Commonwealth v. Farrell , 187 Pa. 408 ( 1898 )

Opinion by

Mr. Justice Williams,

The indictment in this case charges three persons with the crime of murder in the first degree, in the killing one Honrj Bonnecke. They are the defendant, Prank Wilson and William Doran. Wilson and the defendant were separately tried and Doran has so far escaped arrest. The trial of Wilson resulted in a conviction. A new trial was refused and the case came into this Court by appeal. At the March term, 1896, Farrell, the defendant, was tried and convicted. His application for a new trial was refused and he also appealed. The two appeals were heard in this Court at the same time, and the proceedings upon Wilson’s Appeal, with the opinion of this Court, will be found reported in 186 Pa. 1. For a full statement of the circumstances surrounding the murder, of the preparation of the case of the commonwealth by detectives, and the general questions affecting their credibility, reference is made to the case of Commonwealth v. Wilson, above cited. This appeal involves several questions not raised in that case which we will briefly consider in what seems to us their natural order: The first of these is raised by the second, third and fifth assignments of error, and relates to the admission of expert witnesses. Two things must concur to justify the admission of an expert witness. First, the subject under examination must be one that requires that the court and jury have the aid of knowledge or experience such as men not specially skilled do not have, and such therefore as cannot be obtained from ordinary witnesses. Second, the witness called as an expert must possess the knowledge, skill or experience needed to inform and guide the court and jury in the particular case. Upon such a question such a witness may be called and may testify, not merely to facts, but to his conclusions from the facts, because the court and jury are without the knowledge necessary to enable them to draw the conclusions for themselves without aid. In this case an old pocketbook which had been torn, and mended with thread in a coarse and clumsy manner, had been put in evidence. Another pocketbook, said to have belonged to Bonnecke, which had been repaired by what seemed to be the same sort of thread, was put in evidence for the purpose of proving that the first pocketbook belonged to and had been repaired by Bonnecke. There was nothing peculiar about the first pocketbook, or the thread with which it had been mended, or the stitches taken upon it. ¥e can see no question of art or skill raised here upon which special knowledge was needed, nor did the witness show himself possessed of expert knowledge if it had been necessary. The witness was competent, as any other witness would have been, to testify to any peculiar characteristics of the pocketbook or the thread or the stitches, and the jury could have compared them at their leisure and determined the value of the evidence; but to dignify the testimony by treating it as that of an expert, was to invite the jury to treat it as entitled to some superior consideration, such as the testimony of ordinary witnesses was not entitled to.

The question about the length of time after death when rigor mortis may be expected to set in was a question for expert medical testimony. Long experience and observation might stand in lieu of the study of books and qualify one to speak as an expert upon this subject, but the witness called as an expert upon this question had no medical knowledge, had read nothing on the subject, and had no experience except as an undertaker’s assistant in preparing dead bodies for burial. His attention as an undertaker does not seem to have been specially directed to this question, and he frankly stated that he was not an expert upon the particular subject.

The sixteenth assignment of error raises another question of the admissibility of evidence.

The commonwealth made a written offer to prove by one Joseph Peddicord “ that in 1894 the defendant, with Frank Wilson, William Doran and the witness, had entered into a combination to rob Bonnecke ; that in February, 1895, the defendant and the witness assaulted Bonnecke in his own house and attempted to rob him, and that the same evening the defendant proposed to witness to renew the attack upon Bonnecke and effect the robbery; that the witness declined, and thereupon the defendant swore that he would get Bonnecke’s money if he had to kill the old man to do so.” This offer was limited to no particular purpose, but was made with the idea that it was evidence for the purpose of establishing the guilt of the defendant. It was objected to, and both its competency and the admissibility of the witness were denied. It must be remembered that Bonnecke was killed between the night of the 4th of April, 1895, and the morning of Sunday, the 7th. The defendant could not have reached Altoona earlier than about 9 o’clock on Saturday evening, the 6th of April. It cannot be said to be clear that he was there at all on that night. Our question therefore is, do the facts embodied in this offer tend to show that the defendant did participate on the night of the 6th of April in the robbery and murder of Bonnecke. A threat to rob would have been admissible to show knowledge or motive on the part of the defendant, but there is no legal presumption that such a threat will be executed, such as relieves the commonwealth from the duty to prove the fact it alleges, viz : the participation of the defendant in the robbery and killing alleged. The court however, not only admitted the offer as tending to prove the actual presence at the murder of the defendant, but drew the attention of the jury to it as evidence bearing upon this Subject. The learned judge said in his charge: “The commonwealth offered evidence which it is alleged points to the guilt of James Farrell, the defendant, and proves that he is the murderer or one of the murderers of Henry Bonnecke. Threats made by Farrell after his unsuccessful attempt to rob Bonnecke on February 21, 1895, as testified to by Joseph Peddicord, are relied on by the commonwealth as part of such proof. In this connection however I would caution you not to attach undue importance to the fact that Farrell did attack Bonnecke on February 21,1895. Such fact was properly admissible as part of the res gestae or surrounding circumstances of Peddicord’s testimony, and as a circumstance which might point to the probability of Farrell’s renewing the attempt, but you must not allow it to unduly prejudice you against the defendant.” This was an instruction to the jury that the evidence of the attempted robbery and the threat to renew it had been properly received, and was to be considered as bearing upon the “probability of Farrell’s renewing the attempt,” or in other words, of his guilt of murder as charged in the indictment. The caution not to give “undue importance” to the facts set out in the offer without some distinct statement of what this “ undue importance ” was, was of no value.

