Howser v. Commonwealth , 51 Pa. 332 ( 1866 )

The opinion of the court was delivered, by

Woodward, C. J.

— Polly Paul, an elderly maiden lady, who was reputed to possess money, and Cassy Munday, a young girl who lived with her, were both cruelly murdered on the evening of the 7th June 1865, in Summerhill township, Cambria county. The plaintiffs in error were defendants below,in an indictment which charged only the murder of Miss Paul, and after a full and careful trial were both convicted of murder in the first degree. The evidence was circumstantial. A great number of independent and connected facts were proved, and were so placed before the jury by the learned judge who presided at the trial that no exception was taken to his charge, and consequently no question arises out of his instructions to the jury for our consideration upon this writ of error. But several bills of exception to evidence were sealed, and these are assigned for error. Although the evidence as a whole chain led irresistibly to the conclusion of guilt, yet, if any material link of it was defective, and such as ought to have been rejected, the prisoners have good right to complain in this court. Let us, therefore, carefully examine the errors assigned, to see if any of them are well founded.

The first and ninth errors complain of the admission of John Buck and George W. Kerby, two of the jurors in the box, as witnesses on the part of the Commonwealth. In respect to the first of these witnesses, it might be sufficient to say that the objection was not made until after he was sworn as a witness, when it was too late to object to his competency, and in respect of both it might be said that they were called to incidental and comparatively immaterial points, that did not touch the corpus delicti; but, waiving these answers, let it be distinctly said that jurors are not incompetent witnesses in either criminal or civil issues. They have no interest that disqualifies, and there is no rule of public policy that excludes them. On the contrary, it has been our immemorial practice to examine jurors as witnesses when called by either party. It is sanctioned by Archbold (see vol. 1 of Evidence, p. 151) ; was recognised in principle by us in Plank Road v. Thomas, 8 Harris 92, where a viewer was held to be competent; and is regulated by the 158th section of the Act of Assembly of the 14th of April 1834, relating to jurors, Purd. 586, which requires every juror impannelled in any cause to disclose his knowledge of anything relative to the matter in controversy in open court, before the jury retires to make a verdict.

The learned counsel argue that the practice violates the constitutional rights of the accused, who are entitled to a speedy and public trial by an impartial jury, and to be confronted with the witnesses. Our law takes the utmost care to secure to the accused, in capital cases, an impartial jury — it almost allows prisoners 'to select their own triers. They may examine jurors as to their knowledge of circumstances, their expressions, opinions or prejudices, and challenge as many as they can show cause for, and may challenge twenty without showing cause, and then if any juror happens to have knowledge of any pertinent fact, he is bound to disclose it in time for the accused to cross-examine him, and to explain or contradict his testimony. If this be not a fulfilling of the constitutional injunction in behalf of impartial juries, it would be difficult to invent a plan that would fulfil it and at the same time be consistent with the demands of public justice.

But counsel imagine that the constitutional right to confront witnesses would be abridged in the instances of witnesses taken from the jury-box, because their truth and veracity could not be attacked without damage to the attacking party. As to material witnesses, those, we mean, upon whose testimony the event is essentially dependent, we think they ought not to be admitted into the jury-box, and we believe the general practice is to exclude them where the fact is discovered in time; but we do not think the constitutional provision alluded to, nor any rule of law, is violated by the examination of a juror as a witness. The a priori presumption is that he is a man of truth and veracity or he would not have been summoned as a juror ; and confronting witnesses does not mean impeaching their character, but means cross-examination in the presence of the accused.

When the common law of England was transported to these colonies, it gave a person charged with a capital crime no eompulsory process to obtain witnesses, and entitled him to no examination by himself or his counsel of witnesses brought against him. As Queen Mary said to her chief justice, Sir Richard Morgan, “ it did not admit any witness to speak, or- any other matter to be heard in favour of the adversary, her majesty being party.” To remedy this state of the law, our constitutions all declared, what statutes had then provided in England, that the accused should have an impartial trial by jury, should have process for witnesses, and be entitled to counsel to examine them, and to cross-examine those for the prosecution in the presence of (confronting) the accused.

