Appeals, Nos. 116 and 117, April T., 1955, from judgment of Court of Quarter Sessions of the Peace of Westmoreland County, May T., 1954, Nos. 227 and 227A, in case of Commonwealth of Pennsylvania v. J.E. Kettering. Judgment reversed.
James Gregg, with him Vincent R. Smith, for appellant.
Joseph M. Loughran, Assistant District Attorney, with him L. Alexander Sculco, District Attorney and John K. Best, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 248]
The defendant was convicted of indecent assault, a common law offense. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, 185. The child involved was a six-year old girl. The defendant has appealed from the sentence imposed, contending that he is entitled to a new trial because of prejudicial error in the admission of evidence and inadequacy in the charge of the court on his defense of alibi.
[ 180 Pa. Super. Page 249]
There can be no doubt that the offense was committed by someone. Shortly after two in the afternoon of March 16, 1954, the child, whom we shall refer to as Marcia, on her return from school, reported to her mother in their home in Greensburg. About 4 o'clock she was given permission to cross the street where she roller skated with three other children in the neighborhood. She was accosted by a strange man on the sidewalk and in response to his suggestion went for a ride with him in his automobile. The criminal act was committed in the car, stopped at a rural school house about one-half mile south of Greensburg. The child was returned to Greensburg and was discharged from the automobile near her home. She, clutching a 50 cent piece which her assailant had given her, immediately went into the house and told her mother of her experience. The mother fixed the time of her arrival home at "shortly after five." The child reported that on the way home the man said he was "Doc Andrews" and told her that the car was a Cadillac. Although she could not spell, she recognized the word "Cadillac" in metal script on the right front side of the body of the car. She described the color of the car as two-tone green, dark green on top and light green body, but on cross-examination conceded that "it might have been light green all over." The defendant after his arrest was brought to the home of Marcia's parents on March 26, and there she on sight identified him as "Doc Andrews." She also identified the defendant as her assailant at the preliminary hearing and, again, in court at the trial. On March 26 when a police officer asked Marcia to look at defendant's Cadillac car she said that it was the one in which the offense was committed. She so concluded principally because of its color. However the two-tone paint job did not identify the car to the exclusion of others in the area. The local dealer from
[ 180 Pa. Super. Page 250]
whom defendant bought the car testified that he had sold 25 Cadillacs during the preceding three years with the same two-tone green paint combination.
Since the criminal act was proven and not contraverted, the issue before the jury was the identity of the defendant as the culprit. Regardless of Marcia's apparent intelligence she was but a six-year old child. A conviction, from necessity, may rest upon the uncorroborated testimony of a mere child, but the testimony of the child as to the identity of the assailant, because of the inherent possibility of error, must be open to the closest scrutiny by the jury. And in cases of sex perversion such as this where jurors, outraged by the loathsomeness of the offense are prone to convict, there is a duty on the trial judge to safeguard the rights of a defendant by presenting the issue of identity to the jury in a light as favorable to him as the testimony will admit.
If the alibi evidence in this case had been marshalled and submitted in apposition to the Commonwealth's evidence of identity a situation somewhat more favorable to the defendant would have been presented. Marcia's mother fixed the time and a period of about one hour within which the offense was committed. She gave Marcia permission to cross the street to play with ...