Turner v. Commonwealth , 86 Pa. 54 ( 1878 )

Mr. Justice Gordon

delivered the opinion of the court,

The exceptions in this case are very numerous, and we must, as far as we can, classify and examine them in this manner. Naturally those exceptions which go to the jurisdiction of the court first claim our attention. It is alleged, firstly, that the indictment was found, and the defendant tried and sentenced, in a court unknown to the constitution and laws of this Commonwealth. This allegation is based on the fact that the record names the coutt as the “ Oyer and Terminer,” and omits “and General Gaol Delivery.” This, however, is exactly what is done in the eighth and ninth sections of the fifth article of the constitution of 1874, so that such a court cannot be said to be unknown to the constitution. The first of the above-named sections designates the criminal courts of Philadelphia and Allegheny counties as “ the Courts of Oyer and Terminer and Quarter Sessions of the Peacethe second connects the-term “General Gaol Delivery,” not with the Court of Oyer and Terminer, but rather with, as it immediately follows, the Quarter Sessions. This latter section is that which confers upon the judges the power to hear and determine all cases of a criminal character. Thus it comes to pass that our judges have, in a single commission, all the powers which the English judges derived from several. Indeed, as we learn from Blackstone’s Commentaries (vol. 4, p. 270), anciently it was the custom to issue separate writs of gaol delivery, called writs de bono et malo, for each case. This practice, being found to be attended with inconvenience, was in the course of time abolished, and instead thereof, a general commission was substituted for all prisoners triable at a particular term. This commission, unlike that of oyer and terminer, ran only to “try and deliver” prisoners in each separate gaol. (Id. 271, note.) The reason for this was, that as the commission of oyer and terminer only, empowered the judges to “ inquire and determine,” they could proceed under it only upon indictments found at the same term as that at which the several trials were heard, hence the necessity of an additional writ for the disposition of indictments and other cases previously found and instituted. Under our system this writ has no place; and it is obvious .that the name itself can have no legal significance, since it but imports a power which every judge possesses by virtue of his general commission. We conclude, therefore, that the omission of the words “general gaol delivery” was of no importance, and, had the attention of the court been called thereto, might have been supplied by amendment.

It is alleged, secondly, that the defendant was tried and sentenced by an additional law judge, who had no constitutional power to try pleas of murder in a “ double district.” The validity of the commission of Judge Orvis, who held the Court of Oyer and Terminer in which the defendant was convicted, is thus called in question. It is insisted that the Act of Assembly which authorizes the election of an additional law judge for the 25th district, composed of the counties of Clearfield, Centre and Clinton, was and is unconstitutional and void. This point is raised under the 5th section of the 5th article of the constitution. It will be observed that when, by this section, a county is to compose a separate district, provision is made for additional law judges ; but for single districts, formed of several counties, no such provision is made. The learned counsel for the defence regards this omission as significant. Not, indeed, because, without more, the legislature would not possess the power to create such judges, since it is conceded that such power must necessarily belong to that body if it be not in terms withheld, but because it is said the phrase “ single district,” as used in this section, means a district having but a single law judge. To prove this, reference is had to the debates in the convention. But if these prove anything, they prove too much for the argument which they are adduced to support, for they advocate districts with single judges, without regard to whether those districts were to be composed of one or several counties. As the idea was dropped as impracticable in single county districts, we may well suppose it was also abandoned as to those formed of several counties; for it is not reasonable to suppose that, whilst provision was being made for the possible wants of districts having populations of forty thousand, those having possibly double that number should have been wholly neglected. We are inclined to think that that- word “single,” directly connected as it is with the word “ district,” is to be regarded as a synonym of “ separate,” and as having been used to avoid tautology. If not, its use, in the connection in which it now stands, was unfortunate, for grammatically it qualifies and characterizes the judicial districts, and does not limit the number of judges.

