James M. Keller, Pittsburgh, for appellant.
Sherman K. Levine District Atty., Leroy K. Donaldson, Asst. District Atty., New Castle, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ.
[ 166 Pa. Super. Page 578]
This is an appeal from the judgment of sentence imposed upon the defendant, following his conviction of assault and battery with intent to commit rape. He seeks a new trial notwithstanding, under the evidence, the jury well might have convicted him of common law rape charged in the first count of the indictment.
[ 166 Pa. Super. Page 579]
Hope Ann Savicky lived with her husband on Jamison Avenue in the Borough of Ellport. On her way home alone in her automobile about four o'clock in the morning of April 30, 1949, she noted that a man in an automobile was following her. There was but one headlight on his car. When she drove into the driveway of her home he followed her and when she was about to alight he placed a hand over her mouth and with threats to kill her dragged her into his car. He then drove to a lonely church yard and there raped her, according to her testimony. In the struggle, while being forced from one car to the other she bit the middle finger of the left hand of her assailant causing it to bleed. He then in anger put his hand to her face and tore the tissues of the inside of her mouth with his fingers. Blood flowed from this laceration also. She had ample opportunity to observe her assailant and she later unhesitatingly identified him from a group of several hundred workmen as they were entering the plant of the Babcock & Wilcox Company in Beaver Falls, on a change of shifts. Her description of the automobile, including the defective headlight, also identified the car of the defendant. Defendant on the trial admitted that he had driven from New Brighton to Ellport on the night in question but contends he was home in bed before 3 a.m. The wound on the middle finger of his left hand he attributed to a cut incurred while repairing an automobile. The testimony by which he attempted to set up an alibi was not impressive and the jury did not accept it.
The defendant here for the first time charges error in the instruction on reasonable doubt. He complains especially of the language of the trial judge in charging on reasonable doubt as '* * * that state of doubt * * * as would cause you to hesitate and refrain from action in your own affairs * * *' without referring such doubts to affairs of importance or of the highest importance. In commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398, 403, Mr.
[ 166 Pa. Super. Page 580]
Justice Stern, commenting on the language of prior decisions of our courts on reasonable doubt, said: 'It may be doubted if the ordinary juror would appreciate the significance of these distinctions, and whether he would have the capacity to understand and the mental ingenuity to apply them. As a standard and approved form of charge, however, we are of the opinion that the jury should be told either, as in the Andrews Case,*fn1 that they should not condemn unless so convinced by the evidence that they would venture to act upon that conviction in matters of the highest importance to their own interests, or, as in the Green*fn2 and Jermyn*fn3 Cases, that a reasonable doubt was one that would cause them to hesitate to act in any of the important affairs of their own lives.'
There was a reversal in the Kluska case but it may be noted that though the instruction there did not meet the suggested standard, the reversal was not on that ground. Here the clear and instructive charge on reasonable ...