Campbell v. Commonwealth , 1877 Pa. LEXIS 148 ( 1877 )

Mr. Justice Sterrett

delivered the opinion of the court,

The plaintiff in error was jointly indicted with McGehan and Carroll in the short form, authorized by the Criminal Procedure Act, for the murder of John P. Jones, and when called for trial he moved to quash the array, for the reasons, 1. “ That it does not appear from the record that the jurors were selected by persons having authority to do so2. “ That the persons Avho selected the names which were put in the wheel from which the jury were to be drawn, made such selections without having been sworn according to law.” These allegations were traversed by the Commonwealth, and the onus of sustaining them, as to matters of fact, was on the prisoner. It was agreed that the testimony taken on a similar motion, in the case of the Commonwealth v. Michael Doyle, should be considered and treated as evidence in this case, so far as the same was competent and relevant. With this and other evidence before them, including the order of the Court of Common Pleas for the selection of persons to serve as jurors, the official oaths of the sheriff and jury commissioners, the venire, &c., the court overruled the motion; and in this it is alleged there was error.

It appears from the official oath filed in the prothonotary’s office on the 17th day of November 1875, that they -were duly sworn on that day, but it is contended that the oath was not taken until after they had commenced to select the persons whose names were to be placed in the wheel. The commissioners’ clerk testified that they met on the 16th, but no jurors were selected on that day; that after preparing the official oath and other papers they adjourned until the following day', when they met between eight and eleven o’clock, he thinks, and proceeded Avith the business. The testimony of Sheriff Breneiser was offered for the purpose of showing that the official oath Avas not administered until the afternoon of the 17th, but his recollection as to the time was someAvhat indistinct and uncertain. The jury commissioners, doubtless, could have given definite and satisfactory testimony as to whether they were sworn before' or after they actually selected some of the names, but they were not called. It appeared, hoAvever, that they commenced making-the tickets or ballots and placing them in a tin box, used for the purpose, on the 19th or 20th; and this may be fairly regarded as 'the final passing upon or selection of the names. After this Avas completed on tb e 20th, the names Avere taken from the box and placed in the jury wheel in presence of the sheriff.

The court, in passing upon the evidence before them, came to the conclusion that the allegations of fact in support of the motion were not sustained; and found that “ the jury commissioners were sworn before they selected the names and placed them in the Avheel.” The learned judge, after referring to the testimony of the sheriff and the clerk to the jury commissioners, says, “ Taking all that the sheriff says and all that Dinkey says as to the time of commencing -work and the manner of selecting the names, Ave are satisfied that no actual selection of names AA'as made until the oath Avas administered and subscribed, and that all that was done by the commissioners before the oath was administered and subscribed was but preliminary to selecting and placing the names in the wheel.”

With all the evidence, documentary and oral, before the court, the fact was found as here stated; and the testimony being addressed to the court, their finding as to matters of fact should not be disturbed, unless it appears to be manifestly wrong. An examination of the testimony, returned with the record, fails to satisfy us that there was any error, in the finding of the court, or in denying the motion to quash the array.

The refusal of the court to quash the indictment is also assigned for error. The reasons in support of the motion are, 1. “ That it does, not set forth the manner of the death of John P. Jones, or the means by which the killing was accomplished.” 2. “ That the names which were put into the wheel from which the grand jury was drawn, which found the present indictment against the prisoner, were selected by the jury commissioners before they were sworn.” The first reason is not sustained, but it may be considered in connection with the fifth assignment of error. The last reason corresponds with the second in support of the motion to quash the array and no further notice.