The first and ninth assignments of error cannot be sustained. They relate to admissions of evidence and the charge of the court on the subject of the relations existing between Turner and Mrs. Waple. That adulterous intercourse may be proved as a circumstance leading to the commission of crime, is ruled in the case of Ferrigan v. Commonwealth, 8 Wright 386, and it would thus seem to follow that if the criminal conduct proposed to be proved becomes in any way a link in the chain of circumstances which connects the defendant with the crime.charged, it is admissible in evidence. That such circumstance is in its character criminal, and tends to exhibit another crime than the one charged, is no reason for its exclusion. It certainly does not follow that evidence, otherwise legitimate, should be excluded only because it tends to exhibit a character not accordant with an honest life. We need not say how important this testimony is to the case now in hearing, and how little there would be without it to connect the defendant with the offence charged ; it is enough to say that it is a legitimate part of the case, and that it was properly admitted. It is conceded that an independent crime, unconnected with the matter in trial, may not be put in evidence, for this is but proof of character, and that in its most objectionable shape; such, however, is not the case with the testimony under consideration. The criminal relation is but one of a series of facts connecting the defendant with the homicide, and a proper use was made thereof by the prosecution.

The second assignment covers nothing of importance. Turner’s voluntary declarations of innocence at the time of his arrest explained nothing in connection with that act; they' were purely gratuitous, and hence no part of the res gestee. The case of Rhodes v. Commonwealth, 12 Wright 396, is not in point, for in that case the circumstances of the search rendered explanation necessary, and therefore the declarations of the defendant became as much a part of the transaction as the search itself.

There is nothing in the third and fifth assignments. If it was deemed important by the defendant to prove that- Waple asked Quigley and Strickland to come into the house,' it was proper for the prosecution to ascertain why they were so asked, and what was said and done after they had complied with the invitation. The whole was one transaction, and could not be dissevered to suit the purposes of either party. In like manner, when the defence undertook to show Thomas Waple’s whereabouts at and about the time of the murder, and his animus towards the deceased, it was altogether proper for the Commonwealth to endeavor to rebut the presumptions arising from those facts; for, however concealed, their purpose could have been nothing less than to direct the attention of the jury to Thomas Waple as the real criminal.

The seventh, eighth, tenth, eleventh, thirteenth, seventeenth, eighteenth, twentieth, and twenty-first assignments are not sustained. In these the complaint is that the court permitted the jury to find a verdict against the prisoner upon a degree of proof less than that required by law in capital cases. We think this complaint not well founded. The evidence, if believed, was sufficient to warrant a conviction; and an examination of the charge shows that, in submitting that evidence, the court omitted no proper instruction. The. attention of the jury was called to the duty resting upon it of carefully and faithfully weighing and examining the evidence. That body was told that in order to work a conviction each material fact must have been satisfactorily proved, and if it remained in doubt, or if the defendant’s proof showed that it could not be true, it must not be regarded as a fact in the case. The learned judge further says, in answer to the defendant’s first point, “you must be satisfied beyond a reasonable doubt, first, that the murder was committed; second, that, this defendant was the guilty agent, or you would not be justified in finding a verdict of guilty.” Again, in answer to the fifth point, “we told you in our charge that the facts proved must be such as to exclude every reasonable hypothesis but that of the prisoner’s guilt.” Surely if the jury misunderstood this language it was no fault of the court; everything was said that the defendant had a right to require.

W e pass the twenty-fourth, twenty-fifth, and twenty-sixth assignments, with the remark, that we are not convinced that there is either anything wrong in the indictment, or that it was not proper for the grand jury to adopt the words “true bill,” as printed on the back thereof.

So far we agree with the rulings of the court below, but we must now advert to some particulars of this trial which compel us to dissent. And, first, it was improper to submit the general character of the witnesses to the jury without evidence touching such character. There is a very wide distinction between the personal character of a witness and the character of the evidence which he may give in a particular case. If the former be good, though the latter be impeached by facts and circumstaáces developed during the trial, yet the defects in such testimony may be accounted for by mistake or lack of memory, and whatever of it remains uncontradicted may be accepted without hesitation ; on the other hand, if the former be bad, corroboration must follow the evidence in all its material parts or it is worthless. This submission ivas erroneous in that it gave to the jury the power of testing evidence by that which could be found only outside of the trial itself, perhaps in the personal knowledge of some of the jurors. Perhaps this submission was inadvertent, and from its generality may have been harmless; nevertheless,, we have thought proper to advert to it in order that its repetition may be avoided.

