Opinion
October 5, 1928.
November 21, 1928.
Criminal law — Rape — Evidence — Sufficiency.
In the trial of an indictment charging defendant and five others with rape, the evidence disclosed that defendant invited the prosecutrix to a party, held in a vacant house. The prosecutrix testified that the six men took her upstairs and that, although the room in which the crime was committed was dark, she saw them as they came from the room where it was light. Later she testified that she could not say that the defendant assaulted her, because it was dark, but persisted that all of them participated in the crime. In such case the evidence was sufficient to sustain a conviction.
It was immaterial that there was no proof of the actual commission of the crime by defendant. If he was a participant in the scheme to forcibly debauch the girl and aided and abetted the crime he was equally guilty with the rest of the actors in the occurrence.
Appeal No. 282, October T., 1928, by Samuel Krinsky from judgment of Q.S., Philadelphia County, June T., 1928, No. 205, in the case of Commonwealth of Pennsylvania v. Charles Bernard, Abraham Bartask, Charles Zander, Samuel Krinsky, Herbert Hasson and Charles McCarthy.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNIGHAM, JJ. Affirmed.
Indictment for rape. Before GORDON, J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty upon which judgment of sentence was passed. Defendant appealed. Error assigned was the refusal of defendant's motion for a new trial.
William A. Gray, for appellant.
Lemuel B. Schofield, Assistant District Attorney, and with him Charles F. Kelley, Assistant District Attorney, and John Monaghan, District Attorney, for appellee.
Argued October 5, 1928.
The defendant is charged with having with others committed an outrageous assault upon the prosecutrix. The only question raised is, was the evidence adduced by the Commonwealth sufficient to sustain the conviction of the defendant? Without going into the revolting details, we will merely point out the testimony which we think was sufficient to connect him with the crime. The defendant invited the prosecutrix, a young Polish girl, nineteen years of age, to a party held in a vacant house. When the crime was committed, the room was in darkness and of course the prosecutrix could not testify as to any particular aggressor.
We quote: "How many of these men took you up?" A. Indicating all of them who are sitting here. The Court: "Did she say all that are sitting here?" (Interpreter) "All of them who are sitting here." "Do you mean by that the six young men who are sitting here, the six defendants?" A. "Yes sir." Subsequently she again testified that all of them took her up stairs. That although the room in which the crime was committed was dark, she "saw them, they came from the room where it was light." It is true that she afterwards said that she could not say that Krinsky assaulted her because it was dark, but she persisted that "all of them want to bother me." A witness who was present at the beginning of the party testified that she heard Krinsky, the defendant, say, "We will get her, we'll get her drunk." Witness stated — when I was coming down stairs he passed a remark referring to me "Why didn't we line that broad up," referring to her.
It is immaterial that there is no proof of his actual commission of the crime. If he was a participant in the scheme to forcibly debauch the girl and aided and abetted the crime, he is equally guilty with the rest of the actors in the occurrence. The testimony of the prosecutrix was received through the aid of an interpreter and there are some of her answers which lack clearness and there are some contradictions. It was for the jury to conclude what she intended to say. There is sufficient testimony to sustain the verdict.
The assignments are overruled. The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.