Commonwealth v. Wilson , 186 Pa. 1 ( 1898 )

Opinion by

Mr. Justice Williams,

The defendant, Frank Wilson, was indicted jointly with James Farrell and William Doran for the murder of Henry Bonnecke. He was separately tried, and convicted of murder of the first degree. A new trial was then applied for, which the court below refused, and the defendant has removed the record of his trial and conviction into this Court by appeal. Twenty-four errors are assigned to the rulings of the learned judge upon the trial, but the questions raised by them are reducible to six. The first of these is raised by the assignments which relate to the admission of the testimony of Joseph Peddicord, the subsequent refusal to strike it out, or withdraw it from the jury, and the treatment of this testimony by the learned judge in his charge to the jury.

When Peddicord was called to the witness stand the defendant’s counsel asked for an offer showing what it was proposed to prove by him. An offer was then submitted as follows: “ The prosecution proposes to prove by the witness that Frank Wilson, the defendant on trial, and James Farrell and William Doran, who are jointly indicted, and Joseph Peddicord, the witness, did in 1894 and at divers times prior to the time of the murder of Henry Bonnecke, plan, conspire and agree together and among themselves, to rob Henry Bonnecke; and in pursuance of said conspiracy James Farrell and Joseph Peddicord made an assault with intent to rob the said Henry Bonnecke on February 21, 1895, and that immediately after this attempt James Farrell declared he would have the old man’s money if he had to kill him.” So much of this offer as related to the conspiracy by the defendant with others to rob Bonnecke, and to what had been done in pursuance of this conspiracy by two of the conspirators was, we think, competent upon its face. The theory of the commonwealth was that the murder had been committed for the purpose of enabling the murderers to rob the old man without outcry or resistance on his part, and the fact that the defendant was one of four conspirators who had agreed upon a plan to rob him but a few months before the robbery and murder occurred was certainly a relevant and an important circumstance for the prosecution. But when the evidence under this offer was all in it did not sustain the offer. The witness testified that Wilson was present when the other persons named in the offer talked over the subject of Bonnecke’s having money and how it could be gotten; brrt that he took no part in the conversation. No part of it was addressed to him, and no response or assent of any sort was made by him. This did not show a conspiracy to which he was a party. Two of the actual conspirators did afterwards make an ineffectual attempt to rob Bonnecke, but Wilson was not with them nor does it appear that he knew the attempt was to be made. The only spark of evidence to connect Wilson with the conspiracy or the attempted robbery is the fact that he probably overheard some part of the conversation between Peddicord, Farrell and Doran relating to Bonnecke and his money. If the offer had proposed just what the testimony admitted under it established, viz: that Wilson had overheard a conversation between some of his acquaintances showing their purpose to rob Bonnecke if they could, we have no doubt that it would have been promptly rejected.

When the effort to prove a conspiracy to which Wilson was a party failed, the proof of what was alleged to have been done under the conspiracy and in pursuance of it became incompetent. The only thing to connect the defendant with the attempt of Peddicord and Farrell to rob Bonnecke was the alleged conspiracy, and this failing there was no more reason why the defendant should be affected by their crime than by the crimes of any other persons. For this reason we think the evidence, having failed to sustain the offer, should have been withdrawn as the defendant’s counsel asked. But that of which the defendant has a right to complain more seriously is the use made of the testimony of Peddicord by the learned judge in his charge. He said: “ To connect the defendant with the killing, the commonwealth shows by Joseph Peddicord that some time prior to April, 1895, .... he was in company with William Doran, James Farrell and the defendant on the hill west of Altoona; that they had some conversation about Bonnecke’s supposed money which he was miser-like hoarding, and as to the methods by which he could be robbed, but Peddicord says that Wilson took no part in the conversation although he was present.” The learned judge then added: “Doran and Farrell are jointly indicted with Wilson, the present defendant, but are not on trial, Doran not having been taken and Farrell being now in jail. It is further shown that on the evening of February 21, 1895, about dusk, Farrell and Peddicord did attempt to rob Bonnecke but failed .... The commonwealth argues that Farrell and some other persons, one of whom was the defendant, again attempted to rob Bonnecke, and did rob and kill him on the night of April 6 and 7, 1895.” This gave the commonwealth the full benefit of the offer, rather than the fair effect of what was actually proved under it, and is we think a substantial ground for complaint.

