# Commonwealth v. Kloiber > Supreme Court of Pennsylvania · June 28, 1954 · 378 Pa. 412 URL: https://www.frixlaw.com/law-library/cases/9727375 ## Case - **Full name:** Commonwealth v. Kloiber, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** June 28, 1954 - **Citations:** 378 Pa. 412; 106 A.2d 820; 1954 Pa. LEXIS 607 - **Precedential status:** Published - **Opinion:** Concurring in part by Musmanno - **Judges:** Stern, Stearn, Jones, Bell, Chidsey, Musmanno, Arnold - **Cited by:** 447 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9727375 ## How later opinions describe it (automated extraction) - holding that “where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy… - stating that “[w]here the opportunity for positive identification is good and the witness is positive in his [or her] identification and his [or her] identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualifie… - stating that a court should caution the jury about identification testimony, “where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to… ## Opinion text *428 Opinion by Mr. Justice Musmanno, Concurring and Dissenting In Part: I concur in the Majority Opinion but I can be something less than enthusiastic about its citing with approval the quotation from Commonwealth v. Bausewine, 354 Pa. 35 , in which Justice Drew (later Chief Justice) said: “The facts and circumstances proved must, in order to warrant a conviction, be such as to establish the guilt of the defendant, not necessarily beyond a moral certainty, nor as being absolutely incompatible with his innocence, but at least beyond a reasonable doubt.” In fact, I do not agree at all with the statement made by Chief Justice Drew that a conviction is proper even though the evidence is not absolutely incompatible with innocence. What happens to the time-honored rule that all doubts are to be resolved in favor of the accused if a jury is allowed to return a verdict of guilty when it is not morally certain of the defendant’s guilt and the evidence is not incompatible with innocence? Although a juror can with a good conscience return a verdict of guilty where he is convinced of the defendant’s guilt beyond a reasonable doubt that does not amount to mathematical certitude, I doubt that he can sleep easily of nights if by his vote he sends a defendant to prison or to his death when he entertains a moral in-certainty as to his guilt. This Court has often said: “When a charge of crime is sought to be sustained by circumstantial evidence, the hypothesis of guilt should flow from the facts and circumstances proved, and be consistent with them all. The evidence must be such as to exclude to a moral certainty every hypothesis hut that of guilt of the offense imputed; the facts and circumstances must not only be consistent with and point to *429 the guilt of the accused, bub they must be inconsistent with his innocence.” * (Emphasis supplied.) Has the Supreme Court of Pennsylvania decided to jettison this universal and time-honored rule which has been the lifeboat saving many an innocent person from a sea of seemingly incriminating circumstance which otherwise would have engulfed him? Moral certainty means being honest with oneself. Once we allow convictions when the jurors are not honestly certain of the guilt of the accused, a hole beneath the water line has been driven into the ship of criminal law. To say that a jury may blast into disgrace a defendant while doubt beclouds the mind and uncertainty upsets the heart is to batter down one of the stoutest pillars of the temple of justice erected to protect the innocent as well as convict the guilty. I concur in the results of this case but dissent from any view which holds that moral certainty is a dead letter in the jurisprudence affecting the lives and liberties of those accused of crime. Commonwealth v. Holt, 350 Pa. 375, 397 ; Commonwealth v. Bardolph, 326 Pa. 513, 521 ; Commonwealth v. Benz, 318 Pa. 465, 472 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727375. Public record. Not legal advice.