling for a reversal. The defendant was tried separately, although indicted jointly with Frank Del Vaccio and Anthony Piccarilli, for the murder of Samuel Jacobs. The deceased's father, Aman Jacobs, had his store and residence at 1171 South Tenth Street, Philadelphia, where the deceased with his wife and two children also resided. On the late afternoon of July 13, 1929, the three defendants stopped the automobile, in which they came, in front of this store and, according to the testimony of the Commonwealth, as the deceased came from a near-by drug store, fired numerous shots at him by which he was killed and a customer at the store three times wounded; that after the shooting the defendants left the automobile and fled. Del Vaccio was first tried and a more detailed statement of the facts appears in Com. v. Del Vaccio,
The defendants had come to see the deceased twice earlier that afternoon, and, according to the testimony of his mother, one of them, whose voice she recognized, had called for him on the telephone demanding money and had threatened him with personal harm if he refused. As she was acquainted with the one who used the telephone she was competent to identify his voice. See Dunham v. McMichael,
Mr. and Mrs. Seemon, near neighbors, had come forward, after Del Vaccio was convicted, with the claim that they saw the shooting and that the deceased was the aggressor, although they had told the officers they knew nothing of it. This made ill feeling, which appeared in the testimony of the deceased's mother, in her cross-examination, as follows: "Q. Did Mrs. Seemon pick him [the deceased] up? A. Mrs. Seemon? Q. Yes. A. Mrs. Seemon, she was inside the house. Q. How do you know? A. Because when my daughter went in to call her, she was inside, and her husband. And that is all faking business, too. Q. What is? A. People come in to tell me I will be satisfied if I keep away, not to squeal on the fellow and leave him go, and they offer me fifteen hundred dollars or two thousand dollars." This the trial judge declined to strike out because he said it was in response to the questions asked. As the matter then stood it was impossible to say whether the answer was relevant. Unless the party who, the witness claimed, tried to bribe her was connected with the defense, it was irrelevant, and another question might have developed that fact. In the absence thereof, as the answer was in response to a question in cross-examination, we cannot say the court erred in refusing to strike *Page 515 it out. In any event, it was not a matter of great importance. The belated manner in which Mr. and Mrs. Seemon came forward as witnesses for the defense, after denying all knowledge of the affair, called for a careful scrutiny of their testimony.
After the shooting, one of the other defendants was taken to the Howard Hospital, and the rejection of the hospital record, offered as tending to show he had a wound on his neck, is assigned as error. Such records are sometimes received in evidence (see 3 Wigmore on Evidence, 2d edition, section 1707), but are not generally competent: Harkness v. Swissvale Boro.,
Complaint is made that the trial judge participated too freely and to the prejudice of the defendant in the cross-examination of certain of his witnesses. So far as no objection was made thereto at the time or exception taken, it is not the subject of review. As has been often said (see Com. v. Green,
John Daher, a witness for the defense, told a highly improbable story about his being in front of the store earlier that afternoon when, at the request of the deceased, he permitted a stranger to put what turned out to be a loaded revolver in his [Daher's] cap, which he held in his hand while he stood there in the street for over an hour, until one of the defendants, grabbing it from him, used it in defense against the assault of the deceased. The witness soon left Philadelphia for seven or eight months and on his return told his story to the attorneys for the defense. It was so remarkable that the trial judge asked him why he did not tell it to the police officers and why he gave the information to the defense and not the Commonwealth, then asked: "Q. Why didn't you tell Justice what you knew? A. I am telling it now. Q. You are not telling it now at the behest of Justice — you are called by the other side"; and then asked, "Q. Why didn't you tell it to the police? A. I don't know." Taking the entire colloquy, it is apparent that what the judge had in mind and what would naturally be inferred therefrom by the word justice was the officers of justice; otherwise it was meaningless. Even assuming that the judge expressed an opinion that the Commonwealth's contention was right, while perhaps bad form, it was not reversible error inasmuch as he left the entire case to the jury. See Com. v. Del Vaccio, supra; Com. v. Ronello,
