Louis C. Glasso, Pittsburgh, for appellant.
James F. Malone, Jr., Dist. Atty., Albert A. Fiok, Samuel Strauss, Asst. Dist. Attys., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold, and Gunther, JJ.
[ 171 Pa. Super. Page 469]
Michael Gable, appellant, and Dominic Narr were indicted and charged with burglary and receiving stolen goods. Narr entered a plea of guilty and testified for the Commonwealth. Gable was tried, convicted by a jury and now appeals from the dismissal of his motion for a new trial.
Defendants were charged with stealing a safe from the home of Gus Paris at 1219 Sandusky Street, Pittsburgh, on April 8, 1950, at or about 8 o'clock p.m. Narr testified that he and Gable forced the front door of the Paris home, carried the safe through the rear kitchen door, loaded it in the trunk compartment of Gable's automobile and took the safe and deposited in near the railroad tracks of the Baltimore & Ohio Railroad at the Etna ballfield. Police apprehended Gable and Narr in the act of attempting to open the safe at
[ 171 Pa. Super. Page 470]
this place and arrested them while leaning over this unopened but battered safe. Police found a complete set of burglar tools including two sledge-hammers, two drift pins, gloves, two flash lights, crow bar, long screw driver and pinch hammer. Both Gable and Narr were searched at the scene and had on their persons fully loaded 38 caliber revolvers.
Appellant's first complaint is that the court below erred in refusing to permit defense counsel on cross-examination of the witness Narr to interrogate him concerning unrelated and independent offenses for which Narr had been indicted but not tried. We find no merit in this contention for reasons hereafter stated.
In Commonwealth v. Mulroy, 154 Pa. Super. 410, 416, 36 A.2d 337, Keller, P. J., said; 'Of course, if the witness is under indictment for the same crime, or for a crime growing out of, or closely related to, the very offense for which the defendant is being tried, so as to form a part of the same occurrence or transaction, it is proper for the jury to know it, as bearing on the witness's interest in the immediate matter: Com. v. Alensky, 118 Pa. Super. 106, 109, 179 A. 768. 'When the co-indictee testifies for the accused, his situation here also may be considered as tempting him to exonerate the other accused and thus help towards his own freedom': 3 Wigmore on Evidence, 3d Ed., § 967. So, too, if the witness, thus under indictment, testifies for the Commonwealth, it may be that his testimony was biased because given under promise or expectation of immunity or leniency from the officers conducting the prosecution being tried. Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624; 3 Wigmore on Evidence, 3d Ed., § 949; and the jury are entitled to know it.' The reason for the rule as expressed by Judge Keller is that the jury is entitled to know the nature of the conditions which might reflect bias, prejudice,
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expectation of clemency, leniency or offers of immunity from the Commonwealth so that they may, as jurors, properly weigh and evaluate the testimony as it comes from a co-indictee. In the instant case, a reading of the entire record clearly establishes that defense counsel was given wide latitude and abundant opportunity to interrogate the witness Narr to test his veracity. Defense counsel elicited the fact that the witness had been in and out of the penitentiary; that he presently was out on parole; that he had pleaded guilty to burglary the very day he was called as a witness; that he had thus violated his parole. In addition, defense counsel was permitted to elicit the following:
'Q. Do you recall, Mr. Narr, how many times you have been convicted of the offense of entering a building? A. Two or three, I would say.
'Q. Do you recall how many times you have entered a plea to a charge of entering a building? A. Offhand, no.
'Q. Are you the same Dominic Narr, alias Dominic Nolan that was tried and found guilty on December 18th, 1931 ...