Johnson v. Commonwealth , 115 Pa. 369 ( 1887 )

Mr. Justice Sterrett

delivered the opinion of the court, March 21st, 1887.

In view of the evidence before the jury, it may be safely assumed they had no difficulty in reaching the conclusion .that the killing of John Sharpless was a wilful, deliberate and premeditated murder, and also that the perpetrator of the crime .was the person who enticed him from the house and shortly afterwards returned thither and demanded money from Mrs. .Sharpless. All the facts and circumstances testified to by .those who were present at the time, together with those disclosed by the post mortem examination, point with reasonable ■certainty to these conclusions. The verdict, based upon such .evidence, may therefore be regarded as conclusively establishing the corpus delicti. But, of course, it was incumbent on the Commonwealth to go farther and prove to the satisfaction of the jury that the prisoner was the guilty man. Testimony was accordingly introduced for the purpose of identifying the prisoner, locating him near the scene of the murder about the time it was committed, and proving his own admissions of fguilt.

On the subject of identity,^.the testimony tended to prove that, in general appearance, prominence of front teeth, tone-of voice, character of dress, etc,, the prisoner resembled the assassin as seen by members of deceased’s family on tire night of the murder. They represent him as being clad in dark clothing, soft felt hat, long frock coat, white handkerchief around his neck, no overcoat, etc. The hat and coat, as described by them, correspond with those that the keeper of Moyamensing Prison says he gave Johnson upon his discharge therefrom on-the .preceding BYiday morning, and those worn by him during the next two succeeding days.

According to the testimony of Charles Stephens, the prisoner came to his house between one and two o’clock in the morning — three or four hours after the murder — clad in a dark Suit of clothes, sloucli hat, long coat and handkerchief around his neck. After remaining a few hours and warming himself he left before daylight same morning; but before leaving he said to Stephens “ he -liad been husking corn down the country and had stopped at places where he generally lodged and could not get in, and had been- recommended to come over to my (his) house to warm himself; ” also said “ he had seen Sharp-less’ barn on fire and it lighted up all the woods around; . . : . . had seen it burning that night when he came past it to come' up here.” Speaking of the prisoner’s condition at that time, the witness says “ he was foot sore and sick, and it appeared to me the man had chills: .he was shivering and groaning as a sick man would.”

The evidence of self-criminating admissions is found in the testimony of Alexander Pritchett, who says in substance that he and Johnson, as fellow-prisoners in Moyamensing, talked familiarly about what they would do when their respective terms of imprisonment expired. A trip to New York and'the expense attending same being suggested, Johnson said he knew where he could get two or tlu-ee hundred dollars, and when they both got out he would “ go down and get that stake and then ” they would go over to New York. Pritchett was discharged from Moyamensing in October, 1885, and Johnson on Friday, November1 20th following. They met that morning, and in course of conversation Johnson said, “I think I can get $200 or $300, about two miles from Chester......I am 'going down to get it.” After remaining together about two hours at that time they separated and met again next evening. Johnson then said, “I am going down to get that stake, . .'. '• • I don’t want-to go down before Sunday night and I am going to walk.” Pritchett also testified that at their next interview-on following Thursday, Johnson said, “ I didn’t get Avhat I went for and I had to knock an old fellow in the head down here about two miles from Chester,.....and I got only $6.” At a subsequent interview — three weeks afterwards —Johnson said the name of the man he had knocked in the head was Sharpless.

All the evidence, direct and circumstantial, bearing on the subjects thus briefly adverted to, was competent and proper for the consideration of the jury. It was fairly submitted to them in a clear and comprehensive charge of which the prisoner has no reason to complain. The credibility of the witnesses was solely for the jury. If they believed that Pritchett testified truthfully as to the prisoner’s self-criminating admissions, and that those admissions were not a tissue of wilful falsehoods uttered by the latter, they were warranted— especially in view of other corroborating evidence — in rendering the verdict they did. The case of the Commonwealth did not rest upon the testimony of Pritchett alone. The evidence as to the prisoner’s identity, his whereabouts at the time of the murder, etc., tended in no small degree to corroborate the truth of the admissions testified to by Pritchett. One of the most damaging circumstances in the case was the fact referred to by the learned judge in his charge, viz: that while the prisoner’s whereabouts was satisfactorily accounted for from the time he left Moyamensing on Friday morning until about ten o’clock Sunday morning, and then from between one and two o’clock that night until he was arrested, the- gap between Sunday forenoon and midnight was not accounted for except by his own admission to Stephens, and that tended to locate him at or near the scene of the murder about the time it was committed. One of his own witnesses, Benjamin White, testified he saw him at ten o’clock Sunday morning, and that night, shortly after midnight, he went to Stephens’ house for shelter and told the story of his having been down the country husking corn and having seen the burning barn on his way up. The theory of the Commonwealth was that the prisoner set out on a mission of robbery Sunday forenoon, went to the house of Mr. Sharpless that night, enticed him therefrom and murdered him, and went thence to the house of Charles Stephens where he arrived between one and two o’clock in the morning. The evidence in support of this theory was both direct and circumstantial. If the jury believed, as they doubtless did, that all the facts and circumstances, as they found them, pointed clearly and satisfactorily to that conclusion, and were at the same time irreconcilable with any other reasonable hypothesis arising out of the evidence, they could not consistently do otherwise than find him guilty; and their verdict should not be disturbed unless the learned judge erred in one or more of the particulars specified in the assignments of errors.

