Lemuel B. Schofield, Philadelphia, Marshall M. Cohen, Lancaster, for appellant.
John Milton Ranck, Dist. Atty., John W. Beyer, First Asst. Dist. Atty., Lancaster, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 146]
Milton M. Hess has appealed from judgment and sentence following his conviction on an indictment charging open lewdness. His sole complaint is that the court below erred in refusing to withdraw a juror because of an alleged improper question asked by an assistant district attorney on cross-examination of a witness for appellant.
At the end of the Commonwealth's case in chief, the defense called Paul Hess, a son of the defendant, as an alibi witness. On cross-examination, the following testimony appears:
'Q. Didn't you offer to have your father examined if these charges were dropped? A. No, not under that condition. This is what I told them if that is what you are driving at. I told them, 'If my father did, and he could have done it, if it was possible he would have done anything like that', I said, 'Then the man should have his head examined. Something is the matter with him'.
'Q. Didn't you say, 'if you drop these charges, I will see that he gets examined'? A. No.
'Q. What do you mean, if it is possible that he had done it? A. Well, at the time it happened, I didn't
[ 170 Pa. Super. Page 147]
know the times or nothing.
'Q. Did you think it was possible he might have done it? A. Well, how was I to know? Anything can happen these days, but as long as I knew my Dad, ...