Commonwealth v. Klein , 42 Pa. Super. 66 ( 1910 )

Opinion by

Rice, P. J.,

The first four counts of the indictment under which the appellant was convicted charged, in the words of sec. 8 of the Act of May 23, 1874, P. L. 230, different phases of bribery therein defined, and the other two counts charged bribery at common law. One of the important questions discussed on this appeal arises upon the refusal of the court to charge that the proviso in sec. 49 of the Act of March 31, 1860, P. L. 382, was applicable to the case. We are of opinion that the point was properly refused. The first clause of sec. 48 of the act of 1860 declares it to be a misdemeanor to give or offer to give a bribe “in order to obtain or influence the vote, opinion, verdict, award, judgment, decree or behavior of any member of the general assembly, or any officer of this commonwealth, judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter .or thing whatsoever, depending or which shall depend before him or them.” The second clause of the same section declares it a misdemeanor on the part of “the member of assembly, officer” (evidently meaning the person described in the preceding clause as any officer of the commonwealth) “magistrate, juror, justice, referee or arbitrator, who shall accept or receive, or agree to accept or receive such bribe.” Section 49 declares that no witness shall be excused from testifying in any criminal proceeding, or in any investigation or inquiry before either house of the general assembly, or any committee thereof, “touching his knowledge of the aforesaid crimes,” (evidently meaning the crimes specifically defined in the preceding section), “under any pretense or allegation whatsoever; but the evidence so given, or the facts divulged by him, shall not be used against him in any prosecution under this act.” Then follows in the same section this proviso: “Provided, that the accused shall not be convicted on the testimony of an accomplice unless the same be corroborated by other evidence or the circumstances of the case.” The several phases of bribery defined in sec. 8 of the act of 1874 are of the same general nature as the misdemeanor defined in the second clause of sec. 48 of the act of 1860; but this section of the act of 1874 relates exclusively and specifically to acts committed by members of city councils, whereas persons holding that corporate office are not mentioned in secs. 48 or 49 of the act of 1860, and are not included in them, unless the words “ any officer of the commonwealth” be construed to have that effect. Moreover, the description of the offense or offenses included in sec. 8 of the act of 1874 is not identical in phraseology, nor in all particulars in substance, with that employed in the act of 1860, and the punishment is not the same. Again, sec. 8 of the act of 1874 contains no such proviso as that above quoted from the act of 1860, and the section concludes with the provision, which does not appear in secs. 48 or 49 of the act of 1860, that the person convicted, “shall be forever incapable of holding any place of profit or trust in this commonwealth.” The phraseology of the proviso in sec. 49 of the act of 1860, taken in connection with the main part of the section, clearly indicates that the words “the accused” relate to one indicted under sec. 48, and there is no indication in the act of 1874 of an intention to bring forward and make applicable to prosecutions brought under it the principle of that proviso. From this review, we think it must be apparent that the argument which sustained the construction, adopted in Com. v. Bell, 145 Pa. 374, whereby the general words “offense of bribery” in sec. 32, art. Ill, of the constitution were held to include all bribery, whether bribery at common law, or under the constitution itself or any kind of statutory bribery, are not available to sustain a construction of the words “the accused” in the proviso in sec. 49 of the act of 1860, which would include every person indicted for bribery, whether at common law or under subsequent statutes.

