Commonwealth v. Mudgett , 174 Pa. 211 ( 1896 )

Opinion by

Me. Justice Williams,

This is a voluminous record. An examination of it shows that the trial of the defendant furnished some unlooked-for situations and dramatic incidents, but no one of them seems to have been the result of anything irregular or sensational in the manner or rulings of the learned trial judge. On the other hand it is apparent that they were due to the extraordinary character of the circumstances with which the defendant had surrounded himself, and to his interference with the usual metnods of trial. Indeed the assignments of error, although thirteen in number, have been intended to raise no questions except such as may be characterized as general questions of law, and they have been presented in 'this court and discussed in the oral argument in a thoroughly lawyerlike manner, and with decided ability. We proceed to consider them in their order. The first, second, third and fourth assignments relate to the admissibility of the testimony of Georgiana Yoke who was called as a witness by the commonwealth and whom the defendant alleged to be his lawful wife. At the time this witness was called there was evidence before the court showing that the defendant had an establishment of some sort at Willamette in the state of Illinois which was known, at least to some of his acquaintances, as his home, where as H. H. Holmes he lived with a woman who was understood to be his wife. The evidence further showed that a letter which had been left at this establishment with this woman in his absence, by the witness Gass, had been promptly replied to by H. H. Holmes; and that in the answer he referred to this woman as his wife, saying, “ I am in receipt of a letter from my wife stating that you called on her in regard to Mr. Pitezel. She also enclosed me clipping from paper which I presume you gave her.” All this evidence tending to show that the prisoner was á married man, and that bis wife lived in Illinois and was known as Mrs. Holmes, was before the court when Georgiana Yoke was called. There was nothing in the name of the witness, and there was nothing in her testimony when she was first on the stand, to suggest that she was the wife of the prisoner, or to throw any doubt upon his being, as he appeared to be at that stage of the evidence, the husband of the woman of whom he had written as his wife. An objection to her competency taken when she was first called and examined would have had nothing on which to rest. At a later stage of the trial she was recalled by the defendant- and examined upon this subject. She then stated that she had been married to the prisoner by a clergyman in the city of Denver in January, 1894. That his name was then Howard, and that she was married to him by that name. She stated further that during much of the time between January .and the following November she had lived with him as his wife, supposing that she occupied that position towards him; but that she had learned before his arrest that he had been -married some time previously to a woman living in Gilmanton, N. H., whom she understood to be still living. She had heard still earlier of the woman at Willamette, but did not understand that Howard had been lawfully married to her. She had talked with him about the woman at Gilmanton while they were at Boston not long before his arrest. His sister had told her that the prisoner had accounted for having married her while his wife was living at Gilmanton by telling his father’s family that he had been seriously injured in a railroad wreck; that she (Miss Yoke) had nursed bim and had been instrumental in saving his mind, but had married him before he knew where he was or what he was doing. This story she told the prisoner. He did not deny or explain the story, but said in his own defense that when he married her he had been told that the woman at Gilmanton was dead. The witness was apparently satisfied tbat her marriage was not valid and she had resumed-the use of her maiden name. As she was competent, prima facie, when called and examined, the burden of showing her incompetency was on the prisoner who alleged it. The testimony of Miss Yoke to which we have just referred was given for that purpose, and it was all the evidence upon that subject. The fair 'effect of it was to show that no legal marriage had taken place, that Miss Yoke had been cruelly deceived, and that the legal wife of the prisoner lived at Gilmanton, N. H. Let us grant that if the defendant had been on trial for bigamy the testimony of Miss Yoke might not have been sufficiently definite as to the fact- of the first marriage to justify a conviction of the defendant, yet we must remember that so far as the competency of the witness was concerned the burden of proof was not on the commonwealth. She was apparently competent. The burden of establishing her incompetency by proof of a lawful marriage between himself and her was on him who alleged it. The learned judge would have been justified in doing what the prisoner’s counsel complain that he did not, viz: treat this question of competency as a question of law, and overrule the objection to her testimony at once. What he did was more favorable to the prisoner than he had a right to ask. He submitted the question of the legality of the marriage to the jury, instructing them that if they found it to be valid they should reject the testimony of the witness altogether. We do not see how the prisoner can expect successfully to complain of a ruling that gave him one more chance for a favorable decision upon the question of the competency of the witness than he had a right to ask.

