Commonwealth v. Barnak , 357 Pa. 391 ( 1947 )

I cannot accept the decision of the majority as a correct interpretation of the facts and law of this case. I think it the very opposite of that, and in effect a denial of the fundamental and constitutional right of defendant to a fair and impartial trial. After a thorough examination of the voluminous record in the case, I not only am in complete agreement with the dissent of Mr. Justice JONES, but am further of the opinion that a new trial should be granted defendant for the following reasons.

It was error for the Commonwealth to be permitted to offer evidence, over defendant's objection, that on October 18, 1945, over two months before the fatal shooting, defendant's wife instituted a criminal prosecution against him, even though no conviction resulted. This clearly was directly contrary to the rule enunciated by this Court in the recent case ofCommonwealth v. Jones, 355 Pa. 594, 50 A.2d 342. In that case we held that mere evidence of a prior arrest, without proof of conviction, is not relevant evidence in a murder trial. There we said (pp. 597-598): "Even if it is definitely proved to a jury that a man has been arrested, of what probative value is that fact? Unless convicted, a man remains innocent and the law cannot in justice cast a shadow on his character for a mere arrest. It could not help the jury to know what manner of man the accused was, because the mere fact of an arrest does not prove or disprove anything."

It was error for the learned trial court to admit in evidence the record of a habeas corpus proceeding instituted by defendant for the custody of his children. "It is fundamental that no testimony is admissible unless it is relevant, i.e., unless it is of a nature to afford evidence tending to prove or to disprove the matters in issue": Commonwealth v. Jones, supra. A habeas corpus proceeding involving the custody of children is a civil action and the fact that defendant availed himself of his legal right to bring such a suit against his wife was irrelevant in this trial. The district attorney, during cross-examination of defendant, was permitted to read testimony given by defendant's wife in that proceeding, wherein she accused him of unnatural sexual practices and other physical abuse, which accusations defendant had denied. The total effect was extremely harmful to defendant, because while being tried for the murder of Bowman, he was called on to defend himself against collateral issues of a highly inflammatory and prejudicial nature.

It was error to admit the two empty cartridge shells in evidence as an exhibit. Although they were found near the scene of the crime no testimony connected them in any way with the bullets found in the victims' bodies or with defendant. The admission of this evidence was prejudicial to the defense.

It is my considered opinion that this defendant was deprived of a fair and impartial trial and that a new trial should here be granted him.

Mr. Justice JONES joins in this dissent.