We come now to the question raised by the seventeenth assignment. The defendant was arrested at Allequippa, Beaver county, Pa., in November, 1895, some six months after the murder of Bonneeke. He was taken to Altoona, and two or three days later one of the detectives procured a search warrant, returned to Allequippa, and with the aid of a local constable made search in the room and bed which had been occupied by Farrell while at Allequippa. The constable found an old worthless pocketbook in the bed. This it was alleged, had belonged to Bonneeke, had been taken from him at the time of the murder, and kept concealed by Farrell for more than six months. This pocketbook had been torn, and rudely mended with thread of usual size and character. It was sought to connect this worthless pocketbook with Bonneeke by showing that he had a smaller pocketbook that had been mended in a similar manner. For this purpose a witness was put upon the stand as an expert to prove that the repairs upon each pocketbook had been made by the same person with the same thread. The witness declined to say that the repairs on both were made by the same person. The thread used had been the same in number on both, as he thought, but it was a common number and was not a certain basis for an opinion that the work had been done by the same person. This evidence was submitted to the jury in these words: “If the pocketbook in question, to wit: the pocketbook found in the bed at Allequippa, was the pocketbook of Henry Bonneeke, and was stolen at the time of his death in 1895, and was taken to Allequippa by Farrell, and was concealed in his bed, then there would be a strong presumption arising from the possession of stolen property, that Farrell was the robber or one of the robbers who stole said pocketbook, and unfortunately it would strongly tend to show that he is guilty of being concerned in the death of Henry Bonneeke.” The other side of this subject was presented thus: “ On the contrary if you have a reasonable doubt whether this pocketbook ever belonged to Henry Bonneeke, jmu should dismiss the circumstance of the mending of the pocketbook from the case and allow it to have no weight against the defendant.” The only consideration brought distinctly to the notice of the jury is the identity of the pocketbook brought from Allequippa as one of those which the murdered man owned and had in his possession at the time of his death. But suppose this be conceded, it by no means follows that the defendant either took it from the murdered man or placed it where, it was found. What motive had the defendant if he had been one of the murderers of Bonnecke to keep this pocketbook ? It was neither useful nor ornamental. Its possession could only be a source of constant danger. But if he really did desire to keep it, why put it in liis bed, where it would naturally be discovered every morning when his bed was made up for the day? It might have been put there in his absence. It might have been put there even after the search began. Which seems most probable, that Farrell had kept this pocketbook for six months in his bed, or that it had found its way into the bed after his arrest? The credibility of this story was plainly for the jury, and they should first have determined its value.

In this connection the tenth assignment may be conveniently considered. The murder of Bonnecke occurred at a time when the attention of none of the surrounding citizens was attracted to it. The night when it was done was as wholly unknown as the persons by whom it was done. A detective agency was employed to investigate the case and to try and bring the guilty ones to trial and conviction. This agency spent much time on the case, and it was by them that the arrest of the defendant was procured. The detectives hunted up the evidence against him, or furnished it as the result of their interviews with him, or their investigations into his habits and surroundings. As tending to show their interest in the case, and to some extent affecting their credibility, they were asked upon cross-examination to state the general character of the contract with the county and how their pay was to be adjusted. This was objected to and excluded by the court. But why was it not competent ? Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination. If the witness had stated that his pay was conditional upon, or was to be affected by, the result of the trial in any manner, it cannot be doubted that such a bargain would have shown just what liis interest in the conviction of the defendant was, and been entirely proper for the jury to consider in determining his credibility. So, also, if he or his superiors had received a large sum from the county for services, and if they were really conducting the prosecution for the county, that fact could be shown upon cross-examination. It might not have been a very important fact, but it was a competent one upon cross-examination. There are other questions raised by the assignments of error that invite discussion, but their importance in this case is not such as to require it. Those we have considered are conclusive of this appeal and require us to reverse the judgment appealed from and award anew venire.

Let an order be entered accordingly.