The fifth' and sixth assignments are in effect but a different mode of raising the question we have just considered. They complain of the submission of the testimony of Miss Yoke to the jury. She had been examined very fully as to the movements of the prisoner on that Sunday on which he had stated to Mr. Linden, superintendent of police, that he saw and arranged the dead body of Pitezel in the Callowhill street house. This evidence the learned judge referred to, and submitted to the jury. It is not suggested that her evidence is not fairly repeated, nor that any statement is attributed by the court to her that she did not make. The burden of the assignment of error must therefore be that the testimony was treated by the learned judge as competent and as properly before the jury. This was not an error for the reasons given when treating of the question of the competency of the witness, and we do not see that it was inconsistent with the action of the learned judge in submitting that question to the jury, since it was necessary, at least provisionally, to call their attention to the effect of the testimony and the questions to which it was related. These assignments are therefore overruled. The thirteenth assignment should be considered in this connection as it is directed against the action of the court in submitting to the jury the question of the existence of a legal marriage between the prisoner and Miss Yoke at the time she was called as a witness, and the direction to them to consider, or to exclude from consideration, her testimony as they might find upon that question. We have already said that while the submission of the question might not have been necessary, we cannot see that it did the prisoner any harm. The verdict undoubtedly shows that the jury decided this question against the prisoner, but so we think the learned judge should have done if he had undertaken to pronounce upon the effect of Miss Yoke’s testimony in regard to the legality of her marriage to the prisoner. The prisoner cannot complain that he should be taken at his word upon this question; and the story told by him to his father’s family which Miss Yoke afterwards called to his attention, and his excuse made to her for marrying her while he had a wife living at Gilmanton are enough to discredit the alleged marriage. We do not see how the jury or the court could have done otherwise than say that the prisoner had not successfully shown the witness to be incompetent; and whether the court had disposed of the question in the first instance by an instruction, or allowed the jury to dispose of it without any controlling direction upon the subject, the prisoner had no ground for complaint. The twelfth assignment is to the refusal by the learned judge to allow an exception to the opening address of the district attorney. As we understand the situation the objection to the opening address was not made at the time of its delivery but several days later, near the close of the trial. The district attorney had in his opening stated tire case of the commonwealth. He had detailed in their order the incidents connecting the prisoner with Pitezel, with the procurement of the policy of insurance on his life, with his subsequent death, the identification of the body, the absorption of the insurance money by the prisoner, and his subsequent movements. He called attention to the part taken by Alice in the identification of her father’s body, and to the fact that she was kept thereafter from a meeting with her mother, whom the prisoner had led to believe that her husband was still alive. He then spoke of the remarkable journeys upon which Alice and her brother and sister were moved in one group, Mrs. Pitezel and her other children in another, and Georgiana Yoke by herself or in company with the prisoner in a third. He told how they went from place to place, near to each other, were housed at the same time in the same city, but always without meeting, until one by one the three members of one group disappeared. He then spoke of the finding of their remains and of the powerful array of circumstances connecting the prisoner with their death, and the disposition of their bodies. The theory of the-commonwealth was that the motive for the killing of Pitezel was to secure the insurance money; and that the killing of Alice and the two children who were with her grew out of his desire to prevent Mrs. Pitezel from knowing of the death of her husband and of her consequent right to the insurance money. The several homicides were thus alleged to be connected, to have a-common motive, and to form parts of one general plan.

