Cox v. Commonwealth , 125 Pa. 94 ( 1889 )

Opinion,

Mr. Chief Justice Paxson :

It was conceded upon the argument that juries may convict upon the uncorroborated testimony of an accomplice, and that when they do so convict the control of the verdict is with the trial judge, and is not reviewable here. Upon the trial below, the learned judge explained very clearly and emphatically to the jury the character of the testimony of an accomplice, and the danger of convicting upon such evidence unless it is corroborated by other uncontradicted testimony in the cause. By the defendant’s third point the court was asked to instruct the jury that: H Corroborating evidence must not only be as to the commission of the offence by somebody, but must also be a corroboration of the fact that Dr. Cox committed it; ” which point was answered as follows: “ I cannot affirm this point, but say to you that there must be a corroboration of the testimony of the witness in a material point.”

The defendant was a physician, residing in New Jersey, and was indicted and convicted of having produced an abortion on a young unmarried woman, in the borough of Easton. She also resided in New Jersey, and was brought to Easton for that purpose by one George B. Evans, a New York drummer with an unsavory record. It appears by his own sworn testimony, that to oblige a friend residing in Danbury, Connecticut — a man of about the same grade of humanity as himself, and whose intercourse with this unfortunate girl was the occasion of this dark story of crime — he brought her to Easton for the avowed purpose of procuring an abortion upon her, and thus conceal the crime and its fruits. Evans was jointly indicted with the defendant and some others, and upon the trial was called by the commonwealth as a witness. He was the accomplice referred to in the point. He testified to having engaged Dr. Cox to commit the offence; he brought the girl to Easton, lodged her at a hotel, and arranged the preliminaries. Just here he drops out of the case. He did not testify to the actual commission of the offence: the abortion was procured on the eleventh of February; at least such was the commonwealth’s theory, and the evidence strongly points that way, while the testimony is that Evans did not see the defendant between the thirteenth of January and that date.

The defendant was not, and could not have been convicted upon the testimony of Evans. Assuming it all to be true, it did not prove the actual commission of the offence. The corpus delicti was proved — at least to the satisfaction of the jury —upon independent testimony. It was entirely circumstantial; and, while the testimony of Evans, doubtless formed a portion of the bundle of sticks, which, when combined, proved too strong for the defendant, yet the fact remains, that he did not testify to the actual commission of the offence, and upon this point was not, and could not have been corroborated. As to the matters to which he did testify, he was contradicted in some matters, and corroborated in others. One of the strong points of corroboration was the testimony as to the nurse. That the defendant engaged her to come to Easton was not denied. For what purpose was a nurse procured for a healthy young woman unless an abortion was contemplated? The sufficiency of the evidence of the actual perpetration of the offence is not before us, and we will not comment upon it further than to say that while purely circumstantial it certainly did point to the defendant with considerable force. All this was fairly left to the jury, and we see no error in the instructions of the court. The point referred to did not fit the facts of the case, and for this reason we have not discussed the authorities cited.

The second and third assignments contain respectively a brief extract from the charge of the court. We do not find error in either, whether we treat them as isolated passages or in their proper connection with the charge as a whole. The first (second assignment) was a mere direction to the jury that in weighing the facts of the case they should ascertain whether they corroborate the testimony of the witness Evans “ in any material particular;” while in the other portion (third assignment) the learned judge went beyond the law, in favor of the defendant. He said: “ I leave the question to you as to corroboration, simply saying as I have said to you before, that unless the testimony of Evans is corroborated in a material part, it would be your duty to return a verdict in favor of the defendant.” This, as before remarked, was more favorable to the defendant than he was entitled to, and it is now referred to, not as essential to the determination of the case, but merely to prevent misapprehension in the future. The learned judge below did his full duty, under all the authorities, in cautioning the jury as to the danger of convicting upon the uncorroborated evidence of an accomplice. He was not bound to instruct them to acquit in the absence of corroboration. A jury may believe an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant’s guilt, beyond a reasonable doubt, they may convict. If the testimony of the accomplice, his manner of testifying, his appearance upon the witness stand, impress a jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction. In such case it is for the trial judge who also heard the witness, noticed his manner and appearance upon the stand, and who can judge equally with the jury as to his credibility, to say whether he is satisfied with the verdict. If both the jury and the court are satisfied that he has told the truth, there is no reason why the verdict should not stand. If we lay down an inflexible rule in regard to corroboration, there may be instances- when criminals will escape although both jury and court are satisfied beyond a reasonable doubt of their guilt.

The judgment is affirmed, and it is now ordered that the plaintiff in error surrender himself forthwith to the custody of the jailer of the Northampton County Prison, there to serve the remainder of his sentence which had not expired when the writ of error issued.