The next question is raised by the assignments, numbers seven to ten inclusive, and relates to the admissibility of the so-called confessions made to, and shown by, the professional detectives who were employed to ferret out the murderers of Bonnecke by the officers of Blair county. Soon after the coroner’s inquest was held upon the body of the murdered man the county commissioners of that county employed a detective agency to work upon the case, and to find out if possible who were the murderers and bring them to trial for their crime. This was a proper thing to do. The detectives entered upon their work at once. Suspicion was directed toward Wilson among others, but there were no such incriminating circumstances known as would justify his arrest and trial. A plan, somewhat elaborate and skilful in outline, was adopted to obtain such' declarations from him as would make his trial and conviction possible. It was put into execution with vigor and without any regard to truth or the unconscionable means required. The defendant was led to believe that the detectives about him were the members of a band of outlaws engaged in the commission of great crimes, including the burglary of banks and the plunder of railroad trains, from which large sums of money were realized by them; and that he could secure admission if his record as a criminal was such as to give assurance of his courage and hardihood. He became an applicant for admission to this band, and the so-called confessions are the statements made by him to the persons whom he understood to be prominent in the organization, and in a position to obtain his admission as a member. He alleged that he had been connected with robberies, burglaries and larcenies in Pennsylvania and Ohio, and that he was one of the persons who had killed and robbed Bonnecke. Now we are of opinion that so much of these stories of his own crimes as related to the killing of Bonnecke "was admissible, not as a confession in the ordinary sense of that word, but as a statement made by him relating to that subject, the value of which was for the jury to determine. It was made for a definite purpose which he was anxious to accomplish, viz: to satisfy the supposed criminals by whom he was surrounded that he was capable of crimes as great, and possessed of a record as black, as they, and that he could be trusted implicitly to keep their counsels and to assist in their law-breaking schemes. There was a temptation in the cireumstances under which he was acting to represent himself tobe, if possible, worse than he really was. His attention was on an ulterior object. Confession for the purposes of confession was the farthest possible from his thought. Still, what he said was admissible in evidence against him. It should go to the jury however for no more than it is worth. A confession voluntarily made is entitled ordinarily to great weight. If it is, in the language of Mr. Greenleaf, “ forced from the mind by the flattery of hope or the torture of fear,” induced by representation made to the accused, its value is lost. It should be excluded altogether. If it is induced by what may be called collateral inducements it occupies a kind of intermediate position. Such inducements are to be considered as affecting, not the admissibility of the statements made by the prisoner against himself, but their credibility. Thejr should go to the jury with the inducements that led to them, in order that the jury may see how they came to be made, and the motive that operated on the prisoner’s mind when they were made. The jury can then judge of their value and determine the weight to which they are entitled.

The learned trial judge seems to have followed in part the rule we have indicated and to have sent all the circumstances and inducements leading to the so-called confessions to the jury. The only just ground of complaint is that the attention of the jury was not called distinctly to this subject in the general charge, and the situation and value of statements like those testified to by the detectives pointed out. This duty of the judge under such circumstances is commented on in The State v. Wentworth, 37 N. H. 218, where the collateral inducement was the desire to obtain a reward that had been offered; in a Virginia case, 14 Gratt. 652, where it was the hope of the prisoner to benefit his mother by his confession; in 94 Cal. 112, when it was to aid his sister; in 22 Maine, 171, where it was to save a brother. In all these cases the confessions were admitted, but the collateral inducements under the influence of which they were made yvent with them, to enable the jury to determine the degree of reliance to be put upon them. /But Wilson’s statements in regard to crimes committed at other times, at other places, and upon other persons, having not the least connection with the killing of Bonnecke, were not admissible against the defendant in this case. They served to blacken his character, to arouse indignation against him in the minds of the jurors and to show him to be a monstrous criminal who was capable of any crime in the calendar; but they threw no light on the question the jury had to determine.. If a conviction upon general principles could be defended, then possibly all this evidence relating to other crimes would be proper, but upon a trial for a specific crime, the evidence should bear some relation to the question of the defendant’s connection with the particular crime charged. Proof of other crimes may sometimes become competent for a particular purpose, as in Commonwealth v. Ferrigan, 44 Pa. 386, where the purpose was to show the quo animo of defendant and motive; or in Goersen v. Commonwealth, 99 Pa. 388, to establish identity, deliberation or guilty knowledge; or where the two offenses are connected in character and purpose, as in Kramer v. Commonwealth, 87 Pa. 299; but the general rule as we have stated it above is recognized in all these cases and in the text-books. Many cases in support of it are cited in 6 Am. & Eng. Ency. of Law (2d ed.), p. 533.