The third assignment of error is in permitting the Commonwealth to give evidence of the purposes,'practices and objects of a society called the “ Ancient Order of Hibernians,” or “ Molly Maguires.” A careful examination of the testimony fully satisfies us that the evidence complained of was necessary and proper to give the jury a full and fair understanding of the circumstances attending the murder of Jones, as claimed by the Commonwealth. The theory of the prosecution was that the deceased had become obnoxious to members of the division or association of which the prisoner was an active member, and that it was arranged by him and others that he should be killed; but it was considered unsafe for the offended parties or any of the men about the mines, of which Jones was superintendent, to undertake the work, for the reason that such a course would be more likely to lead to detection ; and it was therefore arranged that men for the purpose should be procured, through the instrumentality of the “ Molly Maguire” organization, from some division of the society whose members were unknown to Jones ; that, according to the regulations and practices of the order, such a mode of procedure was not unusual or extraordinary ; that such services were rendered “ on a trade,” as it was termed, by members of one division to those of another in return for similar services ; that in this way, through these instrumentalities, the defendant and others procured Doyle, Kelly and Kerrigan to enter upon the work of killing Jones, in the prosecution of which they were counselled and encouraged by him and those with whom he was jointly indicted.

Such, in substance, was the theory of the Commonwealth; and the learped judge instructed the jury that if the evidence satisfied them “ beyond a reasonable doubt that Alexander Campbell alone, or together with Carroll and McGehan, or either of them, did thus procure Doyle and Kelly, or either of them, to kill Jones, and Doyle and Kelly, in pursuance of that procurement, counselling or command on the part of Campbell, actually did kill Jones, then Campbell is equally guilty with Doyle and Kelly, or either of them, if but one struck the fatal blow'.” In considering the questions thus submitted to them, and especially whether the killing was by procurement of Campbell, it was very important that the jury should be fully informed of all the circumstances that would tend to explain his connection with the transaction, and the motives by which the parties to it were actuated. Without this it would have been difficult, if not impossible, for them to understand how Campbell was able to procure the assassination of Jones by young men who were entire strangers to him, and to whom personally he ■ had never given any cause of offence; what motive he had in doing so, and the reasons which influenced them in consenting to waylay and kill one who, so far as they were personally concerned, was an unoffending stranger. The evidence complained of tended to shed a flood of light on these and other mat-* ters, which without it would have been .dark and almost impenetrable. The circumstances of the case were indeed peculiar and extraordinary, and without proper explanatory testimony could not have been fully and fairly comprehended by the jury. As a general rule, every transaction can be best understood when viewed in the light of all the surrounding circumstances ; and this was especially true in this case. It was for these purposes that the evidence was admitted, and very properly so, we think. If the labyrinths of crime are not explored justice will be often defrauded.

It is claimed in the fourth assignment that the court erred in instructing the jury that if they believed that James McParlan was acting as a detective, he was not an accessory before the fact, although he counselled and encouraged the commission of the crime, if he intended to have its perpetrators arrested and punished. In the general charge, the court, after referring to the theory of the Commonwealth, as to the existence of a secret organization for the purpose of committing crime, and the right of the government in such cases to protect itself by employing detectives to enter the organization, expose its criminal acts ■ and bring the guilty to punishment, instructed the jury that if McParlan was employed as a detective, and joined the order “ for the purpose of ferreting out and exposing and bringing criminals to punishment, he was not an accessory or co-conspirator in the eye of the law,” so long as he honestly carried out the original purpose for which he entered the organization, and, although he may have encouraged and counselled parties who were about to commit crime, if, in so doing, his intention was that they should be discovered, arrested and punished.

The instruction thus given on this subject, and more fully explained in answer to several of the points submitted, is sustained by reason as well as authority. In The State v. McKean, 86 Iowa 343, it was held that a detective who enters into communication with criminals, without any felonious intent, but for the purpose of discovering and making known their secret designs and crimes, and acts throughout with this original purpose, is not to be regarded as an accomplice ; and that the question is one of fact for the jury. To the samé effect is 1 Greenleaf on Ev., sect. 382, in which it is stated that the rule as to accomplices does not apply to those who, under the direction of the public authorities,.continue “to act with their guilty confederates until the matter can be so far advanced and matured as to insure their conviction and punishmentand though a great degree of objection or disfavor may attach to such, they are not to be regarded as accomplices.

