
    Commonwealth v. Rothensies et al.
    
      Criminal law — Trials—Improper remarles of counsel — Motion for continuance — Refusal.
    The refusal of'a motion for continuance, based upon improper ' remarks by the district attorney in his address to the jury, is not reversible error, where it appears that the remarks, complained of were called forth as a retort to remarks made by defendant’s counsel, and where it further appears that defendant’s rights were sufficiently protected by the trial judge in his charge to the jury.
    Argued Jan. 4, 1917.
    Appeals, Nos. 362 and 363, by David W. Rothensies and Frederick Gr. Anderson, respectively, from judgments of Superior Court, Oct. T., 1915, Nos. 230 and 231, affirming sentence of Q. S. Berks Co., June Sess., 1913, No. 168, on verdict of guilty, in case of Commonwealth of Pennsylvania v. David W. Rothensies, Frederick C. Anderson, Elwood S. Snyder, Charles Á. Stephens, Ed. J. Thomas, John W. Levegood, William E. Fisher, James Mackellar, John W. Pratt and Eugene F. Carpenter.
    Before Brown, C. J., Mestrezat, Potter, Stewart, Mosohzisker, Frazer and Walling, JJ.
    Affirmed.
    Appeal from the Superior Court.
    Indictment for conspiracy to defraud.
    The facts appear in Commonwealth v. Rothensies, 64 Pa. Superior Ct. 395.
    The jury found a verdict of guilty and sentence was subsequently passed. Defendant appealed to the Superior Court. The Superior Court affirmed the sentence of the Court of Quarter Sessions. David W. Rothensies and Frederick G. Anderson appealed.
    
      Error assigned was the judgment of the Superior Court.
    
      Joseph R. Dickinson and William Kerper Stevens, with them Graham & Gil filian, for appellant.
    
      Harvey F. Heinly, with him Samuel E. Bertolet and Wilson S. Rothermel, for appellee.
    January 29, 1917:
   Per Curiam,

These appeals were allowed solely on the ground of alleged improper remarks made by the district attorney in his closing address to the jury. The majority of the court are of opinion that each appeal should be dismissed and each judgment affirmed on the following- from the opinion of the Superior Court, dismissing the appeal of Rothensies to that court: Com. v. Rothensies, 64 Pa. Superior Ct. 395. “The 20th specification of error is based upon the refusal of the court to withdraw a juror and continue the case because of certain language used by the district attorney in Ms closing argument to the jury. In disposing of a motion of this character the court below exercises a discretion which is reviewable only for abuse. There may be instances where the refusal to withdraw a juror because of an objectionable remark of the district attorney would be, in all the circumstances, an abuse of discretion, but the remarks complained of in the present case aré not of that nature and it may be fairly held that they were called out. by the appellant’s counsel, who it is admitted had said ‘The Commonwealth is bound to prove its case: we are not bound to prove our innocence; and the fact that they took five days and a half to present their case, and we took one hour, shows to you, gentlemen of the jury, that they must have considered that they had a very hard job on hand.’ This language upon the part of defendant’s counsel invited a retort in kind and the language of the district attorney in that retort is the subject of the complaint under this specification of error. What was said by our Brother Orlady in Commonwealth v. Sarves, 17 Pa. Superior Ct. 411, is applicable in this instance: ‘While the printed record indicates that in the contest before the jury excessive earnestness on the part of contending counsel was displayed, and expressions of doubtful professional propriety were used, yet it is not clear that the manner of trial injuriously affected the defendant. Such forensic displays rarely affect the deliberate judgment of a jury, and in this case they were conducted under the supervision of the trial judge, who fully guarded the rights of the defendant in a temperate and impartial charge.’ The court below was in better position to know than we. are whether the remarks were likely to have a prejudicial effect, an effect which could only be counteracted by allowing the motion. Upon a full view of the charge of the court which followed these alleged objectionable remarks, and of the evidence in the case, we are unable to conclude that there was such abuse of discretion as requires a retrial of the case: Commonwealth v. Shields, 50 Pa. Superior Ct. 1:”

Judgments affirmed and records remitted to the court below, that the order of the Superior Court in each case may be carried into effect.  