McFadden v. Reynolds , 9 Sadler 105 ( 1887 )

Opinion by

Mr. Justice Green:

We are not prepared to hold that where a witness is asked upon the stand to say whether he has committed a crime, he shall be compelled to do so simply because he may, if a prosecution for that crime is subsequently instituted against him, plead the statute of limitations in defense. It seems to us he is protected against criminating himself even to a prosecution. Were he compelled to answer the question as a witness his answer would be sufficient, when testified to by others who heard it, to lay before a magistrate who could commit him to prison to answer the charge in default of bail. It would be also sufficient to place be-* fore a grand jury who could find an indictment against him upon mere proof of his extorted answer. He could thereupon be compelled to appear in the criminal court to answer the charge, and would be obliged to employ counsel to defend him. He would necessarily undergo all the expense and trouble besides suffering the shame, perhaps the ignominy, of defending himself against a criminal accusation made by his own mouth, ■against himself, because he was coerced to do so by the peremptory order of a court clothed with power to commit him indefinitely to prison for contempt in case of disobedience. At least he would be obliged to plead the statute of limitations.; and if the crime were infamous, an acquittal on such a plea would be scarcely better than a conviction.

We have never held that witness might be compelled to criminate himself in such circumstances; and with our present views we decline to hold so now. The first assignment of error is, therefore, dismissed.

The second assignment is better taken. The witness could have answered the question whether the plaintiff was a chaste woman categorically without, criminating himself necessarily. If he answered that she was not chaste, and was then asked as to his means of knowledge, he could have pleaded his privilege if the further answer would criminate him. But as he might have known the fact in other ways than by any personal experience of his own, we think he was bound to answer the question as it was put and we therefore sustain the second assignment.

We sustain the remaining assignments because they cover a practical admission and application of evidence which under our well-settled decisions was not competent. The action was case for breach of a promise to marry. It is perfectly well settled that in such an action proof of seduction cannot be given in aggravation of damages. Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159; Baldy v. Stratton, 11 Pa. 316.

The learned judge of the court below, admitting this to be so, and in fact instructing the jury to that effect, nevertheless indulged in a line of comment which, it seems to us, tended to influence and mislead the jury. He practically took away all the effect of his statement that the birth of a child might not be proved in aggravation, by telling them that they might consider all the circumstances in their verdict. He included in these circumstances “the conduct that he (the defendant) was guilty of in deceiving and duping her in the promise that he made, and his conduct in connection with everything that surrounded the transaction.” Again; he said “Here you axe allowed to consider the disgrace, the feelings of misery, apart now from the child being born, the suffering that this girl may have undergone by reason of this breach of contract, if one took place, and the humiliation that she endured, and the public stigma that the breach of contract may have brought to her. Upon this subject I give you the law in its stringency and, I must say, with some regret; but I cannot help it and it is your duty to apply it to this case.” He then read a portion of the opinion of this court in the case of Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159, but omitted to read the remaining portion which shows that notwithstanding all that had been previously said, it was not competent, and properly so, to give evidence of the seduction in an action on the promise.

There was much more of similar comment in the course of the charge; and of course if the learned judge were merely expressing his personal views upon the base and dishonorable conduct of the man who would be guilty of such conduct, to a mere assembly of listeners, they would be entirely proper and just in all respects. But he was charging a jury in a civil action in which both he and they and we are strictly bound by the limitations of the law; and in such circumstances we think it is not well for the trial judge either to tell the jury that he regrets the state of the law, or to take away practically all its effect by a course of observations which simply tend to inflame the jury into disregarding it. Such we think was the tenor of the charge into which the learned judge was led, no doubt unconsciously, and in the expression of feelings which axe very natural in ordinary circumstances, but are inappropriate in legal proceedings.

Entertaining these views we feel constrained to sustain the third, fourth, fifth, sixth, and seventh assignments.

t Judgment reversed and new venire awarded.