/In this connection the question raised by the fourteenth, fifteenth, sixteenth and seventeenth assignments will be most conveniently considered. These assignments all relate to the admission of the testimony of witnesses called to prove an attempt by the defendant to rob one P. A. Schwab, a resident of Altoona, on April 27, 1895. This occurred some three weeks after Bonnecke was killed, and had not the slightest connection with that crime. If it had been offered as part of the case of the commonwealth against the defendant at the trial it would have been rejected as a matter of course ; but the defendant, when on the stand in his own behalf, had denied any connection with the attempt to rob Schwab, and this evidence was offered with a view to contradict him and so affect his credibility as a witness. It was probably competent for that purpose unless the answer of the defendant was made upon cross-examination under such circumstances as to make his answer conclusive upon the commonwealth. We do not find in the record that its admission was excepted to, and its admissibility is therefore not raised in any proper way. If there is ground of complaint it is that the jury was not instructed in the purpose of its admission and the effect to be given to it by them."

The twelfth and thirteenth assignments may also be considered together. It appears that when the defendant was about to close his case in chief his counsel called the attention of the court to the fact that one witness wliom they desired to examine was not present, and asked to have the privilege of calling him out of place on the following day. With this understanding, to which no objection was made, the defendant'rested. On the next day the witness, a lad under thirteen years of age, came into court with his mother. He was called to the stand and the subject to which his attention was to be called was stated. Thereupon the counsel for the commonwealth objected to his examination for these reasons: First, because of his age, next, because the subject to which it was proposed to call the attention of the witness had not been stated when the right to call him had been reserved on the previous day; and last, because the evidence was not properly in surrebuttal. These objections were sustained and the witness excluded. We think this was error. The witness was not incompetent because of his age. If it was alleged that he was unacquainted with the nature of an oath he. should have been examined upon that subject and, if necessary, instructed in the presence of the court. He alleged that he was fully aware of the nature and importance of an oath. Pie was the son of a local magistrate, and had some familiarity with proceedings in his father’s court. His knowledge should have been tested before his rejection upon this ground. The second ground of exclusion was not sufficient. If the commonwealth or the court had asked, before consenting to call the witness out of order, for what purpose the testimony of the witness was wanted, it would have been the duty of the defendant’s counsel to state fairly just what it was. But failing to do this, the consent of the court was given to call him out of order, and with that understanding the defendant rested his case. The calling of him when he came in was a return to the case in chief of the defendant, and if his testimony would have been competent when he was first called and found not to be in the court room it was competent when he was actually called on the following day. This disposes also of the third and last objection, that the evidence was out of order wlien it was proposed to give it. It would have been out of order but Cor the reservation of the right to call him when he came in, made and assented to before the defendant closed his case in chief. The fact which the witness was expected to testify to was one which, if the jury had believed his story, would have made the conviction of the defendant impossible. It was, that he had called at Bonnecke’s house at the direction of his mother on the morning of Saturday, April 6, 1895, knocked at his door and tried to obtain admission, without success. lie had also climbed on the railing at the side of the porch and looked into the room through the window, but could see only a heap, near the door, covered with blankets, and an empty boot laying near it. What was under the blankets lie could not tell. When the officers effected an entrance into Bonnecke’s house on Sunday at-noon they found a heap near the door covered with blankets, and an empty boot near it. On removing the blankets the body of the murdered man was found under them, with one hoot on and the other lying empty on the floor close by, hut not covered by the blankets.