The first and fourth specifications, relating to the testimony of Lewis Morris Lewis, may be considered together. The evidence therein complained of was not introduced for the purpose of showing the prisoner was guilty of a distinct and independent crime, but as a link in the chain of evidence tending to prove this identity. It is never irrelevant to give in evidence any circumstance which tends to make the proposition at issue more or less probable. Nor is it necessary to offer at once all the circumstances necessary to prove such proposition. The party seeking to prove or disprove it may proceed step by step, offering link by link. Whatever is a condition, either of the existence or non-existence of’ a relevant hypothesis, may thus be shown. No matter how slight may be the inference of identity to be drawn from any single fact, it is admissible as a fragmen t of the material from which the induction is to be made: Whart. Evidence, Sects. 21, 24, and authorities there cited. Mrs. Sharpless had testified, inter alia, that the man she confronted, on the night of the murder, wore a dark frock coat, “ of pretty good length,” &c., corresponding to the one exhibited in the court. The testimony of the keeper of Moyamensing prison was, that when Johnson was discharged on November 20th, he gave him “"a pair of black pants, a long dark coat,” similar to the coat shown in court and referred to by Mrs. Sharpless. It was important therefore for the Commonwealth to show where the coat thus exhibited to these witnesses came from, and if possible connect the prisoner with its possession. For that purpose the testimony of Lewis, in connection with that of Officer Anderson was relevant. The latter testified that in the house where prisoner lived when arrested he found two coats, claimed by him, one of which he said he had bought from a tramp in West Philadelphia; also a spirit level which he said he had found on the street. The coat which he alleged he had bought from the tramp, spirit level and other articles found in his possession, were identified by Lewis as his property taken by some one from his house shortly after the murder. He also identified the coat — exhibited in court and referred to by Mrs. Sharpless and Livingston, the keeper of Moyamensing — as the coat left at his house at the time his own coat, spirit level and other articles were taken. The tendency of this evidence was to trace into the prisoner’s possession the coat thus identified by Lewis. In the absence of satisfactory explanation as to how he acquired Lewis’ property the fact that these articles were found in his possession and were claimed by him, warranted the inference that he probably took them away and at the same time left the long frock coat in question. The evidence, it is true, was purely circumstantial, and in itself perhaps not very strong, but it was nevertheless relevant and proper for the consideration of the jury in connection with other facts and circumstances tending to' prove the identity of the prisoner and connect him with the commission of the felony charged in the indictment.

The second and third specifications, relating to the action of the district attorney in calling upon the prisoner to stand up and repeat certain words, &c. in the presence of Mrs. Sharpless, may be dismissed with the remark that no objection was made or exception taken thereto in the court below. So far as the record shows, the request was promptly a_ceeded to without any objection either by the prisoner himself or his counsel. Having thus waived the right of objection and taken the chances of a favorable result, it would be contrary to every rule of practice to permit him to take advantage of ■yvhat was done, even if it was erroneous.

Our right to review proceedings of the court below, in cases like this, is limited to such rulings on points of law or evidence as are excepted to at the time, and made matter of record: Fife et al. v. Com., 29 Pa,. 429; Hopkins v. Com., 50 Pa., 9. It does not appear that the silence of the record, as to any objection or exception to the action complained of, is the result of accident or mere oversight. If such had been the case, the court on application would have so corrected the record as to show what actually occurred on the trial. But, assuming for the sake of argument that timely objection was made and exception taken, we are not prepared to say it would be of any avail to the prisoner. He was not asked, much less compelled, “to give evidence against himself.” The sole object of the request was to afford the witness, Mrs. Sharpless, then on the stand, an opportunity of seeing the prisoner and heariug the sound of his-voice, so that she might the more intelligently testify whether he was or was not the man by whom she was confronted on the night in question. To hold that this was a violation of the clause, in sec. 9 of the Declaration of Bights, which declares the accused “cannot be compelled to give evidence against himself,” would in my judgment be a strained construction of that instrument. If it should be sanctioned, what would prevent a person accused of having stolen property in his possession from successfully interposing a like plea of constitutional immunity and thus thwarting any attempt to search for and recover the property? While the constitutional rights of those accused should never be violated, care must be taken not to deprive the Commonwealth of any legitimate means of detecting and punishing crime.- It is not our purpose, however, to pass upon the question, intended to be raised by these specifications, until it is properly presented. If it should ever arise and be deemed worthy of serious consideration, it will then be definitely settled.

