Commonwealth v. Cressnger , 193 Pa. 326 ( 1899 )

Opinion by

Mb. Justice Mitchell,

The assignments of error to the refusal of the court to quash the venire and the array of jurors are without substantial bearing on the only issue in the case, the guilt or innocence of the prisoner. They are purely technical, and technically the motions were too late. The irregularities on which the motions were based consisted in mistakes in the initials, the Christian names and the spelling of the surnames of five jurors in the panel of sixty. The identity of the persons whose names were put in the wheel with those who were drawn and summoned was not disputed. Even under these circumstances, however, the court guarded the prisoner from any possible disadvantage by sustaining his challenges for cause based on the misnomers, in every instance but one. In that one the juror was summoned and returned as Voris Metzgar, but testified on his voir dire that his right name was Verius, but that he was called Voris “by some people, not all of them.” This comes so clearly under the rule of idem sonans that it does not admit of discussion. These matters are referred to only to show that the court was more than careful to see that the prisoner should not suffer any practical disadvantage from the application of technical rules as to the time of the motions. As already said they were too late. The plea of not guilty is within the Act of March 31, 1860, P. L. 439, section 53, which makes pleading the general issue “ a waiver of all errors and defects in or relative or appertaining to the said precept, venire, drawing, summoning and returning of jurors,” as well as within the Act of February 21, 1814, 6 Smith’s Laws, 111, of which this section of the act of 1860 is a substantial re-enactment: Com. v. Freeman, 166 Pa. 332.

The objections to the special venire áre equally untenable. The regular panel having been exhausted without obtaining a jury, a special venire was ordered, and drawn in accordance with law. “ There is no ground therefore to support a distinction .... that, -under an order of talesmen, the venire must issue generally and not specially to summon the bystanders only, or specially for persons from the body of the county only. Under the Criminal Procedure Act the sheriff may summon the tales-man from either or both. The expression tales de circumstantibus was evidently intended to include both: ” Brown v. Com., 76 Pa. 319, 337.

The evidence of the confession made to Grimm was properly admitted. The fact that it was obtained by a trick is no objection to its competency unless the circumstances are such as to suggest an inference that through fear or hope a false confession may be made. There were no such circumstances in the present case, nor anything which required the judge to dwell particularly upon them in his charge. A knife was produced and the prisoner led to believe that it was his. Under this supposition he told where he had hidden his and then told the story of the murder. The object of evidence is to get at the truth, and a trick which has no tendency to produce a confession except one in accordance with the truth is always admissible. Society and the criminal are at war, and capture by surprise, or ambush, or masked batterj’- is as permissible in one case as in the other: Com. v. Goodwin, 186 Pa. 218; McClain v. Com., 110 Pa. 263, 269.

The assignments on the subject of insanity may be grouped under three heads, first, the admission of the testimony of witnesses not experts. These testified to their acquaintance and opportunities of observation of the prisoner, and were then asked whether from such acquaintance they had observed any indications of unsound mind. It is sufficient to refer to Com. v. Wireback, 190 Pa. 138, on this class of testimony. Secondly, one of the witnesses so testifying was a physician, and it is objected that the jury would be impressed with that fact in weighing his testimony. It would be quite proper that they should be. He was not called as an expert, nor did he testify as such, but as a neighbor who had employed and observed the prisoner. He was competent, and admitted on the same ground as the other class already considered, and his education and practice as a physician merely made it probable that his opinion was more valuable than that of ordinary observers. Thirdly, it is objected that the judge did not instruct the jury fully on the value of the expert testimony as to the insanity of the prisoner. There was nothing in the testimony that called upon him to do so. Only two experts were put on the stand, and while their testimony reads like a lecture on moral philosophy, it is wholly destitute of value in a court of justice. They agreed in calling the prisoner a “ degenerate ” and a “sexual pervert,” though the whole evidence in the case showed that sexual impulse had nothing to do with the killing, and sexual perversion was in no way relevant to the question at issue. Dr. Gear-hart testified that the prisoner was “ dull mentally ” and “ weak morally, .... would be easily controlled by his emotions instead of by his sense of right and wrong, .... has a very low appreciation of the value of human life, and the seriousness of taking human life, .... was not capable of careful reflection and due consideration and forming a deliberate intent to do an act of killing this girl.” This was as far as he would go, and he explicitly declined to say the prisoner was insane or irresponsible. Except the dull mentality, there probably never was a sane murderer of whom all this testimony might not be truthfully predicated. The other expert, Dr. Mayberry, testified to much the same effect, that the prisoner “ seemed to know it was wrong to kill, but in asking him why it was, his answer was because he would be punished if he did,”.... he was “ a moral pervert,” etc., but brought squarely to the question, “ Do you regard him as being insane ? ” answered, “No, sir, I do not.” This testimony taken in its broadest sense fell far below the standard required. There was no other on that side, and the judge would have been warranted in giving the jury a binding direction that there was no evidence on which they could find a verdict of not guilty by reason of insanity.

The alleged separation of the jury was one of those incidents that afe always guarded against, but cannot always be prevented. At the dismissal of the court, the jury in charge of two tipstaves, one in front and one in rear, passed out of the room by the same door and at the same time as the sheriff with some prisoners, and perhaps some other persons, spectators or members of the bar, and for a few moments all of them were somewhat intermingled while descending the stairs. The court on' the motion for a new trial carefully investigated the facts and found affirmatively that nothing was said to. or by any of the jurors during the occurrence. The assignment of it here as error is without merit.

The assignments to the charge upon the subject of premeditation and the refusal of the court to direct the jury that they could not find a verdict in the first degree do not require discussion.

Judgment affirmed and record remitted for purpose of execution according to law.