Appeal, No. 284, Oct. T., 1957, from judgment of Court of Quarter Sessions of Philadelphia County, August T., 1956, No. 1166, in case of Commonwealth of Pennsylvania v. Edward Williams. Judgment affirmed.
Cecil B. Moore, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 313]
This is an appeal from the judgment of sentence of the Court of Quarter Sessions of the Peace of the County of Philadelphia. The appellant was convicted by a jury, of loitering and prowling in violation of the Act of May 27, 1949, P.L. 1900, Section 1, 18 PS § 4418.
On May 1, 1955, at or about 1:35 a.m., Edward Williams, the appellant, was arrested after he climbed over a six foot fence, topped with barbed wire, into the rear yard of the Star Hotel at 2037 Arch Street, Philadelphia. He was wearing rubber galoshes, even though the weather was dry. He first told the arresting officer he was going to rob the hotel. Later he testified that he went to the hotel to meet a woman friend with whom he had made an assignation. He did not tell the officer the real reason for his presence because he was a married man. He was indicted for attempted burglary and loitering and prowling. At the trial, a demurrer was sustained to the charge of attempted burglary. The jury found him guilty of loitering and prowling. He was sentenced to pay the costs, a fine of $5 and nine months imprisonment in the county prison.
[ 185 Pa. Super. Page 314]
The appellant complains of that portion of the court's instructions that read as follows: "If you believe the Commonwealth's witness under the evidence it would be your duty to convict, and if you believe the defendant it would be your duty to convict." The appellant claims this amounts to a directed verdict of guilty. "There are undoubtedly cases in which it is proper for the judge to instruct the jury that if they believe the evidence of a defendant it is their duty to convict him. It is, however, manifest that in order to justify such an instruction, it must appear that the testimony of the defendant, if true, establishes every fact essential to warrant a conviction": Com. v. Hull, 65 Pa. Superior Ct. 450, 463 (1917). This is just such a case.
This part of the charge, however, was followed by instructions to the jury that they did not have to believe either the testimony of the Commonwealth or the defendant. We should not consider this complaint because no exception was taken to this portion of the court's charge, nor was it called to his attention: Com. v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950). However, viewing the charge as a whole, the jury was left free to pass on the issues of fact arising under the evidence.
Was prejudicial error committed by the trial judge in his definition of the element of malice in this offense? The statute reads as follows: "Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor, ..."
The court charged the jury that the word "maliciously" as used in this statute "means an intent to do a wrongful act." ...