Opinion
May 3, 1937.
May 5, 1937.
Criminal law — Practice — Trial — Withdrawal of juror — Remarks of prosecutor — Reference to picking on officers when case is weak.
The refusal of a new trial, after conviction on an indictment charging assault and battery, applied for on the ground that the prosecuting attorney, in his closing address to the jury, had improperly remarked, that "when the facts in the case are weak, and the law is weak, it is usual to pick on the officers; good father, good mother, bad officers and not a word about defendant," was on appeal held not to be reversible error, where the statement was made in response to the argument of counsel for the defendant who devoted much time to the character of defendant's parents and the bad conduct of the Commonwealth's officers, and defendant did not move to withdraw a juror nor did he request the trial judge to instruct the jury to disregard the objectionable language, although the court did so of its own motion.
Appeal, No. 47, Feb. T., 1937, from judgment of Q.S. Luzerne Co., Sept. Sessions, 1936, No. 199, in case of Commonwealth v. Albert Rymsza.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES, and RHODES, JJ. Judgment affirmed.
Indictment for aggravated assault and battery and simple assault and battery.
Verdict of guilty of simple assault and battery and judgment of sentence thereon.
The facts are stated in the opinion of the lower court, by JONES, J., as follows:
Defendant was indicted for aggravated assault and battery in the first count and simple assault and battery in the second count and the jury found him guilty of simple assault and battery, and this is a motion for a new trial, based upon two assignments of error, an improper remark by the prosecuting attorney in his closing address to the jury, and the verdict against the evidence.
The alleged improper remark, as appears from the record, consisted in the following statement: `When the facts in the case are weak, and the law is weak, it is usual to pick on the officers; good father, good mother, bad officers and not a word about defendant,' and when objection was made we directed the jury to pay no attention to it.
The statement was made in response to the argument of counsel for the defendant who devoted much time to the good character of defendant's parents and the bad conduct of the Commonwealth's officers. His statement invited the prosecutor's remark. There was no motion to withdraw a juror nor did he request the trial judge to instruct the jury to disregard the objectionable language, although the Court did so of its own motion. The remark did not improperly influence the jury as the evidence given by the Commonwealth was ample to support a conviction on the first count in the indictment, a much more serious offense. This verdict was not against the evidence as stated. The evidence warranted his conviction of aggravated assault and battery. . . . . . Defendant had a fair trial and his conduct in fleeing from the scene of the crime and attempting to inflict injury on the officers pursuing him by trying to run them down in an automobile, with all the other evidence in the case, established his guilt.
The motion for a new trial is denied.
Defendant appealed.
Error assigned was refusal of motion for new trial.
Rocco C. Falvello, for appellant.
Joseph R. Sherman, Assistant District Attorney, and Leon Schwartz, District Attorney, for appellee, were not heard.
Argued May 3, 1937.
The judgment is affirmed on the opinion of the learned judge of the court below, Judge JONES, as it appears in the reporter's statement.