The next question to be considered arises upon the assignments specifying error in the refusal of the defendant’s second, third, fourth and fifth points. Before discussing these assignments it should be noticed that the learned trial judge did not overlook the subject to which those points relate, but in his general charge called the jury’s attention to the caution with which the testimony of an accomplice should be accepted and Tacted upon by them in the following terms: “Where the case rests upon the testimony of an accomplice, it is always best for a jury to receive the testimony of the accomplice with caution. If you believe the testimony of the accomplice, if you are satisfied of the absolute truthfulness of the testimony of an accomplice, you may convict upon that testimony without any other; but it is usually best to have the testimony of an accomplice corroborated in material facts, some parts, some material parts, that indicate its truthfulness. It is not essential that the entire testimony of the accomplice be corroborated, but if it be corroborated in material facts to such an extent as to satisfy you of its truthfulness, then you can convict, or you can convict if it is not corroborated, if you believe the testimony to be absolutely true. But I say that the usual rule is to receive an accomplice’s testimony with caution.” This portion of the charge is not assigned for error upon the ground of inadequacy or any other ground, and we do not allude to it for the purpose of discussing it, or of showing that it is the substantial equivalent of the instructions prayed for in the points, for it is not, but only to show that the subject was not overlooked. No common law rule forbids a conviction upon the uncorroborated testimony of ah accomplice, if his evidence satisfies the jury of the guilt of the accused beyond a reasonable doubt: Carroll v. Com., 84 Pa. 107; Hester v. Com., 85 Pa. 139; Kilrow v. Com., 89 Pa. 480; Watson v. Com., 95 Pa. 418; Ettinger v. Com., 98 Pa. 338; Cox. v. Com., 125 Pa. 94; Com. v. Craig, 19 Pa. Superior Ct. 81; Com. v. Sayars, 21 Pa. Superior Ct. 75. In Cox v. Com., supra, the trial judge charged that unless the jury found the testimony of the accomplice to be corroborated in a material part it would be their duty to acquit. Speaking of this instruction and of the general subject the Supreme Court by Paxson, C. J., said: “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 learned counsel for the defendant while conceding the general proposition above stated, vigorously insist that their client had a right to the unqualified affirmance of the principles of evidence set out in his points and that this was denied him. They argue that the defendant’s second point was drawn in the words of Watson v. Com., 95 Pa. 418, his third point in the words of Hester v. Com., 85 Pa. 139, and Carroll v. Com., 84 Pa. 107, and his fourth point in the words of Donnelly v. Com., 6 W. N. C. 104, and therefore that the trial judge in refusing these points virtually overruled decisions of the Supreme Court that were binding upon him. It is to be observed, however, that in all of these decisions it was distinctly declared or clearly implied that a jury may convict on the' uncorroborated testimony of an accomplice and that these points were so worded as to leave out of view, indeed to obscure this well-settled principle. An unqualified affirmance of the points, without any other instruction on the subject, would have tended to mislead the jury to the prejudice of the commonwealth quite as certainly as a bare instruction without more, that the jury could convict on the uncorroborated testimony of an accomplice, would have been inadequate for the protection of the defendant’s rights. It is to be observed further in regard to Watson v. Com., that the report of the case fails to show that any assignment raised the question of the correctness or the adequacy of the charge to the jury upon the weight to be given to the uncorroborated testimony of an accomplice. The language of the opinion in that case, to which allusion is made in the present argument, seems to relate to exceptions to the rulings upon evidence, and to the essentials necessary to be established in order to entitle evidence to be treated as corroborative. And with regard to the other three cases it is to be remarked that the overruling of the defendant’s assignments to the instructions given to the juries in those cases does not imply a ruling that the same instructions must be given in every other case where the testimony of an accomplice appears, if the defendant request it. While the generally accepted doctrine is that the court should instruct the jury that the testimony of an accomplice should be received and acted upon by them with caution, and while it is said in some of the text-books to be common practice for judges in their discretion to advise them not to convict where it is wholly uncorroborated, yet no set form of expression in which the jury must be instructed upon this subject has been prescribed: Com. v. Craig, 19 Pa. Superior Ct. 81. In judging of the adequacy of the instructions some regard must be had, not only to the fact that the testimony is given by an accomplice but to every other matter appearing in the case which may properly be taken into consideration by judge and jury in determining whether the testimony of a witness may be safely relied on or not, and particularly the'superior opportunity which the trial judge has to observe the appearance of the accomplice witness on the witness stand and his manner of testifying. To say that in every case, no matter how candid and straightforward the accomplice witness may be on the witness stand and how convincing may be his testimony, the judge must advise or admonish in terms which would be naturally construed by the jury as a binding direction upon a point of law is not warranted by the later decisions; and if we cannot say that, we cannot say that there was error in refusing to charge upon the subject in the language of these points.

The indictment alleged, inter alia, that the defendant, a councilman of the city of Pittsburg, solicited and received a bribe of $17,500 for his vote and influence in support of an ordinance or ordinances naming the German National Bank a city depository, and that he gave his vote and influence for that bribe. Proof of the pendency of such ordinance would certainly have been competent, and we cannot see that it was wholly irrelevant to show when and in what way or manner it was pending. The effect of the ruling complained of in the first assignment of error was simply to permit the commonwealth to show that it came up to be voted on on the date when it first passed, and again when it was passed over the mayor’s veto. The veto message was not admitted, but later in the trial the offer of it by the district attorney was distinctly and unequivocally rejected. Under the court’s ruling the fact of the veto could not be used for any illegitimate purpose.. As it was subsequently testified by Ramsey, one of the givers of the bribe, that the defendant declared councils would pass the ordinance over the veto, and as the defendant voted for the ordinance on both occasions, we are convinced that no error was committed in permitting the commonwealth to prove the passage of the ordinance over the mayor’s veto.

