Commonwealth v. Nicely , 130 Pa. 261 ( 1889 )

Opinion,

Mb. Chief Justice Paxson :

But few of the numerous specifications of error in this case require notice; none of them needs extended discussion.

The defendants below were indicted for homicide, and were convicted of murder in the first degree. At the trial of the cause the district attorney appears to have been aided by private counsel, and the defendants complain that in many instances things were said by counsel for the commonwealth, either directly to the jury or in their presence and hearing, which were not warranted by the evidence, or which were unfair comments upon it. While the matter has been brought upon the record by exceptions, we have only isolated" passages extracted from the remarks of counsel, generally three or four lines; and we can but imperfectly judge of their character and propriety, nor can we tell how they may have been qualified by what preceded or followed them. I am not aware of any way by which' the speeches of counsel can legally be placed on the record, nor do I well see how the judgment of the court could be reversed by reason of their remarks. I would regard any system of practice by which error could be assigned to the summing up of counsel as a very great calamity. In the instances complained of, the record shows that whenever the attention of the court was called to them the learned judge treated them as harmless, and directed the jury to pay no regard to them. As an illustration, I refer to the eighth specification. It is as follows:

8. The court erred in its answer to the second exception of defendants to the remarks of the counsel for the commonwealth to the jury, which said exception and answer are as follows:

“ This trial will go very far to show whether every merchant or mechanic is to be safe from masked villains.”

By the court: This flight of oratory must not have any effect upon the jury.

I also refer to the thirteenth specification:

18. The court erred in its answer to the thirty-fifth exception of defendants to the remarks of the counsel for the commonwealth to the jury, which said exception and answer are as follows:

“ There has been false swearing on one side or the other of this case. When you have found out on which side the false swearing has been done, you will have banished the last shade of the • last glimmer of the last shadow of a doubt.”

By the court: Mr. Cessna always makes that remark in criminal cases. In view of remarks made by adverse counsel, this needs no correction. We doubt if it could have affected the jury one way or another.

These are fair examples of this class of specifications. While they do not furnish any legal grounds for the reversal of the judgment, they are suggestive of a heated zeal on the part of counsel engaged on either side in the trial of the cause. It is difficult to measure the amount of zeal which is allowable, or at least excusable, on the part of counsel engaged in the defence of a man who is upon trial for his life. Writers upon professional ethics differ upon this subject, and I will not discuss it. We have no difficulty, however, in measuring the extent of zeal which counsel for the commonwealth may properly display upon such occasions. The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial officer, but becomes a heated partisan. When that officer allows private counsel to assist him in the trial of a cause, such counsel represents him to that extent, and should be governed by the same rules of propriety.

Upon the argument of this case at bar, much stress was laid upon the second specification, which alleges that the court below erred in excluding the cross-examination of Ella Menoher in regard to the pocket-book. To understand this point, it is necessary to state that when the deceased, Herman Umberger, was murdered in his own house, on the evening of February 27, 1889, two pocket-books were taken from his person, containing upwards of $16,000 in money. The commonwealth had offered evidence to prove that David Nicely, one of the defendants, had, on the day of his arrest, while being conveyed to Somerset county, and when no one else was present, given a pocketbook to William Thomas, the driver of the carriage; that Thomas gave the same pocket-book to Nicely’s brother-in-law, Menoher; that Menoher had given the same pocket-book to his wife, a sister of defendants, the witness on the stand. The latter testified that her husband gave her a pocket-book after the defendants were arrested; that she laid it upon a table; that her mother gave it to the officers; and that it was the same pocket-book she had received from her husband. At this point the defendants’ counsel interposed the cross-examination referred to, the object of which was to interrogate the witness as to the identity of the pocket-book. But the commonwealth had not asked her a question as to its identity. They did not call her for any such purpose. On the contrary, she was only asked to trace the book; in other words, to show that the book which was given to the officers in her presence was the same book which she had received from her husband. The commonwealth expected to prove the identity of the book by independent evidence. The witness on the stand was a sister of the defendants, and the commonwealth very properly declined to allow the defendants to inject their defence into the case at this stage by a witness who might fairly be presumed to be favorable to the defence, but which the commonwealth was compelled to call. The court below committed no error in holding that this was not proper cross-examination. The pocket-book was sufficiently identified as the property of the deceased, and was properly admitted in evidence.

It was also alleged that the court below erred in receiving and recording the verdict. What occurred in regard to this matter may be briefly stated as follows : The jury came in with a verdict of “ guilty in manner and form as they stand indicted.” In this there was no finding of the degree of murder, as required by the act of assembly. Before the verdict was actually recorded, and before the jury had left the box, the court sent them back to*their room, with instructions to .find the degree. They returned into court, and rendered a verdict of “ guilty of murder in the first degree.” Upon being polled, each juror rendered the same verdict, which was then duly recorded, and the jury discharged. We see no error in this. The verdict as first returned was not a compliance with the act of assembly, and the learned judge was entirely right in sending the jury back to amend it. He would have failed in his duty, had he not done so. The allegation that there was nothing to amend by is plausible, but unsound. There was the act of assembly to amend it by. Had the verdict been recorded, and the jury discharged when they first came in, we would have had a different question before us. We might in such case be constrained to hold, under the authority of Johnson v. Commonwealth, 24 Pa. 386, that the verdict as originally rendered was a verdict of guilty of murder in the second degree only. But there is neither reason nor authority for holding that, where a jury comes in with a defective verdict, the court may not send them Cut again to amend it. Authorities are abundant upon this point, but it would be a waste of time to cite them. The time has gone by for a convicted murderer to escape upon such a bald technicality. This harmless blunder of a perhaps inexperienced jury did the defendants no injury. There was a time in the history of the English criminal law when great crimes were left unpunished, because of harmless, technical errors. This greater strictness was perhaps due to the fact that at that period the criminal code was especially bloody. Capital punishment was inflicted for very trifling of-fences ; and, it may be, the judges sought to ameliorate its rigor by holding the crown to the observance of the nicest technicalities. We all know that Lord Hale deplored these legal niceties — or quibbles, we may rather call them — as tending to allow many rogues to escape from punishment for serious crimes. With the advancement of judicial science, and a more enlightened administration of the law, mere technicalities are less regarded, where they work no harm to a defendant.

We have carefully examined all of the remaining assignments and find no error.

The judgment is affirmed ; and it is ordered that the record be remitted to the court below, for the purposes of execution.