A much more important error is found in the twelfth assignment. This covers the submission to the jury of the alleged attempt by the defendant to manufacture evidence. As was said by the court, “if it was proved that this defendant did so attempt to manufacture evidence that was false, it is a fact which you must consider.” The matter is thus put as an important element of the. case. Now if there was testimony to support this submission no fault could be found with it, but we have looked in vain for such testimony, though, in this, we have had the assistance of the able counsel for the Commonwealth. The evidence on this branch of the case is as follows: George Morgan testifies to Turner’s presence at the depot at Wallaceton, between two and three o’clock of the afternoon of the day of the murder. He says the defendant was in the office before the arrival of the freight train, and assisted him in checking his manifests. On cross-examination, he stated that at two or three times, or perhaps oftener, Turner had called his attention to this fact, and that, previous to these reminders on the part of Turner, he had not recollected the time. As, however, Morgan seems to have been a reputable witness, it would seem, that the defendant but called his attention to what was the truth, and thus, in a legitimate manner, obtained for himself an important piece of testimony. This act, unaccompanied as it was by anything, resembling an attempt to corrupt this witness, was altogether proper, unless, indeed, one accused of crime is to make no effort in the way of self-defence. Then, it is said, he was seen in close conversation with a witness named David Snyder, but what he said to Snyder, or Snyder to- him, is wholly unknown. Certainly nothing in the way of evil should be predicated of a matter such as this, unless the intent was to convict the defendant on bare suspicion.

Again, it is said, he contradicted John Rice; but John Rice does not allege that. Here is his testimony :—

Ques. Mr. Turner went to the jury inquisition ? Ans. He was there. Yes, sir. I told Martin that the old man had contradicted me. He says, “did I tell you this was Friday night?” I says, yes. He says, “I must have been mistaken, it was on Thursday.” Ques. He corrected you? Ans. No; he did not correct me. He said he had been down to John Stamer’s to see about the value of switch ties; he did not say he had been out hunting.

In this there is nothing which resembles a contradiction of the witness; on the contrary, his statement is taken for verity, and Turner says, “I must have been mistaken.”

Beyond what we have recited we discover nothing that tends, even remotely, to sustain the charge of an attempt, by the defendant, either to manufacture or to prevent evidence, and we cannot but pronounce as wrong the submission of such a question to the jury.

We must also take issue with the learned judge on the rule which he has announced as the governing one in a defence resting upon an alibi. He says (page 20 of the paper-book), “an alibi is a perfect defence when it is fully, clearly, and satisfactorily established, but the burden is upon the person asserting it to establish it.” And further on (page 23), “ If proved it constitutes a complete defence ; if not proved, and you think it has not been proved, the attempt to manufacture evidence is a circumstance which always bears against the person. No innocent person is driven to manufacture evidence.”

As an abstract proposition the first part of this instruction might be regarded as correct, for, in the first place, as is said in Briceland v. The Commonwealth, 24 P. F. Smith 463, per Agnew, J., when a defence rests upon proof of alibi, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the place of murder.

It thus necessarily follows, that if the evidence on this point is imperfect it comes to nothing. So, if the case of the Commonwealth rested upon positive and undoubted proofs, it might require like testimony to beget a reasonable doubt, and hence, less than full, clear, and satisfactory evidence would be worthless. The fault, however, with this instruction, in the present case, which is one depending wholly upon circumstantial evidence, is that, under it, if the testimony fails to reach a strength sufiicient to work an acquittal, it is in effect excluded from the case. This is a rule inadmissible in modern criminal jurisprudence; for proof of an alibi is as much a traverse of the crime charged as any other defence, and proof tending to establish it, though not clear, may, nevertheless, with other facts of the case, raise doubt enough to produce an acquittal. We are inclined to think with Mr. Greenleaf (Ev. vol. 1, sec. 81 b) that the true rule in criminal cases, notwithstanding some decisions to the contrary, is, that' the burden of proof never shifts, but rests upon the prosecution throughout, so that, in all cases, a conviction can be had only after the jury have been convinced, beyond a reasonable doubt, of the defendant’s guilt. From this it results, that, if from any, or from all the evidence taken together, a reasonable doubt of the defendant’s guilt is raised, there should be an acquittal.

The latter part of the instructions above cited is manifestly wrong in this, that the jury are told that the defendant, having undertaken to defend himself on the ground of alibi, must produce evidence sufficient to work his acquittal, or, if not, his failure is in itself evidence of guilt. This is adding a penalty to what maybe, not the defendant’s crime, but his misfortune — a result that we cannot sanction. Were the defendant detected in an attempt to corrupt witnesses, or to manufacture evidence, it would certainly weigh heavily against him, but his mere failure to prove a given point of his defence is no evidence of such attempt, and it 'ought not to have been submitted as such.

The sentence of the Court of Oyer and Terminer is reversed, and a new venire is ordered.