And this is now our inflexible rule. I have known one ease in which a great question was made, whether a magistrate’s written examination of a prisoner, who afterwards broke jail and escaped, was evidence against a confederate under the provisions of the statute of 2 & 3 Philip and Mary, c. 10. The case did not reach this court, though the opinions of some of the then judges were taken, and it was finally decided that, notwithstanding the above-named statute had been extended to Pennsylvania, it was displaced by our constitution, and that no ex parte testimony could be given against a prisoner in a capital case.

Such, then, is the meaning of the constitutional provision which, counsel invoke ; and it is impossible to apply it to exclude a juror-witness. He,-like all other witnesses, must “ confront” the accused, that is, be examined in the presence of the accused, and be subject to cross-examination; but he is not disqualified to be a witness.

It became necessary for the Commonwealth to show, in the course of the trial, that the prisoners had been in the Western Penitentiary, and in intercourse Avith other prisoners there, and particularly one Philip Eolgert, a convict sent from Cambria county, and from whom the' prisoners heard of Miss Paul — the ■theory of the prosecution being that the prisoners had plotted the robbery and murder of Miss Paul AYhilst in prison, and that they proceeded to execute the plot as soon after their enlargement •as circumstances permitted. Sheriff Ruck, who took Eolgert to .the penitentiary, Avas called to prove that faci, and David Mc-Kelvy proved that the defendants had been in the penitentiary, ,and fixed the time of their discharge.

This testimony was objected to, and forms the basis of the second and fourth assignments, because the Avarden of the penitentiary is required by the Act of Assembly of April 23d 1829, Purd. 651, to keep a journal in AYhich the reception and discharge ■of prisoners is regularly entered, and that record, it is argued', AYas the best evidence of the facts to which these witnesses swore.

The Act of Assembly does not make the warden’s journal a record, nor declare that it shall be evidence of the facts therein ■entered. The main purpose of keeping it is to inform the inspectors of the prison of the name, age, condition and circumstances of each prisoner, that their duties may he intelligently performed. If the question had been whether Folgert and these defendants had been legally incarcerated, it might have been necessary to show every formality prescribed by law, but the main point was the conspiracy to rob and murder, and the fact of their being together in the penitentiary was only incidental or introductory to that point. Says Mr. Greenleaf, vol. 1, pi. 68, where the record or document appointed by the law is not.a part of the fact to be proved, but is merely a collateral or subsequent memorial of the fact, such as the registry of marriages, births and the like, it has not an exclusive character, but any other legal proof is admitted. If the marriage or birth of the prisoners had been wanted as introductory to evidence of the crime charged, it would scarcely be argued that a witness, who was present at the birth or marriage, was incompetent to prove it, because a registry existed. In questions of identity, records and registries are not the best evidence, for after the entries in them are received it is necessary to individuate the persons mentioned, and this must be done by evidence dehors the document. We have an illustration in the third error assigned, which complains of the admission of the record of Folgert’s conviction and sentence without identification of his person. We do not mean to say that we consider the third assignment any better than the second and fourth, but simply that it illustrates the necessity to add, even to a judicial record, oral evidence of identification.

The record proved Folgert’s conviction and sentence, and Sheriff Buck identified him as the individual he took to the penitentiary, whilst McKelvy identified the defendants on trial as inmates of the prison. We cannot be persuaded that there was any error in submitting such evidence to the jury.

The fifth assignment relates to the witness William McCreary. When this individual was called by the Commonwealth he stated in answer to questions by the prisoner's counsel, that he had recently got out of the penitentiary where he had been Gonfined on a conviction for burglary; that he had been in before on a similar charge and had been pardoned, and that the pardon was in Washington county. The counsel for the Commonwealth then exhibited an executive pardon for the last offence, and the court admitted the witness. This is assigned for the fifth error.

If the pardon exhibited did not cover the first as well as the last conviction (of which we cannot judge, for the pardon is not shown to us),-the fact that he had been pardoned for the first offence 'was elicited by .the examination of the defendant’s counsel, and it is not for the defendants to object that the fact was improperly proved. Both pardons were sufficiently proved to justify the court’s admission of the witness.

And we think there was nothing in the testimony of this witness on which to ground the seventh and eighth assignments of error. He was permitted to explain the situation and relations of the cells, and the arrangements made of prisoners, to show what opportunities he possessed of acquiring knowledge of the facts he detailed.