In opening his case it was natural for the district attorney testate, indeed it was his duty towards the prisoner to state fully., what he intended to offer for the consideration of the jury bearing upon his guilt. This he did do, and so far as we are advised, without objection from the court or the prisoner. The trial proceeded upon the lines indicated in the opening, until the subject of the disappearance and murder of the children was reached. An objection was then interposed by the prisoner’s counsel on the ground that the evidence offered was intended to show the commission of an independent crime not charged in the indictment. After some consideration the objection was sustained by the learned judge and the evidence excluded. Then as we understand the course of the trial, and not until then, the application was made for leave to except to so much of the opening address of the district attorney as related to the excluded evidence. The learned judge well said in answer to this request that there was no method by which an exception could be sealed by the court to statements in the address of an attorney days after they had been made; and that if any statement made by the district attorney had been deemed objectionable the attention of the court should have been called to it at the túne when it was made and when its correction was possible. To this we are disposed to add another consideration, viz : that such a practice would require the trial judge to anticipate the course of the trial and decide upon the admissibility' of evidence in advance of its being offered. We have no doubt of the power, nor in a proper case of the duty, of the court to supervise the addresses of counsel so far as may be necessary to protect prisoners or parties litigant from injurious misrepresentations and unfair attack, and the jury from being misled. When this power should be exercised must be left to the sound, discretion of the judge and he should not hesitate to act where the fair administration of justice requires him to do so. But there was nothing in the address of the district attorney in the opening of the case of the commonwealth that either the defendant’s counsel or the court seemed at the time to think required the exercise of this discretionary power. The subsequent action of the court in rejecting a part of the ease of the commonwealth did not have a retroactive effect upon the opening address. It is probable that the learned judge entertained some doubt about the admissibility of this evidence and gave, as he should always do, the benefit of his doubt to the prisoner. But if he had admitted it we are not prepared to say it would have been error. Assuming the correctness of the theory of the commonwealth the evidence was admissible under the authority of a line of cases among which are Turner v. The Commonwealth, 86 Pa. 54; Kramer v. The Commonwealth, 87 Pa. 299; Commonwealth v. Goerson, 99 Pa. 898, and the Commonwealth v. Bell, 166 Pa. 405. But the decision of this question is not necessarily involved. It is enough for the purposes of this case to dispose of the question raised by the assignment and hold that there was no error in refusing the request for an exception to the address of the district attorney made several days after the address had been completed.

/’The next question^following the natural order of the assignments, is that raised by the eighth. It ¿relates to the admission of the story told by Mrs. Pitezel about the manner in which she saw and recognized the remains of three of her children within a few weeks after the death of her husband. This was part of the general story of her search after her husband whom she supposed to be still alive, and the three children who were kept just a little way ahead of her until one by one they had disappeared. The search was made under the control and direction of the prisoner. She followed on where he promised her husband would come, and her children would meet her. During all this time he knew her husband was sleeping in the Potters’ field. He knew that first the boy and then Alice and her sister had gone out of sight while under his general care and their bodies had been mutilated or concealed. She saw them, or their remains, at last. When and how she saw them she was allowed to state, and to that extent at least it was competent for her to speak of her children, regardless of the question raised by the assignment of error last considered. The whole story of Mrs. Pitezel has a unity of character; and its incidents are so affected by fhe prisoner’s acts and declarations in regard to her husband, and his whereabouts, that we do not see any reason for rejecting as irrelevant any portion of it. We think also that it had a direct bearing upon the question of motive. At least it was for the jury to say from it whether the persistent concealment of Pitezel’s death from his wife and his representations to her that the insurance money had been obtained by fraud, were not induced by his desire to escape litigation over the money and to avoid the suspicion of murder being started against him in her mind.

