Appeal, No. 304, Jan. T., 1960, from judgment of Court of Oyer and Terminer of Philadelphia County, May T., 1958, No. 780, in case of Commonwealth of Pennsylvania v. Harold Johnson. Judgment reversed; reargument refused April 10, 1961.
Paul Leo McSorley, with him John E. Walsh, Jr., for appellant.
Thomas M. Reed, Assistant District Attorney, with him Patrick F. Casey and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
This is the case of one of eleven defendants who have been separately tried for the beating to death of a Korean student named In-Ho-Oh in Philadelphia on April 25, 1958. He pleaded not guilty but was convicted of murder in the first degree by a jury, which set the penalty at imprisonment for life.
As we must remand the record for a new trial, we will not narrate the evidence. It should suffice to say that while the defendant on trial did not strike the deceased he was seen going through his pockets and that the wallet of deceased was found in the home of one of the other defendants. The defendant's several and conflicting statements were offered to the jury to pass upon. The question of whether there was a conspiracy and a robbery and whether defendant had a part in it seems amply suggested by the evidence and hence to warrant submitting the issue of his guilt or innocence to the jury.
Error is alleged in allowing the Commonwealth to use gruesome colored slides of the bruised deceased. Pictures may not be excluded merely because they are horrid, but they should not be overused and they should have a purpose, such as to show the severity of the attack, as in Commonwealth v. Buzard, 365 Pa. 511 (1950), 76 A.2d 394, or the kind of crime it was, as in Commonwealth v. Novak, 395 Pa. 199 (1959), 150 A.2d 102. Here they could have shown bruises that
pointed to a forcible robbery and hence a felony murder. Since the case will be remanded, we are constrained to suggest that the pictures should not, if used, be put before the jury for so long a time. Out of four and a half days of trial, they were on exhibit for half a day, enlarged on a screen. Although they were being subjected to medical explanation, we regard the duration of their view as excessive. Such pictures may be used as a fine point of demonstration but not as a bludgeon for winning the case.
Complaint is also made that the court admitted evidence before the jury of the defendant's juvenile record, as well as a psychiatric report about him.
The case was tried before the Act of December 1, 1959, P.L. 1621, 18 PS § 4701, and hence the errant evidence was presented to the jury as part of the Commonwealth's case in general. The juvenile court record was inadmissible under Holmes' Appeal, 379 Pa. 599 (1954), 109 A.2d 523, where we pointed out that the Juvenile Court is not a criminal court; under Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224 (1958), 144 A.2d 367, where we referred to the informality and difference in procedure of the Juvenile Court; and also under the Act of June 2, 1933, P.L. 1433, § 19, 11 PS § 261. The Act reads: "No order made by any Juvenile Court shall operate to impose any of the civil disabilities ordinarily imposed by the criminal laws of the Commonwealth, nor shall any child be deemed to be a criminal by reason of any such order or ...