And when he was recalled he was permitted to detail what occurred when Messrs. Noon and Johnson visited him in his cell; that he showed them how communications between adjoining cells could be made; and he was permitted also to testify that no promise of a pardon or other inducement had been held out to him to testify in this case. All this was objected to because it tended to corroborate the witness when no attempt had been made to impeach him, and the question about pardon compelled the witness to discredit himself or commit perjury, if such promise had been held out. Though not formally impeached, this witness, as a pardoned convict, testified necessarily under circumstances that tended strongly to discredit him. The jury would inevitably regard his testimony with suspicion. It was very proper, therefore, to corroborate him, and surely if he could demonstrate to his visitors that communication between cells was possible, he had a right to prove the fact in corroboration of his statement that such communications had actually taken place. And he was entitled also to the fact that no inducement had been held out to him to testify against the defendants. These were rights of the witness, and he was in circumstances to justify his claim of them, and the court’s concession of them.

The conversations of prisoners among themselves about “ points” to be made when they get out, is not the most satisfactory kind of evidence, especially when proved by only one of their number, pardoned for the purpose of being made a witness ; but the credibility of this witness was fairly submitted to the jury, and there were many circumstances in proof by other witnesses that tended strongly to corroborate him. True, his testimony was most damaging to the defendants, if believed, but the Commonwealth was entitled to lay it before the jury, and it is not for us to doubt that the jury scanned it closely, and gave it no more weight than was due to it.

The sixth error is founded' on the declarations of Mary Stipoliski, made to her parents the evening of the murder. This little girl had been sent out, at nightfall, to fetch home the cows, and when she came home she told her parents what she saw and heard, and that she thought the men she saw at Polly Paul’s were not the right kind of persons.

In itself considered, this evidence was of little importance, for it did not lead even to an early discovery of the murder. Nobody seems to have attended to the girl’s story, and it might be considered irrelevant and harmless evidence, if subsequent discoveries had not shown that these defendants were prowling about the neighbourhood, and were the very two men the little girl saw at Miss Paul’s. The fact that she saw men there, and heard sounds of distress, was competent and relevant, and it was rendered no less so by the additional fact that she told it to her parents directly she returned home. This circumstance she had a right to refer to as refreshing her memory. And what her parents said in reply was also a circumstance to refresh her memory. The damaging part of this evidence does not consist in the narrative that burst from the lips of this little girl on her return home, much less in the responses of the parents, but it consists in the facts themselves, facts to which she swore on the trial, and which interweave themselves with facts furnished by other witnesses, in such manner as to form what the jury considered a web of guilt.

The facts, that is, what she saw and heard, are not objected to as improper.evidence, but only her relation of them to her parents and their replies. Ordinarily, declarations of third parties in the absence of the accused are not evidence, but these declarations were so connected with the circumstances as to become a part of them, or if they cannot be so considered, they were immaterial and harmless, and therefore afford no ground for reversing.

The tenth assignment relates to the administration account of the estate of the deceased. It was a public record, and, we think, properly admitted. It is usual to prove the circumstances of the decedent’s estate, when the murder is committed lucri oausd, and the administration account is the best possible evidence of what personal estate was possessed. If it failed to show a personal estate which other evidence proved to have belonged to the deceased, and the Commonwealth was thus enabled to furnish the jury with an inference of robbery, it was an inference to which the Commonwealth was entitled. A lone woman, shown to have had money, is foully murdered, and her administrator finds no money to administer. When men are on trial for the murder who spoke of making “ a point” to rob her, and if necessary to murder her, and who spoke also of the “ pile” they expected to obtain, we think it was competent to show by the public records that her personal representative found no money.

As to the overruling of the motion for a new trial, it is not a proper subject for an assignment of error. The discretion of the court is not reviewable here. Nor is the complaint that the court misapplied its own rule of practice a matter of which we can take notice. The rule is prescribed by the court itself to regulate its own discretion, and the refusal to grant a new trial is an exercise of discretion with which we cannot interfere, whether it conformed to the rule of court or disregarded it.

We have thus gone carefully through the several errors assigned upon this record, and finding no one that would justify us in reversing the judgment, it must stand affirmed.