The ninth assignment is directed towards a statement made by the learned judge in his charge to the jury. Speaking of the death of Pitezel he said “You will notice by the testimony which was read to you that the doctors who examined him say his death was caused by chloroform poisoning and that it could not have been self administered.” This it is alleged was wholly unwarranted by the evidence. As to the first part of this statement there could be no complaint, for the fact that the deceased came to his death by chloroform poisoning was practically conceded by the prisoner. The contest was over the question whether the poison from which he died was self administered and his death due to suicide, or was feloniously administered by the prisoner, and his death due to murder. In the interview which was testified to by R. J. Linden, superintendent of police, the prisoner gave his own account of Pitezel’s death. He found him as he alleged on the floor of a third story room in the Callowhill street house, dead. He said he was led to the third floor by a note left for him on the table in the front room on the first floor, directing him to search for a letter in a bottle in a closet opening off the same room. In the bottle he says he found a long letter telling of the purpose of the writer to commit suicide and that his body would be found on the third floor. Going to that floor he alleges he found Pitezel, dead. A large bottle with the chloroform stood near by and leading from it to the dead man’s mouth was a tube with a quill inserted in it so as to reduce the aperture for the flow of the fluid. He says he felt that the appearances of suicide should be removed or a defense might be made to the policy upon that ground. To do this he dragged the body down to the second floor, broke the bottle, scattered some inflammable liquid over the face and beard of the dead man and set it on fire to give to the body and the room the appearance of an explosion, and the happening of death by accident. The theory of the defense included therefore the idea that Pitezel’s death was due to chloroform poisoning, and the objection must relate therefore only to the statement that the doctors had testified that the poison could not have been self administered. The post mortem examination had disclosed the presence of an ounce and a half of chloroform in the stomach at that time. How did it get there ? As the story of the prisoner indicated, by a slow process of self administration by means of the tube, or in some other manner ? Upon this subject medical experts were called. They explained the- effects of the drug upon the nerves and brain, and upon the lining of a living stomach. They gave two reasons why the chloroform could not have been self administered in the manner alleged by the prisoner. In the first the intoxicating quality of the drug would cause such semiconscious or purely involuntary motions of the muscles and changes in the position of head and body, as would break the connection between the bottle and the mouth by means of the alleged tube. In the next place the chloroform had not affected the lining of the stomach; in other words, it had been introduced into the stomach after death. This testimony fully justified the statement of the learned judge now complained of, and the assignment of error is overruled.

The eleventh assignment alleges error in the answer to a point submitted on behalf of the prisoner. The instruction asked by the point was somewhat involved. It was in substance a request for an instruction that if the jury should believe the deceased died from chloroform poisoning, and that it was possible for him to have administered it to himself, and that this theory was as consistent with the facts in the case as that it was administered with criminal intent by the prisoner, then the verdict should be not guilty. This was another way of saying that if the theory of suicide was as consistent with the facts as the theory of murder then the prisoner should be acquitted, and it might have been affirmed without more. The answer though not categorical was in effect an affirmance. It was, “ If you believe he (the deceased) did it himself, why of course the prisoner is not guilty.” When to this is added the general instruction that the burden of proving the guilt of the prisoner beyond a reasonable doubt remains upon the commonwealth from the beginning to the end of the trial, it is very clear that the jury could not have been misled. If therefore the jury adopted the theory of suicide, or if being unable to adopt it they were yet unable to accept beyond a reasonable doubt the theory of murder, in either event they were told the verdict should be not guilty. This fully guarded the rights of the prisoner, even if it be conceded that a categorical affirmance of the point would have been in better form.

This brings us naturally to the tenth assignment of error which denies the clearness and adequacy of the exposition by the learned judge of the doctrine of the reasonable doubt. The passage from the charge embodied in the assignment of error is the least important part of the instruction given to the jury upon this subject, and does not fairly represent the learned judge. He said in immediate connection with the passage complained of, “ In all criminal cases, gentlemen, it is essential that the defendant shall be convicted by evidence which persuades the jury of the guilt of the prisoner beyond a reasonable doubt. By a reasonable doubt I do not mean an obstinacy or a resolution not to consider the testimony of the witnesses carefully. But it is that condition of the mind in which hesitancy arises after having given the evidence a fair consideration and you find yourselves unable to come to a conclusion as to the guilt of the prisoner.” This was a full and adequate presentation of the subject. Take the passage embodied in the assignment in connection with that we have just given (and they stand in immediate connection in the charge), and it is apparent that the prisoner has no just ground of complaint because the doctrine of the reasonable doubt was not fully stated, and brought into sufficient prominence.

