Appeals, Nos. 98, 99 and 100, Oct. T., 1954, from judgment of Court of Oyer & Terminer of Chester County, Sept. T., 1953, Nos. 253, 253A and 254, in case of Commonwealth of Pennsylvania v. Chester McQueen. Judgment reversed.
William E. Parke, for appellant.
John E. Stively, Jr., Assistant District Attorney, with him Joseph G. McKeone, District Attorney, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 178 Pa. Super. Page 40]
The defendant was convicted after trial by jury of burglary and larceny. The only question before us is whether there was error in the charge of the court, particularly relating to alibi, which entitles him to a new trial. The Commonwealth contended that five boys, including the defendant, committed the offenses on the night of March 28, 1953. Two of the five boys said they did, and testified that the defendant participated in the crimes.
The defendant, who was not taken into custody until nearly four months after the offenses were committed, denied his guilt and said he was not at the scene of the crime at the time it was committed.
He testified on direct examination as follows: "Q. On the night of March 28 or early in the morning of March 29, do you remember where you were? A. I know just about where I was. Q. Where were you? A. Oh, as I remember the 28th, that was on a Saturday night, and I usually go to the movies Saturday night, and that is where I probably was. I couldn't say definitely. The Court: No. Where were you that night, not what you probably did or usually do? The Witness. I was probably home in bed."
The trial court concluded that this testimony was an attempt to establish an alibi, and, over objection of defense counsel, charged the jury on the basis that defendant had attempted to establish an alibi.
An "alibi" is defined as "... the defense that the accused was elsewhere at the time the crime was committed:" 22 C.J.S., Criminal Law, § 40, Com. v. Larue, Appellant, 158 Pa. Superior Ct. 219, 221, 44 A.2d 535 (1945).
If a person says "I was not at the scene of the crime but I do not remember where I was," he is not attempting to prove an ...