Commonwealth v. Cornelly

Opinion by Smith, J., The defendant, by separate indictments, was charged with burning an electric light plant and with attempting to burn an armory; and the issues were tried together. On the former indictment, the defendant was acquitted; on the latter he was convicted. The instruction respecting testimony as to the reputation for truth and veracity, which is assigned for error in the first specification, consists of a passage quoted verbatim from the opinion of the Supreme Court in Morss v. Palmer, 15 Pa. 51. The only merit of this specification is its novelty. The principles thus cited and applied to the case in hand, by the trial judge, have frequently been recognized by the supreme court, and are uniformly followed, in practice. I have never before known them to be questioned. To describe the instruction complained of as “ a perversion of the law,” is a marked perversion of professional zeal. [81] The second, third and fourth specifications complain of the charge on questions of fact raised by the evidence. We have read the testimony sent up with the record and we fail to see wherein these specifications present anything not warranted by the evidence. The learned trial judge expressed no positive opinion, or any view intended to be binding on the jury; on the contrary he expressly left it to the jury to consider and pass upon all the questions referred to in these specifications. No exception was taken to the admission of the testimony that the defendant had been convicted of larceny, and this testimony was referred to only as bearing on the defendant’s credibility. In Rohn v. Borland, 5 Cent. Rep. 562, a similar question was treated in the same mamier as here, and received the express approval of the Supreme Court. We perceive no error in that part of the charge quoted in the fourth specification. The fifth specification is in disregard of the rules of this court. The complaint thus inadequately aimed at is unwarranted. The charge was sufficient, and in the light of the evidence was fair to the defendant. We are not convinced that it was error to exclude the offer of evidence set out in the sixth specification. It was objected to on the ground that the salary of the witness had- previously been inquired about. An examination of the evidence shows this to be the fact, and that the witness stated that he was employed in this case by the Perkins Union Detective Agency, and was being paid for his work. It is not alleged that this testimony was untrue or that any other person was concerned in the employment; and we cannot see wherein the defendant was prejudiced by the refusal to have the subject canvassed anew. The last specification alleges error in the refusal of the court to allow the defendant to be re-examined and show by Ms own testimony that he had no malice or unfriendly feeling toward the owner of the armory. In support of this offer the appellant’s counsel cite authority for the proposition that evidence of motive is always admissible. It was unnecessary to cite authorities for so well established a proposition. That the existence of a motive for the commission of the crime may be shown, is not to be doubted, and the evidence thereof may be refuted by the defendant. The presence or absence of a motive maybe inferred from circumstances. But the offer here is indefinite as to time, even admitting that want of [82] motive is meant. It may relate to a period before or after tire time of the offense charged, and for this reason was properly rejected. Whether a defendant, when on trial, would be allowed to swear himself free from the malice which is implied from his acts, may well be doubted. • The caustic criticism of the learned trial judge in the argument, both oral and written, by the appellant’s counsel, is not justified by anything appearing in the record. The case was fairly tried, with due regard for the rights of the defendant as well as for those of the commonwealth, and no error calling for a reversal of the judgment has been shown. The judgment is affirmed.