It was right for the judge, in defining murder, to instruct the jury that, "In this case we have to deal only with that kind of murder in the first degree described as 'wilful, deliberate and premeditated.' " That accords with the authorities. See Com. v. Bednorciki,
On the question of reasonable doubt he instructed the jury, inter alia: "In deciding upon a case, or upon any material part of it, it is the duty of the jury to give the prisoner the benefit of any reasonable doubt which arises from the evidence, and which prevents the jury from reaching a satisfactory conclusion. . . . . . . If you have an honest, reasonable doubt, such as I have defined to you, as to guilt, the prisoner would be entitled to the benefit of that doubt and to an acquittal. This applies not only generally to the question of guilt or innocence, but to every grade or degree of guilt that the jury must pass upon, and to every material and important question *Page 518
that may arise and be necessary in order to reach a conclusion against the defendant." After that, to have answered the defendant's requests on that subject would have been mere repetition and no more essential than to answer duplicate requests. Such repetition might tend to confuse. "Over-elaboration of the definition of reasonable doubt often leads to refinements which tend to confuse rather than help the jury to a correct understanding of the doctrine": Com. v. Green,
The criticism leveled at the charge as a whole is entirely without merit. It embraced every aspect of the case with judicial fairness, and careful reference both to the law and the facts. See Com. v. Weber,
The defendant left Philadelphia almost immediately after the shooting and was arrested in Los Angeles, California, fourteen months later. Meantime, he had been in Boston, St. Louis, New Orleans and other cities. This, as the trial judge stated to the jury, was evidence to be considered together with the other evidence in the case, as bearing upon the question of the defendant's guilt. This accords with the approved rule, as stated in Com. v. Boschino,
Complaint is made of remarks by the assistant district attorney in his address to the jury. While he used some expressions not the most appropriate, nothing is called to our attention that requires another trial. There were circumstances tending to show this was a gang murder, hence the district attorney might not improperly so characterize it. His remark to the effect that the police were unable to cope with the situation in South Philadelphia, so far as we can judge, did the defendant *Page 519
no particular harm. The same might be said about other localities. Equally objectionable remarks by district attorneys in other cases have not been held sufficient to require reversal. See Com. v. Flori,
The case as presented by the Commonwealth contained every element of first degree murder and the credibility of the witnesses was for the jury. The assignments of error are all overruled, the judgment is affirmed and the record is ordered remitted for the purpose of execution.
Commonwealth v. Green ( 1928 )
Commonwealth v. Green ( 1928 )
Commonwealth v. Del Vaccio ( 1930 )
Commonwealth v. Flori ( 1930 )
Commonwealth v. McKeehan ( 1928 )
Harkness v. Swissvale Borough ( 1913 )
Commonwealth v. Smith ( 1921 )
Commonwealth v. Exler ( 1915 )
Commonwealth v. Boschino ( 1896 )
Commonwealth v. Berney ( 1905 )
Commonwealth v. Striepeke ( 1906 )
McClain v. Commonwealth ( 1885 )
Commonwealth v. Ronello ( 1916 )
Com. v. Gilida, Alias Gallagher ( 1932 )
Paxos v. Jarka Corporation ( 1934 )
Commonwealth v. Sullivan ( 1970 )
Evans v. Penn Mutual Life Insurance ( 1936 )
Commonwealth v. Massarelli ( 1931 )
Commonwealth v. Homeyer ( 1953 )
Commonwealth v. Stoltzfus ( 1975 )
Commonwealth v. DeMarco ( 1980 )
Commonwealth v. Thomas ( 1980 )
Commonwealth v. Bullock ( 1989 )
Commonwealth v. Mikesell ( 1977 )
Commonwealth v. Fusci ( 1943 )
Commonwealth v. Shultz ( 1933 )
Commonwealth v. Carpenter ( 1977 )
Commonwealth v. Sanchez ( 1992 )
Commonwealth v. Olitsky ( 1957 )
Commonwealth v. Maloney ( 1950 )