Hester v. Commonwealth , 1878 Pa. LEXIS 236 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

At the argument here, no objection was made to the answers given to the points presented on the trial, or to the general charge of the court below. From a careful examination of the voluminous record that has been brought up, it is manifest that no effort was spared to secure an accurate and just result. The charge of the president of the Oyer and Terminer developed the whole cause in a perfectly satisfactory way. It was full, fair, temperate and unprejudiced ; the material facts were stated in their due proportions; and the instructions upon legal questions were so intelligent and so clear as to make their apprehension and application by the jury free from the chance of mistake or doubt. In relation to the general features of the case, there is nothing, therefore, that requires remark. Only the particular errors alleged to have been committed in the .progress of the trial are left for examination and review.

1. On the 11th of May 1869, Patrick Hester, on the motion of his counsel, was discharged from the prison of Columbia county, where he had been confined on a charge of complicity in the murder of Alexander W. Ilea. The indictment against him had been found at the February term of the Court of Oyer and Terminer, and when he was discharged, the May term, the second after his arrest and imprisonment, had expired. It began on Monday, the 3d of May, and closed on Saturday, the 8th, for an order had been made on the 10 th of February that it should be limited to a single week. Hester was discharged, therefore, three days after the day appointed for the expiration of the term. It was insisted on by his counsel that he was entitled, on the trial of this indictment, to the benefit of the provisions of the 57th section of the Act of the 31st of March 1860, declaring that if a prisoner “ shall not he indicted or tried at the second term, session or court after his or her commitment, unless the delay happen on the application or with the consent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment.” Under this provision, the proceeding in May 1869 was set up as a bar to any subsequent prosecution. The section quoted was a re-enactment in substance of the third section of the Act of the 18th of February 1785, under which a doubt was expressed in Clark v. The Commonwealth, 5 Casey 136, whether the plea of a discharge under the two-term rule, prescribed by the statute, would be available against a second indictment. But the facts presented do not call for an inquiry into the effect upon the after liability to arrest and punishment of a prisoner in whose behalf the statutory provision may have been applied. Here, the record did not show a discharge under the two-term rule. It appears from the court minutes that immediately before the motion was made, the district-attorney had asked leave to enter a nolle prosequi as to Hester — that the motion was allowed — and that the entry was made at once. The motion for the discharge was not grounded on the rule. From anything that the record shows, it could not be said that such a motion, if made, would not have been denied. When the nolle prosequi was entered without conditions, the right of the prisoner to his freedom accrued. The motion for his discharge was the assertion of the right thus created. The other proceedings of the court, as disclosed by the minutes, show that Hester, Thomas Donohue, John Duffy and Michael Prior were under joint indictment. A jury was empannelled in Duffy’s case, and after a trial, extending from the 3d to the 11th of May, a verdict of not guilty was rendered. A jury was then sworn as to Prior, and a formal verdict was taken on the 11th of May in his favor. The distinction made in disposing of the cases of the different prisoners proves that the district-attorney did not design to abandon all further prosecution of Hester. The effect of the entry of a nolle prosequi is fully settled as well in Pennsylvania as elsewhere. It was said by Black, C. J., in McFadden v. The Commonwealth, 11 Harris 12, that a prisoner charged with crime is not in jeopardy until the jury is empannelled and sworn. At common law, a nolle prosequi may at any time be retracted, and it not only is no bar to a subsequent prosecution on another indictment, but may be so far cancelled as to permit a revival of proceedings on the original bill: Commonwealth v. Wheeler, 2 Mass. 172; Commonwealth v. Miller, 2 Ash. 61. It will not have the effect of a retraxit even where a personal agreement has been made by the attorney-general "that it should be a bar: State v. Lopez, 19 Mo. 254. The cases collected in the notes to sects. 513, 514 and 515, of Wharton’s Criminal Law, fully support this doctrine. The record of the proceedings of the Columbia Oyer and Terminer, in May 1869, was conclusive as to the ground of the discharge, and ample authority justified the decision that the entry of the nolle prosequi was not a bar to this indictment.