The second and third assignments of error may be considered together. W. W. Ramsey was vice president and A. A. Vilsack was cashier of the German National Bank, and were called and testified under compulsion as witnesses for the commonwealth. Ramsey testified to three interviews with the defendant, who was usually accompanied by Bolger in his visits to the bank, in which the subject of making the German National Bank one of the city depositories was discussed. After having stated that Bolger and Vilsack were present, and being asked by the district attorney to narrate the conversation at the last interview, he said: “Well, that conversation related to paying him $2,500 — or paying him $2,500 additional for obtaining the city deposits.” Again, speaking of the same interview he testified: “ I went over this thing with him about how he could do it and I wanted to know why this additional money was demanded.” He further testified, without objection, that a few days before this interview and the demand of $2,500, $15,000 were taken from the bank vault by Vilsack pursuant to an arrangement between him and Vilsack and by the latter handed to Bolger, but that he did not see the defendant at the bank at that time. The words “additional money” were not put into the witness’s mouth, but were first used by him without any suggestion from the district attorney and before the latter used them in his questions. Even in the absence of explanation of his meaning, the natural and irresistible inference which the jury would have drawn from his testimony was that in speaking of the $2,500 as additional money he meant that it was in addition to the $15,000 previously paid. Therefore we cannot see that any possible harm could have come to the defendant from admitting the following question and answer referred to in these assignments: “Q. What did you refer to as additional money? A. Well, we had already paid $15,000 out, and I referred to the $2,500 as why that was to be paid additionally.” But even if Iris reference to the $15,000 payment was incompetent, unless followed by evidence that the defendant was connected with it, abundant evidence to that effect was subsequently given by Vilsack. There are many cases in which the admission of testimony, which was incompetent at the time of its admission but which was rendered competent at a later stage of the trial, has been held not to be cause for reversal: Laird v. Campbell, 100 Pa. 159; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; Com. v. Mellet, 27 Pa. Superior Ct. 41. This is a proper case for applying the principle.

The fourth, fifth and sixth assignments raise the same question. Vilsack was under indictment for giving the bribe which the defendant was charged with accepting. He was called as a witness, but did not testify until after his claim of privilege not to be required to give evidence that would criminate him had been overruled by the court. No restriction was put upon his cross-examination for the purpose of ascertaining whether any inducement or promise or agreement, direct or indirect, had been held out to him or made. He could scarcely declare his expectation as to pleading to the indictment against him without declaring his intention. When pressed to answer the question, “Do you expect to be tried or to plead?” he answered, “It is all up to my attorney, Mr. Marrón; I will consult him about that.” The fair import of his answer was that he had counsel whom he would consult, and by whose advice he would be guided. Under the circumstances, this was as far as he ought to have been required to go in revealing what was his intention or expectation.

The ruling complained of in the seventh assignment of error needs no discussion. It shows on its face that the memorandum made by the witness immediately after his interviews with the defendant was one which the witness could properly be permitted to refer to upon the witness stand to refresh his memory as to what was said at those interviews, and that the use which the witness was permitted to make of it was confined strictly to that purpose. The court distinctly said he could not use it for the purpose of reading to the jury what he had written.

It is sufficient for purpose of discussion of the eighth and ninth assignments to say, that the witness, Wilson, testified in chief to the defendant’s admissions to him to the effect that Ramsey had paid him money in connection with the bank matter, and the defendant’s admissions as to the manner of payment. The fact was brought out on his cross-examination that Wilson was employed with others by the Voters’ League as a detective to investigate the matter of the selection by councils of banks to be depositories of city funds. lie was fully and vigorously cross-examined as to his previous occupation, as to work of similar kind he had been engaged in in Scranton, as to his connection with prosecutions for violation of liquor laws, as to the persons with whom he had consulted and under whom he had acted in the bank investigation, and as to his activity in that matter. Without going into greater detail it is enough to say that his interest in that matter generally, as well as in this particular prosecution, so far as showing interest to affect his credibility was concerned, could not have been made more clear if the court had permitted the question whether he had detectives following the defendant during the three or four weeks which preceded the trial. The rejection of this question was not prejudicial error. Nor was there reversible error in rejecting the offer to show on cross-examination that he claimed to have paid the defendant $500 for the purpose of influencing his conduct as a member of council. The fact that he had so claimed was not relevant to this inquiry or to anything to which he had testified in chief. The range of cross-examination as to collateral and irrelevant matters for the purpose of affecting the credibility of a witness rests largely in the discretion of a trial judge. There is no such manifest error in either of these rulings as to justify us in reversing the judgment.