The effect of the testimony of Smith was to fix the murder at an hour prior to his visit to the house on Saturday morning. Wilson was then in the comity jail at Hollidaysburg, and had been for some weeks. His release did not occur until between two and four o’clock in the afternoon of Saturday. The rejection of the testimony of his mother who was called at the same time is the subject of the thirteenth assignment. She was called out of order. The right to call her had not been reserved. It would not have been error in the learned judge if he liad disregarded the question of order and admitted the witness, nor can we say it was error to sustain the objection and reject her. Questions relating to the order of the testimony alone are quite largely in such cases under the sound discretion of the trial judge. The remaining questions relate to the adequacy and fairness of the charge of the learned judge, and are raised by the nineteenth, twenty-first and twenty-second assignments of error. They complain that undue prominence was given to the testimony of some of the witnesses for the commonwealth; that the theory of the defense was misunderstood and, therefore, inaccurately stated to the jury; and that the circumstances calculated to weaken the force of the testimony of the detectives were overlooked or greatly minimized. These objections require us to look in a general way, and very briefly, at the case presented at the trial. Bonnecke was an old man, unable to work, and quite infirm. There were rumors that he had a little money laid away that he was hoarding, but there were no indications of it in his humble cabin or in his own appearance. He lived alone, in a little house containing but one room. His furniture was very poor and very scanty. His food was simple, and was mainly supplied by the charity of his neighbors. He was timid, avoided people generally, was seen but little on the streets, and usually when in the house had the doors securely locked. Most of his neighbors say that he was not seen by them, nor was light observed in his windows, nor smoke rising from his chimney after Thursday night. Some thought they saw him on Friday. Some others are of opinion that they saw him on Saturday, but on neither of these days did any of those who supplied the old hermit with food succeed in getting into his house or getting any response to their knocks on his door or other efforts to attract his attention. His house was finally entered on Sunday, as we have already stated, about- the middle of the day. He was found on the floor dead. His body was covered with the old blankets he had used as covering upon his rude bed. His bed had been torn open, and presented the appearance of having contained in the middle of the straw some small round object which had been removed. His boxes had been searched and their contents left in a state of confusion. The body did not appear to have been affected by the rigor mortis at the time it was found, and there was a little pool of blood on the floor near his head which was not examined, but which the witnesses said did not appear to have coagulated. A handkerchief had been drawn through bis mouth so tightly and tied so securely behind his head that the coroner thought he would have died from strangulation alone, but he had received a blow upon the head that had broken his skull vertically from its top to the base. Very soon after the discovery of this brutal murder the officers of the county determined to unravel the mystery that surrounded it, if possible, and bring the perpetrators of the crime to punishment. For this purpose the detective agency of Barring and McSweeny was applied to, and they detailed men for the purpose of working upon the case and discovering the guilty parties if possible. The detectives caused the arrest of Wilson, and secured by means already alluded to the statements or confessions, as they are called, without which no conviction could have been had on the evidence that was given at the trial. Most of the important evidence for the commonwealth was furnished by the detectives. They and their methods were bitterly assailed by defendant’s counsel. The case was exceptional for several reasons, and the duty of holding the judicial scales evenly was by no means easy of performance. But when the charge of the learned judge is considered as a whole we do not find in it any inadequacy, except as we have already pointed out, nor do we find any indication whatever of either prejudice or partiality. It is true he did not share the bitterness of the defendant and his counsel towards the work of the detectives or towards their testimony, but he left their credibility to the jury. The charge may be justly criticised to some extent for its want of fullness in its treatment of some of the subjects to which the assignments under consideration relate, but nowhere does it seem wanting in fairness, nor does it fail to bring to the notice of the jury the main questions upon which they were to pass. The objections to the charge, therefore, which assert partiality and prejudice are dismissed without further discussion. The assignments of error which we have sustained, however, require us to reverse this judgment and send the case back to the court below for another trial. The verdict may be right in finding the defendant guilty of the murder of Henry Bonnecke. We express no opinion upon that question, but if the jury was influenced or might naturally have been influenced by irrelevant considerations or by the absence of evidence that was competent and relevant, the verdict rendered by them, under such circumstances, ought not to stand. It is for this reason that the judgment appealed from is now? reversed and set aside, and a writ of venire facias de novo is awarded.