2. Daniel Kelly, a confessed accomplice in the murder of Rea, was offered as a witness to fasten participation in the crime upon the prisoners. Objection was made to his testimony on the ground that he had been convicted of larceny in the Quarter Sessions of Schuylkill, and sentenced, on the 10th of September 1874, to separate and solitary confinement at labor for three years, and as this cause ■was tried in February 1877, within the period of the sentence prescribed, it was urged that he was incompétent. The objection was met by the production of a pardon granted by the governor on the 6th of January 1877. Against this it was alleged that the rules of the Board of Pardons had not been observed, and that the full sentence pf the Court of Quarter Sessions was not recited. The pardon was the act of the chief executive officer of the Commonwealth. It recited a recommendation, in writing, by the lieutenant-governor, the secretary of the Commonwealth, and the attorney-general. It set out the offence for which Kelly was tried and convicted, the date of the conviction and sentence, the amount of the fine, the direction to pay the costs of prosecution, and the term of the imprisonment. All that was omitted was the direction for the restoration of the property stolen or the payment of its value. Upon irregularities and omissions of form such as these, it was proposed that the judges of the Oyer and Terminer should set aside and annul the deliberate action of the governor taken in the execution of a constitutional power expressly conferred. There was no allegation that the pardon was obtained by fraud or false pretence. If there had been, it is possible that the principles announced by Chief Justice Lowbie, in Commonwealth v. Halloway, 8 Wright 210, might have required its investigation. With the evidence presented to them, the court were simply bound to accept the executive action as controlling and conclusive.

8. Kelly’s testimony was objected to for another reason. Ho had been convicted of highway robbery in Schuylkill county, and sentenced, on the 8th of September 1869, to imprisonment for two years. On the 7th of July 1871, he was discharged from custody, under the provisions of the Act of the 1st of May 1861. It was insisted that he was not competent to testify, because he had not complied with the terms of his sentence. Upon the production of the record of the conviction, it appeared that the trial had been in the Court of Quarter Sessions, and not in the Oyer and Terminer, of Schuylkill county. It was held that the proceedings resulting in the conviction and sentence were coram non judice, and the objection to the competency of the witness was overruled. There was no doubt in the proof of the facts on which the decision of the court was rested. While the indictment appeared to have been found in the Court of Oyer and Terminer, Quarter Sessions of the Peace and General Jail Delivery, at September sessions 1869, the record produced was entitled as in the Quarter Sessions alone. It was certified by the clerk, and authenticated by the seal of that court. Indeed, the parol testimony showed that no other seal for the use of the constitutional criminal courts of the county was in existence. There was presented the naked case of the record of a conviction in the Quarter Sessions for a crime triable only in the Oyer and Terminer. The whole proceeding was a nullity, and was properly disregarded. Dougherty v. The Commonwealth, 19 P. F. Smith 286, was a trial for homicide, where the prisoner had been arraigned, tried, convicted and sentenced in the Quarter Sessions. It was held by this court that the conviction and sentence were void for want of jurisdiction.

4. When the offer was made to prove the existence of the Ancient Order of Hibernians, and its objects and operation, the' court expressed the opinion that it wras “ on the very outer verge of any evidence” that had been given in the trials in which the character of the organization had been involved. It was admitted, however, so far as it related to facts existing in October 1868, but specific acts of others than those charged with complicity in the murder of Rea, committed either before or after that time, were excluded. Was this testimony irrelevant ? It was not designed to be used to establish the commission of any independent crime. Nor was its object to affect general character, or to repel inferences from adversary facts. Its purpose was to explain the relations existing between the conspiritors, the reason, motive and opportunity for their combined action, and the nature of the tie that bound them together. The reason for the exclusion of evidence of collateral facts is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them: 1 Greenleaf s Evidence, sect. 52. Here the offer was not to show what could accurately be called collateral facts. The testimony could affect nobody but the parties charged with this murder, and could illustrate or tend to the proof of no other crime. Ten men, including the three prisoners, met in Donohue’s saloon on the evening of the 16th of October 1868, and openly arranged the details of their plan to attack and rob Rea on the following day. Hester was the body-master of the Locust Gap division, and the nine others were members of the order. It was proposed to prove that, under its practical workings, the organization had come to be the means of procuring crimes of every grade to be perpetrated with comparative impunity; that protection of the perpetrators from arrest and punishment was afforded by secreting them, aiding their escape, and employing counsel and procuring false testimony for their defence; that from .the members of each division individuals were selected by the body-master to commit any offence he might require at their hands; and that the members were bound to comply with his requirements. In effect, it was proposed to prove that those ten men, as members of the Ancient Order of Hibernians, and under the relations they held to each other as individual Mollie Maguires, organized themselves as a gang of bandits to carry into effect, on the 17th of October, the plot deliberated and decided upon the night before for the assault and robbery which ended in the murder. Without regard to the merits of other cases in which this class of evidence has been received, it was clearly competent, to the extent to which it was admitted, under the circumstances presented here. The facts were relevant, direct and essential. Without them the conduct of the prisoners and their associates would 'be explicable on no recognised or rational theory regarding the motives and modes of human action. With them, a jury were enabled to understand how the brutal and cold-blooded consultation in Donohue’s saloon could have been had without concealment or reserve, and how a horrible murder could have been committed the next morning on a public highway in the open day.

