Commonwealth v. Bell , 4 Pa. Super. 187 ( 1897 )

Opinion by

Reeder, J.,

There can be no question of the right of the president judge of any court in any district of this commonwealth to call for the service of another judge of any court of common pleas of this commonwealth to try causes or to transact any business which may come before such courts at any regular or adjourned court or in vacation. The presumption is where no record is made that he was called in pursuance of, in conformity with, and for the purposes designated by, the several acts of assembly confering such powers upon the judges of the lower, courts. Hence the nunc pro tunc order made by the president judge of Lawrence county was unnecessary. That order was however made and indicates that Judge Miller was called to hold the court of quarter sessions of Lawrence county at which this case was tried because in Judge Wallace’s opinion the proper dispatch of the business of that court required it. The order indicates that he held this court by virtue of the Act of March 24,1887, P. L. 14. This act appellant argues is unconstitutional. He claims that as the constitution provides that as the election of judges is to be by the qualified electors of each district over which they are to preside, there is no authority in the legislature to delegate to any one the selection of a judge1 to hold court in a district in whose election the electors of that district had no voice. If this contention were sustained by us it would render nugatory every act of assembly upon our books of statutes relative to the holding of courts by judges in any district save their own; and in the event of disability because of illness or from any other cause would effectually stop the ‘ administration of the law through the courts until the recovery of the judge of the district from such inability. A result to be deplored. But yet if there is no power tinder the constitution to enact such legislation no matter what the result might be, it would be our duty to declare the law. This question was virtually determined by the Supreme Court of this state in Re Application of the Judges, 64 Pa. 83. The question there arose under the Act of April 2, 1860, P. L. 552, which provided that “In case of sickness of a president judge in any judicial district in Pennsylvania, or of sickness in his family or of his disability to hold the regular terms of his court in any county from any cause whatever it shall be lawful for him to call upon any other president judge of the commonwealth to hold said regular terms of court, and said president judge so called upon is hereby authorized and empowered to discharge the duties appertaining to said office as fully as the regularly commissioned president judge of said district could do if present,” etc. Justice Ag-new says: “Is this act within constitutional power? We think it is, whether the act be a reorganization or the creation of a new court for special purposes. If anything can be considered settled by judicial determination it is that another judge learned in the law can be substituted for the president of the court of oyer and terminer and general jail delivery under the power contained in the 3d section of the 5th article of the constitution. . . . The power to organize the courts differently has been considered clear. Hence the number of judges may be changed and associates learned in the law constituted with the same powers as the president. The only limitations are those contained in the 9th section of the 5th article of the constitution which is in these words: ‘ The judges of the court of common pleas in each district shall by virtue of ■their offices be justices of the oyer and terminer and general jail delivery for the trial of capital and other offenders therein; any two of said judges the president judge being one, shall be a quorum.’ But who the judges of the common pleas in the particular county shall be and who the particular president judge shall be who must be of the quorum will depend on the organization of the court of common pleas by the legislature. The constitution does not say that they shall be the judges for the county but the judges in the county. . . . But that the president judge of the common pleas is not unalterably the president judge of the particular county is clear, otherwise there would be no special court of common pleas to try causes in that county where the proper president is disqualified.” See also Zephon’s Case, 8 W. & S. 382; In re Pennsylvania Hall, 5 Pa. 204; Kilpatrick v. Commonwealth, 31 Pa. 198; Foust v. Commonwealth, 33 Pa. 338; Commonwealth v. Green, 58 Pa. 226. Article 5, section 9 omits the words “in the county” referred to in the above case and the limitation referred to by Justice Agnew has been eliminated from the constitution of 1874. These decisions are all under the constitution of 1838 and its several amendments. Has the constitution of 1874 any provision which bréales the force of these decisions of the Supreme Court under the earlier constitution? We think not. The same power is reserved to the legislature “ to create such other courts as they may from time to time deem necessary.” The provision in the constitution of 1874 “that the judges shall be elected by the qualified electors of the districts over which they shall preside ” is in effect the provision of the amendment of 1850 to. the constitution of 1838. I have for brevity spoken of the amendments of 1838 as the constitution. These amendments were before the Supreme Court when the constitutionality of those acts were considered by them in the cases I have just referred to, and those decisions are therefore conclusive upon that question.