The remaining assignment is to the whole charge, which it is insisted was wanting in clearness, was not impartial, but was calculated to prejudice the minds of the jurors against the prisoner by giving undue prominence- to such circumstances and considerations as were hurtful to him. It must be borne in mind that the defendant called no witnesses. The evidence before the court and jury was only that of the commonwealth, which had been gathered together for the purpose of clearing up the mystery surrounding the death of Pitezel and fixing responsibility for it upon the prisoner. His real reliance was upon the reasonable doubt. The web of circumstantial evidence that had been woven about him consisted of many threads, but the web taken as. a whole was strong. It was impossible for the learned trial judge to present the case to the jury in an intelligent manner without the strength of the circumstantial evidence being felt. This was not due to the rhetoric of the learned judge, for lie indulged in none. It was due to the convincing character of the facts and circumstances themselves and to the completeness with which an adroitly arranged and boldly executed scheme had been unraveled by the commonwealth, and its details laid before the court and jury. We have examined this charge as a whole, carefully, and with a view to the question raised by this assignment, and we cannot agree that it is inadequate or that it is wanting in fairness of spirit. The evidence was reviewed, for the benefit of the jury, with reference to its bearing upon the great questions submitted to them for final determination. These were- stated in their proper order: First, Was the body that was found in the Callowhill street house the body of B. F. Pitezel ? This seemed to be quite clear of any difficulty. Second, if the body was that of Pitezel, did his death result from chloroform poisoning ? This was asserted as a fact by the medical witnesses, and was assumed by the prisoner in his statement to superintendent Linden. Third, if Pitezel died from chloroform poisoning was the poison self administered with suicidal intent, or was it feloniously administered by the prisoner ? This was the only real point of controversy. Finally, was there upon the whole case a reasonable doubt of the prisoner’s guilt of the murder eharged in the indictment ? This review was not elaborate, but it was adequate. It presented the questions of fact clearly, and laid down the legal rules by which the jury should be- guided in investigating and determining them. We are satisfied that this assignment is without merit and that it should be overruled. The defendant had a fair trial, and that is all he has a right to demand. At one stage of the trial he was placed perhaps at a disadvantage for a short time by his own conduct in dismissing his counsel and assuming the responsibility of conducting his own defense; but the court was in no sense responsible for this. The prisoner and his counsel were; and the learned judge did all that could reasonably be done to protect him from himself, as well as to secure to Mm a fair trial, upon evidence restricted to circumstances of the admissibility of which there was no reasonable doubt. In no respect has any just ground of complaint been made to appear, and the judgment must be affirmed.

It may be well before concluding this case to say that the object of a trial before a jury is to ascertain, with as much certainty as can be attained in a human tribunal, the guilt or innocence of one 'charged with crime. When as the result of such a trial a verdict has been rendered against the prisoner, it ought not to be set aside by the trial judge, or by proceedings in a court of error, unless in some essential particular the trial has been erroneous. No merely technical or formal objection not affecting the result should be listened to. It is neither for the credit of the courts, for the interests of society, nor does it tend towards the repression of mob violence or the preservation of good order, that the course of justice should be blocked or turned aside by technical objections which however valuable they may once have been, are now, and long have been, empty shells ; or by verbal distinctions that in this age mark no real differences. The prisoner has been found guilty of murder in the first degree, by a jury, after a protracted and a fair trial. No substantial error in that trial has been pointed out. The evidence fully sustains the verdict and we are not disposed to disturb it. All the assignments of error are overruled, and the judgment appealed from is .affirmed'.