5. Eor the same reasons that justified the admission of the general testimony, the question to Kelly complained of in the fifth assignment of error was warranted. It was certainly relevant to prove that the place where the men met was a common resort of members of the order. It afforded them means of communication and intercourse, and tended to explain the circumstances of the gathering at which the plan for the altack on Rea was arranged. Under this assignment, the question of the extent of the credit to which the testimony of Kelly as an accomplice was entitled, was discussed. The question was not properly raised. If it had been it would be necessary only to say that it was disposed of with entire accuracy in the answers to the points and in the general charge.

6. If, from the testimony of John Cannon in contradiction of Kelly, which the prisoners offered, any motives operating on Daniel Kelly’s mind, when his alleged declarations were made, that had relation to this cause or these prisoners, could have been inferred, its admission would have been required by the principle decided in Gaines v. The Commonwealth, 14 Wright 327. But the offer was not connected with the prisoners or either of them. The testimony could have had no effect except upon the general credibility of Kelly as a witness. Unconnected with the cause and with the parties as his answers on cross-examination had been, they were given in reference to collateral matter, and were not subject to contradiction. “ If a question is put to a witness which is collateral or irrelevant to the issue, his answ'er cannot be contradicted by the party who put the question, but it is conclusive against him:” 1 Greenleaf’s Ev., sect. 449. So much of the offer as proposed to prove Kelly’s declarations as connected with the murder was inadmissible, for as to those declarations, he had not been cross-examined.

7. On behalf of Hester, all the evidence of his conduct and declarations that could be at all legitimate, was permitted to be given. Declarations which form part of the res gestee may be proved: Kirby v. The State, 7 Yerger 259. And declarations of one party made in the presence and hearing of the other, are res gestee: McClenkan v. McMillan, 6 Barr 367. Evidence was permitted of what Hester said and did in November 1868, when he went west. The fact that he apprehended arrest on a charge of adultery and a charge of violating the laws of the United States against illicit distillation, W'as allowed to be shown. And his words and acts at the time of his arrest, including his statement that he had come to give himself up, were testified to by Lewis S. Parr and Jacob L. Girton. Statements made by himself to outside parties in Illinois and at his home in Locust Gap, could not be made evidence on any principle as res gestae.

8. When E. R. Ikeler’s testimony was offered it was admitted without exception. Lewis S. Parr had sworn to a conversation between Donohue and Hester in 1869. Evidence was given subsequently on behalf of the prisoners to discredit Parr’s statement. Mr. Ikeler, who was district-attorney in 1869, was called to testify that Parr had made the same statement to him before Hester’s discharge on the first indictment. The eighth error has been assigned for the refusal of a motion to strike out Ikeler’s testimony. It was ruled in Henderson v. Jones, 10 S. & R. 322, that where a witness is contradicted and evidence is given to impeach his character, evidence may be given of what he swore on a former trial of the cause in order to corroborate his testimony. “ A witness cannot be allowed, for the purpose of strengthening his testimony on his examination in chief, to state that he had previously communicated to others the same facts, but if it should become a material fact that the witness declared his knowledge to other persons, such persons may be called to prove it:” Daniel Dushore v. The Merchants’ Insurance Co., 11 Metc. 199. The same rule was laid down in Commonwealth v. Wilson, 1 Gray 337, and in Commonwealth v. Jenkins, 10 Gray 489. In the charge the jury were instructed that “the testimony of Mr. Ikeler, the district-attorney, is evidence only for the purpose of showing that Parr’s statement is not a fabrication of recent date, and not that the statement of Parr is true. That is for the jury to determine.” The refusal to strike out the evidence was justified by authority and proper instructions were given for its application.

9. John Traverse was called to prove that Kelly had robbed him. Kelly had denied that he had done so in his cross-examination. The testimony was objected to as irrelevant and immaterial. It had no connection with any question in this cause. For reasons stated in passing on the seventh assignment of error, the ruling of the court was right.

The judgment is affirmed and it is ordered that the record be remitted that the sentence of the Court of Oyer and Terminer may be carried into execution.