In support of an offer to prove by E. G. Lang, the director of the department of public safety, “that in a conversation had with the defendant on or about one of the dates mentioned, the defendant' said that he was guilty all right of the charges against him, but that there were others jhst as guilty as he was, and that he did not intend to be made a goat of,” the witness testified, inter alia, as follows: “ Then I said, ‘ Captain, why do you men permit yourselves to get into a squabble like this bank affair, create all the worry and trouble? Does it pay?’ ‘Well,’ he said, ‘there are very few men like you in Council, Director.’ He said, ‘I am not innocent, but,’ he said, ‘there are a whole lot just as guilty as I am.’ ‘ Well,’ I said, ‘Captain, if that is the case, you are a-darn fool if you become a goat for any of them. I would just stand up and be fair and frank and honest, and tell what I knew.’ And he said, ‘ I don’t propose to be a goat for any person.’ ” It cannot be claimed that this was not competent testimony. It was received without objection, and we agree with the learned trial judge that it so closely corresponds to the offer that the defendant’s motion to strike it from the record ought not to have prevailed.

The offers to prove that the defendant did not solicit any member of council to vote in favor of the bank ordinances, to be followed by the testimony of the officers of the other banks named in the ordinances that these other banks had not paid any money for their selection as city depositories and that no money was offered by the defendant to the chairman of the finance committee or others in relation to the ordinances were properly rejected as irrelevant under the state of the evidence when the commonwealth closed its case. At that time the charge against the defendant as disclosed by the evidence was the acceptance of a bribe of $17,500 for his vote and influence in favor of the selection of the German National Bank as one of the depositories. To have gone into an investigation as to whether the other banks named as.depositories also paid money for that purpose would have opened up a very wide field, and we think the court was right in holding that that was an irrelevant matter. Though the indictment charged that the defendant had solicited and accepted the bribe for himself and for others the defendant was not called upon to meet the portion of the charge relating to others in the absence of testimony upon the part of the commonwealth sustaining it. Nor would the fact that the defendant did not solicit nor pay others to vote for the ordinances tend to show that he did not accept the bribe.

The specific objection urged against the question quoted in the fourteenth assignment was that in the question asked on cross-examination of defendant no date was fixed, and therefore the defendant’s answer could not be contradicted. The reason assigned in support' of this objection seems not to be well founded, for in the cross-examination of the defendant we find this question and answer: “Q. Do you remember on June 26, 1908, of throwing a $5,000 bill at him in payment of a little account that you owed him? A. No, sir; I remember throwing a $500 bill, which I later deposited.” Sufficient ground was laid for contradicting testimony.

The testimony of the commomyealth was to the effect that the $2,500 were paid on the evening or the evening before the passage of the ordinance, which was July 9, 1908, and that the $15,000 were paid a few days before. In answer to a question put to him on cross-examination, the defendant denied most emphatically that in July, 1908, he showed to one E. Frey six $5,000 bills, and he asserted that he did not have that much money at that time or at any other time on his person. He further testified that he carried large sums of money during June and July which he derived from his boating business. Frey testified in rebuttal that the defendant came to his place of business and thrusting what he thought at first was a green piece of paper into his hand, said: “That is the way I get it;” that he, Frey, unfolded it, looked at it very sharply and discovered that it was a new $5,000 bill; that he never saw one before, and wet his fingers to make sure it was not a counterfeit; that he made a remark of surprise to a friend standing near, whereupon the defendant said: “That is nothing,” and opened his coat and showed him five other $5,000 bills and other bills the denomination of which he did not know. The witness did not undertake to say what the amount of these bills of other denominations was. In surrebuttal, the defendant was permitted to testify that no such transaction as that related by Frey ever took place; that he did not have in his possession nor hand to Frey a $5,000 bill; that the bill he handed him was in payment for some straps and was a $500 bill, not green but yellow. Being asked by his counsel whether he had a quantity of bills of other denominations at the time he showed Frey the $500 bill he answered: “Yes, sir; I had a pay roll for the boats Saturday morning, I think it was.” Then came the offer to show that it was less than $2,000, the rejection of which offer is the subject of the fifteenth assignment. It will be seen from this tedious recital that the offered testimony would not have rebutted anything that Frey had testified to as to the defendant’s possession of bills of other denominations than $5,000. That he had a quantity of bills of other denominations was admitted by Frey. The question of fact squarely raised by Frey’s testimony was, whether the defendant had in his possession and showed to Frey $30,000 in bills of the denomination of $5,000 each. Upon that question, as well as to the source from which he derived the bills that he admittedly had, the defendant was permitted to testify fully. The jury would not have been aided in deciding the irreconcilable conflict between Frey and the defendant by the admission of the rejected offer.

We have now discussed in more or less detail all of the assignments, and find no reversible error in any of the rulings complained of. Upon a comprehensive review of the case as a whole we conclude that the defendant had a fair trial according to the forms and rules of law, and that the verdict of the jury is abundantly sustained by the evidence which they manifestly credited.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.