In view of the testimony before the jury, it was, properly left to them to say whether or not McPai’lan acted throughout in good fáith as a detective, with an eye single to the discovery and punishment of organized crime, and without any intention on his part of becoming, in any way, a party to the commission of crime. The instructions on this subject were so full, clear and carefully guarded that the jury could not fail to understand them ; and we discover in them no just ground of complaint. .

The fifth and last assignment of error is, “ instructing the jury that the defendant could be convicted under the indictment and evidence in the case.” It is claimed, that while the indictment charges Campbell, McGehan and Carroll with the murder, the evidence shows- that Doyle, Kelly and Kerrigan were present and concerned in its commission; that Jones was'shot by Doyle and Kelly, or one of them, and that neither of the three indicted were present, and therefore they were at most only accessories before the fact to the murder, and should have been so indicted; that by charging them as principals, the indictment furnished the defendant with no information whatever as to the nature and cause of the accusation against him; and it is thus claimed that the evidence did not sustain the indictment and that the court should have so instructed the jury. This position is not tenable under the Criminal Procedure Act, the 44th section of which provides, “ If any person shall become an accessory before the fact to any felony * * * such person may be indicted, tried and convicted and punished in all respects as if he were a principal felon.” As to the form of the indictment, the 20th section provides that, “ in any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased.”

Under these sections and the facts of the case, the indictment, in it» present form, was fully authorized, and the court committed no error in saying that, under it ánd the evidence, the defendant might be convicted if they found that he procured the murder of the deceased. The very language of the section, than which nothing can be plainer or more explicit, is, that the accessory may be indicted, tried and convicted and punished, in all respects, as if he were a principal felon.

The question of the sufficiency of the indictment, in the short form authorized by the code, was before this court in Cathcart v.Commonwealth, 1 Wright 108, and it was held to be good, and not in conflict with the constitutional guaranty that in all criminal. prosecutions the accused shall have a right to be informed of the “nature and cause of the accusation against him.” Mr. Justice Strong, in delivering the opinion of the court, says that “ an indictment must exhibit the nature and cause of the accusation, that it must set out the crime laid to the charge of the accused; but the mode in which the crime was committed, the instrument with which the murder was effected, whether it was held in the right hand or the left, whether the wound was inflicted on the head or the body, are entirely apart from the nature and cause of the accusation.” So it may be said of an indictment in which one, who in point of fact was strictly an accessory before the fact, is charged as a principal. It is not necessary to state the means or agency by which he accomplished the murder, whether it was done by his own hand or the hand of another employed-by him for the purpose. It is sufficient if the charge be stated with such certainty that he may know what he is called upon to answer. The defendant in this ease could not fail to know that the crime with which he was charged was the murder of John P. Jones; and whether he was present and actively participated in the commission of it, or was only present, encouraging and sustaining those who did commit it, or whether, being absent himself, he procured others to do the deed, he must have known that, in either case, he was amenable to the charge. If he had been an accessory at the fact, he would have been properly indicted as principal without the aid of the code, and the technical distinction between an accessory before the fact and an accessory at the fact, can make no difference, since the code now authorizes the former to be indicted, tried and punished as a principal.

In some of our sister states statutes in some respects similar to our own are in force. That of Illinois provides that an accessory, before the fact shall be deemed and considered a principal and punished accordingly. In Baxter v. The People, 2 Gilman 578, an accessory before the fact was charged in the indictment as a principal, and it was objected in his behalf that there was a variance between the proof and the allegations. The court remarked that this was true in one sense, just as it would be in an indictment for murder against an accessory at the fact; but it was held that the indictment was in proper form under the statute. In California, also, under the statute making an accessory before the fact a principal and providing that he may be punished accordingly, it was held that he should be indicted as though he had personally committed the offence: The People v. Davidson, 5 Cal. 134.

An examination of the whole case satisfies us that a fair and impartial trial was accorded to the prisoner; the case was submitted by the learned judge in a very clear and able charge and upon evidence which fully justified the jury in rendering a verdict of guilty, and nothing has been shown that would justify us in disturbing the judgment.

The judgment of the Court of Oyer and Terminer is affirmed, and it is ordered that the record be remitted for the pupose of carrying the sentence into execution.