J. H. Brennan, Brennan, & Brennan, Pittsburgh, for appellant.
William Coghlan, District Attorney, Midland, Clyde Holt, Jr., Beaver, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 163]
This case and the case of Commonwealth v. Romito, 166 Pa. Super. 158, 70 A.2d 444, at No. 107 April Term, 1949, wherein Arthur Ventura was the appellant, were argued together. One of the errors here complained of is that the court erred in its charge as to the testimony of an accomplice. Counsel refer to their brief at No. 107 April Term, 1949, in support of their position. The court said, in part:
'Defense counsel has referred to the fact that this co-defendant John Romito is an accomplice. By his own admission he is an accomplice. He says that he, along with Wells and Ventura, the defendant, are the three men who burglarized the Keystone Bakery on the early morning of June 2nd, 1946; so that he is -- and we say to you as a matter of law, and within the meaning of the law, he is an accomplice. An accomplice is one who has any criminal connection with the matter on trial, although he is not a co-defendant. Now when you come to measure the credibility of this John Romito, the principal witness for the Commonwealth, you will bear in mind that where the case rests upon the testimony of an accomplice, it is always best for the jury to receive the testimony of the accomplice with caution. If you believe the testimony of the accomplice, if you are satisfied of the absolute truthfulness of the testimony of the accomplice, you may convict upon that testimony without any other. However, it is usually best to have the testimony of the accomplice corroborated in material facts, or some material parts that indicate its truthfulness; because * * * such testimony comes from a corrupted source. It is not essential that the entire testimony of the accomplice
[ 166 Pa. Super. Page 164]
be corroborated; but if it be corroborated in material facts to such an extent as to satisfy you of part of its truthfulness, then you can convict; or, you can convict if it is not corroborated if you believe the testimony to be the absolute truth. However, I say that the usual rule is to receive an accomplice's testimony with caution. There is no common law which forbids conviction upon the uncorroborated testimony of an accomplice if his evidence satisfies the jury of the guilt of the accused beyond a reasonable doubt. A jury may believe an uncorroborated accomplice; and if his testimony produces in your minds a conviction of the defendant's guilt beyond a reasonable doubt, you may convict. If the testimony of the accomplice, his manner of testifying, his appearance upon the witness-stand, impress the Jury with the truth of his statements, there is no inflexible rule of law which prevents conviction.
'It is a matter of general knowledge that partners in crime will lie when apprehended, to cast the chief blame on each other. In this case there is no such attempt made by Romito. He says, 'I take my blame for my share in that crime'. It is also equally well known that partners in crime sometimes do tell the truth as to the commission of a crime. The administration of justice in criminal cases would be seriously handicapped if there were any rule that the testimony of an accomplice could not be received, or that it alone would not be sufficient to justify a conviction. * * * if we didn't have the rule of law as we have just given it to you, * * * it would be impossible many times to get a conviction for the reason that in many cases you have only the testimony of an accomplice to go to the jury.'
We find no error in the charge in this respect. See opinion filed this day in Commonwealth of Pennsylvania v. Romito, 166 Pa. Super. 158, 70 A.2d 444.
[ 166 Pa. Super. Page 165]
But we find prejudicial and therefore reversible error in another part of ...