. The subject of complaint in the fifth specification is that part of the charge wherein the learned judge says: “You have heard the evidence of the Commonwealth, and it seems to point to this defendant as the man who committed the crime; but it will be for you to say whether the index is sufficiently certain to warrant you in a conviction. I say the evidence seems to point to this defendant as the murderer; it undoubtedly does.”

This is merely an expression of opinion that was manifestly warranted by the evidence. In immediate connection therewith, as well as in other portions of the charge, the jury was distinctly instructed that the question of the prisoner’s guilt was one of fact exclusively for their consideration and determination. In the very next sentence the learned judge proceeds to says: “Whether the evidence is sufficient to satisfy you beyond a reasonable doubt that he is the guilty man, is a question entirely for the jury, I do not intend, if I can avoid it, to give you the slightest jntimatioq of my own judgment, after hearing the testimony, as to what your verdict should be; and if I did, you would not be bound by it.” Indeed, throughout the entire charge, which contains a full, clear and accurate exposition of the law applicable to the case, he appears to have been especially careful to impress upon the minds of the jury the fact that the burden of establishing the prisoner’s guilt, beyond a reasonable doubt, was on the Commonwealth, and that the question at issue was exclusively for- their determination under all the evidence before them.

There is nothing erroneous or improper in those portions of the charge recited in the sixth and seventh specifications respectively. In a certain sense the former may have been “ prejudicial ” to the prisoner, but that was not the fault of the court. It was the logical sequence of evidence which, if believed by the jury, had a criminating tendency, especially when considered in connection with other evidence in the case. We have already adverted briefly to that part of the charge referred to in both of these specifications. The whereabouts of the prisoner, from Friday morning until Sunday forenoon, and then again from one or two o’clock same night and after-wards, was satisfactorily accounted for by the testimony of the Commonwealth; but, as to where he wms from Sunday forenoon until after midnight, the only evidence we have is contained in the testimony of Stephens, to which the learned judge refers; and that tends to locate him in the vicinity of the murder at the time it was committed, without furnishing any plausible reason for Lis being there. It was for the jury to say, from all the evidence before them, whether he was there or not, and if there, whether the reason he gave for being in the neighborhood at the time was true or false. In view of the evidence as to his whereabouts from the time he was discharged from Moyamensing until the following Monday morning, the story of his having been down the country husking corn would appear to be wholly improbable. All that was said by the court on the subject complained of was fully warranted by the testimony of Stephens and other witnesses.

There is no error in portions of the charge quoted in the eighth and ninth specifications. What is there said by the court relative to the testimony of William Hahn and Lewis Morris Lewis, is neither improper nor unwarranted. At most the former is nothing more than a mere expression of opinion ; and the latter is an explanation of Lewis’ testimony calculated to assist the jury in understanding its proper application and bearing.

The subject of complaint in the remaining three specifications is the alleged defect of the record, in not showing the presence of the prisoner in court, either “ when the jury was sworn,” or “ when the verdict was rendered,” or “ during the time of trial.” By mere mistake of the cleric these essential facts were omitted from the record, as at first made up, but attention having been called to the omission, the court, during same term at which the motion for new trial was overruled and sentence pronounced, ordered the necessary correction to be made, so that the record would conform to the facts as they actually occurred; and this was accordingly done. If the correction had not been thus made, the defect would have been fatal. The presumption of regularity, etc., which prevails in other cases, does not apply to records of ■conviction in capital felonies. During the term at which the trial was concluded and while the record is presumed to be in the breast of the court, the power to supply clerical omissions, and so correct the record that it will conform to the facts, cannot be doubted.

The trial throughout appears to have been conducted with due regard to the rights of the prisoner; and we find nothing in the record that would justify a reversal of the judgment.

Judgment affirmed, and it is ordered that the record be remitted for the purpose of carrying the sentence into execution.