It is also claimed that the court at which the defendant was convicted was held without legal authority and therefore the defendant was illegally and improperly convicted. The defendant claims that the act of June, 1881, is unconstitutional and second, it cannot properly be construed to extend a term of criminal court beyond one week. As to the latter part of the proposition we are clearly of the opinion that was the very purpose of the act and is clearly written within its terms. This is so manifest from a reading of the act as to require no discussion. The act is also clearly constitutional. The claim that the proviso excepting cities of the first class from its application renders the entire act unconstitutional because it is special legislation, is absolutely without merit. It is unnecessary for us to elaborate our opinion upon this question when the con stitution itself makes a special and distinct class of the courts of cities of the first class.

Was Daisy Kirker, the woman upon whom the defendant was convicted of committing an abortion a particeps criminis and was her testimony to be received with the same restrictions and caution as governs and controls the testimony of an accomplice ? We might well rest our discussion of this question upon the facts corroborating her testimony as sufficient to carry her testimony to the jury. The Supreme Court has repeatedly said that while it is not good practice to submit a case to the jury upon the uncorroborated testimony of an accomplice, yet when the court below does so it will not reverse for that reason. Here there was abundant evidence of corroboration so that it was the duty of the court to submit her testimony to the jury even though she was an accomplice? But was she an accomplice? We can find no decision in Pennsylvania of this question, but the decisions of all the other states where this question has been directly decided, is that she is not: People v. Com., 87 Ky. 487; State v. Pearce, 56 Minn. 226; Com. v. Wood, 77 Mass. 85; Com. v. Follansbee, 155 Mass. 274; People v. Vedder, 98 N. Y. 630; State v. Hyer, 39 N. J. L. 598. We are constrained to follow these decisions and decide that the testimony of Daisy Kirker was to be governed by the ordinary rules of evidence and not those of an accomplice in so far as they relate to corroboration.

This brings us to the first assignment of error in which we find much merit. After Mrs. Floyd Lawman was examined in chief the defendant proposed to ask her in cross-examination for the purpose of affecting her credibility or for the purpose of contradicting her if she answered negatively “ whether after the premature birth and before the commencement of the prosecution and while the fact of premature birth was known only to the witness Mrs. Wood, Daisy Kirker and Dr. Covert she in company with Mrs. Wood did not go to the office of Dr. Bell and together there demand of him $2,000 to settle this alleged crime, and then and there threaten to prosecute him or that he would be prosecuted if he did not pay; and also to further ask the witness whether in the same conversation they did not tell the defendant as . inducement to him to pay or settle the case that the fact of the miscarriage was known to themselves, their sister Daisy and Dr. Covert.” This offer was improperly refused by the learned judge of the court below. It was an inquiry going to the credibility of the witness. The motives, interest, feeling, prejudices and bias of a witness are all proper subjects of cross-examination and the testimony relating thereto should be submitted to the jury in connection with the testimony in order to enable them to determine what weight to give it. In Cameron v. Montgomery, 13 S. & R. 127, the Supreme Court says: “ A party against whom a witness is produced has a right to ask him everything which may in the slightest degree affect his credit.”

“ A party may always put such questions to a witness in cross-examination as tend to show his favor or bias toward the party calling him: ” Ott et al. v. Houghton, 30 Pa. 451. See also, Hopkinson v. Leeds, 78 Pa. 396; Fulton v. Bank, 92 Pa. 112.

“ Questions proper and relevant to show the capacity or intelligence of the witness are "admissible: ” Huoncker v. Merkey, 102 Pa. 462. See also Greenleaf on Ev., sections 446, 455 and 456.

The appellee declares that because the offer did not declare the purpose to show interest, hatred or ill-feeling, it does not fall within the ruling of the above cases. Proof of hatred, ill-feeling or malice are only admissible as it may affect the witnesses’ credibility. Proof of an attempt at blackmail in connection with the very case being tried on the part of a witness is surely proper to be submitted to a jury in connection with the witnesses’ testimony to enable the jury to determine tire witnesses’ credibility. We do not say that this offer was a complete offer to prove an attempt at blackmail, but it was sufficient to go to the jury as affecting the credibility they would give to her testimony. This is not a question collateral to the issue, it goes to the root of her testimony by having the testimony offered go. to the jury to have them determine whether or not under the circumstances she is worthy of credence. This assignment of error must therefore be sustained.

Judgment reversed and a venire facias de novo awarded.